Business Law- Fundamental Rights and the Canadian Court System -Chapter 1 & 2
Where do legal principles come from?
1. Canadian Constitution-Supreme Law
No other law or principle can contradict the supreme law
Constitution Act of 1867
In 1867, the BNA (British North American) Act outlined the division of powers between the federal and
Federal Government (section 92): included matters of common interest (peace, order and good of
government) in relation to all matters, except those given to the provincial government.
Provincial Government (section 91): gives provinces the exclusive jurisdiction over all matters that are
local or private in nature, in the province.
Ultra Vires (outside of your power): if you cross the line and do something in which you don’t have the
power to do, you have acted outside of your power and the law you’ve created is unconstitutional.
Businesses can challenge a law as being ultra vires regarding which division of power in the constitution
Ex. A provincial government passed a law creating its own currency and issues dollar bills. This would be
ultra vires because of several sections of the constitution-section 91, 14, 15, 18.
Constitution Act of 1982
In 1982, the BNA Act was returned to Canada, and was changed to the Constitution Act of 1982. The Charter
of Rights and Freedoms was incorporated into the constitution.
The Charter of Rights and Freedoms: a piece of legislation that sets out all the fundamental rights of all
Canadians. It is Supreme Law, which means no other law can contradict it. The principles of the charter take
precedence over any federal or provincial laws.
Human Rights Legislation: ensures that individuals are not discriminated against by the actions of other
individuals, corporations and governments.
Human Rights Act: lists a number of grounds on which discrimination is not permitted, such as religion, country
of origin, and disability. It involves harassment and systematic discrimination.
In a situation where an individual’s rights are violated, the charter doesn’t necessarily apply. In some
circumstances, human rights acts may apply, since they regulate actions such as discrimination by
individuals, corporations or governments.
Notwithstanding Clause: A clause in the charter permits governments to enact laws that can violate rights
and freedoms under specific sections of the charter, as long as they expressively state that the law is
being passed under section 33.
The Supremacy Clause: the Canadian constitution is the “supreme law of Canada,” and any law inconsistent
with it has no force of effect. The law cannot be enforced.
Discrimination: is the act is treating someone differently on grounds that are prohibited by the human
rights legislation. Section 3 of the Canadian Human Rights Act sets out grounds for discrimination.
Systematic discrimination: is discrimination that is the consequence for the policy, whether the effect of
discrimination was intended or not. For example, a policy that a police officer be 6-feet tall would
discriminate on gender and race.
Harassment: any unwanted physical or verbal conduct that offends or humiliates the individual at whom it
is directed. Threatening, intimidating, or discriminating against someone who has either filed a complaint,
or who is providing evidence or assistance in complaint proceedings, is a summary conviction offence under
the Federal Human Rights Act.
Due Dilligence: a defence to certain charges, by doing everything reasonable to prevent the problem
leading to legal liability.
Bonefied Occupational Requirement (BFOR): A genuine requirement for a job, such as the need to wear a
hard hat when working on a construction site; a BFOR is a defence that excuses discrimination on a
prohibited ground when it is done in good faith and for a legitimate business reason. Release: a written or oral statement freeing another party from an existing duty.
Claim: a written statement pr basic summary of a plaintiff`s allegations against a defendant in a lawsuit.
Confidentiality: the obligation not to disclose any information without consent.
Undue Hardship: the duty to take a positive step towards avoiding discrimination. For example, creating a
workspace that is, for example, wheelchair accessible, can involve some expense
Release: a written or oral statement freeing another party from an existing duty.
2. Statute - Government Law (include acts)
New laws introduced by the government
Laws can be characterized in 3 different ways
Private or Civil Law: governs disputes between individuals
Criminal or Regulatory Law: governs disputes between individuals and society
Constitutional Law: governs disputes between the government and law makers
Provincial Human Rights Legislation: when an individual’s rights are violated, the provincial human