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RSM225H1 (13)
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Ch1 Legal System Overview.doc

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Rotman Commerce
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Dan Shear

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CH. 1: LEGAL SYSTEM OVERVIEW (ONTARIO) A. Sources of Law: (1) Levels of Government:  Canada has one federal government, 10 provincial governments (e.g. Ontario), and 3 territorial governments (e.g. Yukon)  laws are passed by federal government through “Parliament” (this is located in Ottawa)  laws are passed by provincial governments through “Legislature” (in Ontario this is located at Queen’s Park)  provincial governments can create “municipal” governments (to run cities, towns, etc.)  municipal governments are created by statute  laws are passed by municipal governments through municipal “Council” (in Toronto this is located at City Hall) (2) Laws Made by Government:  called “statutes” (municipal laws are called “by-laws)  some statutes have provisions that allow government (i.e. ruling party) to make further laws without having to go back to Parliament/Legislature  the laws made under these powers are called “regulations” All rights reserved.00 – 2011 2  statutes and regulations override “common law” (described below)  legal authority to make statutes is subject to Canadian Constitution and Charter of Rights and Freedoms (see below)  legal authority to make regulations is subject to what statute specifically allows (also subject to Canadian Constitution and Charter of Rights and Freedoms)  legal authority for municipality to pass by-laws is subject to what statutes specifically allow (also subject to Canadian Constitution and Charter of Rights and Freedoms) (3) Court Cases (the “common law”): (a) Courts follow past cases – “theory of precedent”:  theory:  decisions must be consistent with past court cases having “similar” facts  how close is “similar”? unclear, open to court’s interpretation  court not required to follow past court cases if not “similar” facts  rules:  lower courts must follow past decisions of higher courts in same province All rights reserved.00 – 2011 3  lower courts must consider (but not necessarily follow) decisions of higher courts of other provinces  courts must consider (but not necessarily follow) decisions of same level of court in same province  all courts (except Supreme Court of Canada) must follow decisions of Supreme Court of Canada)  courts may consider (but do not have to) decisions of lower courts in same province or same or lower courts in other provinces  summary – if the court is in Ontario:  past case in Ontario ● if higher court: follow ● if same level: consider ● if lower level: open choice  past case not in Ontario ● if higher court: consider ● if same level: open choice ● if lower level: open choice  past case SCC ● all levels must follow (except SCC) (b) Courts making new laws:  theory: courts generally interpret and apply laws, not make them  law-making is left up to elected governments (since these are accountable to society)  Daniel R. Shear 2000 – 2011 All rights reserved. 4  practice: courts sometimes make new laws when deciding court cases  because of theory of precedent (above), these cases may have to be followed by other courts  but note that judges are NOT elected, so they are not accountable to society (society cannot vote judges out of office)  governments can override “law-making” by judges, except where courts make new laws involving interpretation of Charter of Rights and Freedoms (see below) (c) Court System  “judges”:  decide court cases  not elected (they are instead appointed by government)  levels of courts:  trial court (1 judge)  parties bring witnesses, evidence  party suing is called “plaintiff (pf)” and party defending is called “defendant (dt)”  court of appeal (3 judges – majority decision) All rights reserved.00 – 2011 5  no witnesses or new evidence – decide whether trial court erred in interpreting or applying the law  Supreme Court of Canada (9 judges for most cases – majority decision)  no witnesses or
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