Textbook Notes (363,135)
Canada (158,215)
RSM225H1 (13)
Chapter 2

RSM225H1 Chapter 2 Notes

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University of Toronto St. George
Rotman Commerce
Jaclyn Seidman

RSM225H1 Textbook Notes Chapter 2: The Machinery of Justice  Subcategories of public law: o Constitutional law o Criminal law o Taxation  Subcategories of private law: o Contract law o Tort law o Property law  Laws are divided into two other basic categories: o Substantive law  The rights and duties that each person has in society.  I.e. the right to vote, to enter into contracts, to perform contractual obligations etc. o Procedural law  Rules that deal with how substantive rights and duties may be enforced.  The development, evolution, and relative importance of case law vary from jurisdiction to jurisdiction depending on the legal system adopted by the jurisdiction.  Two types of legal systems: o Civil law  The system of law involving comprehensive legislated code, derived from Roman law that developed in continental Europe and greatly influenced by the Code Napoleon of 1804.  Requires that all law be consolidated into a consolidated body of legislation known as the civil code.  If the code does not seem to cover a new problem, the courts are free to settle the problem from general principles in the code.  Used in all of Europe, most of Scotland, much of Africa, the whole of South/Central America, Quebec (most of private law), Mexico and southern US. o Common law  The case-based system of law originating in England, which is based on the recorded reasons given by courts for their decisions.  Used in most of the English-speaking world and is a significant part of the law of many non-English-speaking countries that were part of the British Empire (i.e. India, Pakistan).  Roman law: the system of law codified by the Eastern Roman Emperor Justinian in the 6 century.  Civil law values legislation over case law (similar cases may be decided differently), and common law gives case law the same or sometimes greater value than legislation.  Whether in civil law or common law countries, judges must be interested in, and influenced by, what other judges have decided in similar cases (need for consistency).  If people are to be able to find out where they stand and to act with reasonable certainty, the law itself must be fairly predictable. o Consistency among cases is key (easy to predict future outcomes).  Judges develop principles that describe the similarities between cases. o Principles are then built into a body of doctrine – a framework of predictable rules that serves as background for the vast majority of legal relation.  Theory of precedent o Latin phrase stare decisis: to stand by an earlier decision. o The theory is not absolute:  Judges may be influenced by all prior decisions, but they are only bound to follow decisions of a higher-level court.  In order to be fair, precedents bind only the same circumstances.  No two sets of facts will ever be the same.  Judges may distinguish cases by dwelling on minor differences. o Allows them to adjust the law rather slowly to changing circumstances and values. o The theory makes it hard for judges to respond to rapid change in society.  They may be forced to directly overrule an earlier decision.  Distinguish: identify a factual difference that renders a precedent inapplicable to the case before the court.  In order to overrule an established precedent, the matter must be addressed by a court higher than the one establishing the initial precedent. o Supreme courts may overrule themselves when they deem cases to have been incorrectly decided or if the decision would be manifestly unjust.  You cannot assume that the conclusion decided in a precedent is the only possible outcome for future cases.  The government source of law is referred to as: o Legislation  May be passed by Parliament and by provincial legislatures.  The Cabinet may also legislate within certain limited areas by issuing orders-in-council. o Statutes  Every province has passed statutes providing for the creation of municipal governments and for their supervision.  Municipal by-laws and regulations are a form of statute law. o Acts  Subordinate legislation: law created by administrative agencies whose authority is granted by statute in order to carry out the purposes of the legislation.  Codify: set down and summarize in a statute the existing common law rules governing a particular area of activity.  Strict interpretation: courts apply the provisions of a statute only where the facts of the case are covered specifically by the statute.  Liberal approach: statutory interpretation that considers the legislative intent, purpose, and history of the statute, as well as the context of the language.  Two main classes of legislation: o Passive  They prohibit an activity formerly permitted or else remove a prohibition.  The legislation does not presume to supervise and regulate peoples’ actions.  Left to an injured party or law enforcement to bring it to the courts. o Active  Gives the government itself the power to carry on a program – to levy taxes and to provide revenue for the purpose stated in the statute  May authorize a subsidy to be given for a particular economic activity and for an agency to supervise and regulate the activity.  Parliament cannot run a program requiring constant supervision as they have a lot of other duties to do.  Important regulations (subordinate legislation) are first drafted by the agency itself and then the minister responsible for the agency brings them before the Cabinet in the form of an order-in-council. o Lesser regulations may be authorized by the minister, the head of the agency, or even a designated officer of the agency.  System of courts: the organization of courts into a hierarchy that designates the responsibilities of the court and determines the importance of the precedent; the standard system has three levels: trial, appeal, and final appeal (Supreme Court).  Early common law precedents borrowed from: o Canon law  Law created by the Church, which had its own jurisdiction and courts in matters pertaining to itself, family law, and wills. o Roman law o Feudal law  A system of land ownership rooted in sovereign ownership: land was handed down to lords who gave possession of parcels of land to lesser “royals” in exchange for military service and loyalty. o Merchant law  Rules and trade practices developed by merchants in medieval trade guilds and administered by their own courts.  As more and more precedents were formed, their importance began to grow within the legal system and the need to draw on outside sources fell.  Common law soon became very formal, with much of its cumbersome procedure rooted in ancient customs and superstitions.  Writ: an ancient form required in order to take a grievance to court. o Without an appropriate writ, the court would not grant a remedy.  People began to petition as old writs no longer provided relief for many wrongs suffered by innocent parties. o Led to the king hearing petitions and granting relief himself in some cases (job was then transferred to the king’s chancellor).  Court’s of chancery: a system of courts under the king’s chancellor and vice- chancellors developed from the hearing of petitions to the king – courts of equity.  Equity: rules developed by the courts of equity as exceptions to existing rules of common law.  The courts of common law generally only awarded monetary damages to injured parties (usually due to a breach in contract).  Equitable remedies: new remedies created by the courts of equity to address situations where money damages did not solve the problem.  Specific performance: an order by court of equity to carry out a binding obligation.  Contempt of court: a finding by a court that a party has refused to obey it and will be punished.  In 1865 the British Parliament passed an act merging the courts of common law and equity into the single system known today (Canada followed shortly after).  Equity provides a “conscience” for our modern common law. o It prevents the law from straying too far from reason and fairness (pivotal in the link between law and ethics).  A basic court system: Final Court of Appeal Court of Appeal Trial Court  The courts of first instance (trial courts) o Also called courts of original jurisdiction because actions begin and trials take place in this court. o Witnesses are called and initial judgement is rendered.  The court of appeal o A party dissatisfied with a decision in a trial court may appeal to the court of appeals in the hopes the decision will be reconsidered. o Appellant: the party who petitions for an appeal. o Respondent: the party who defends on an appeal. o No new evidence is given, no witnesses called, lawyers on each side simply argue their case (with the judge looking at the written trial record).  The appellant side will argue the trial judge erred in interpreting the law.  The respondent side will argue to uphold the decision of the trial judge. o The court may do one of four things:  Agree with the trial judge and dismiss the appeal.  Agree with the appellant and reverse the trial judgement.  Vary the trial judgement in part.  Declare that the trial judge erred in failing to consider certain facts and send the case back for a new trial in the lower court. o Cases are usually heard by a panel of 3 or 5 judges (depending on the importance of the case). o New trial: a case sent back by the appeal court for retrial by the lower court.  Final court of appeal (The House of Lords in England) o The ultimate court of appeal and the highest court in the land. o Usually consists of the Lord Chancellor and up to 9 Lords of Appeal in Ordinary, who are full-time salaried judges.  The Constitution divides legislative powers into: o Provincial jurisdiction  The administration of justice (i.e. the organization and operation of police forces and the system of courts). o Federal jurisdiction  Trade and commerce, banking, bankruptcy, and criminal law as well as exclusive rights to appoint and the obligation to pay all Supreme Court judges.  Supreme Court judges must be qualified and they hold office conditional on good behaviour and can only be removed by “joint address”. o Joint address means a vote is taken before both the House of Commons and the Senate. o This was designed to keep judges as unbiased and immune from local pressures as possible.  Three tiers in the Canadian court system: o The courts of first instance (trial divisions) o The intermediate provincial courts of appeal o The final court of appeal (the Supreme Court) Supreme Court of Canada Prinvincial Court of FederalCourt Appeal of Appeal Courts of First FederalCourt Tax Court Instance Trial Division  Two branches of trial courts: o Inferior trial courts  CInferiory provincial legislation for a particular purpose.  CoInclude:First InstnceSmall Claims Court o Deal with private disputes for smaller amounts of money. o Has a very simple and informal procedure to reduce the cost of taking action. o The busiest civil court.  Provincial division o Deals with very little private law, and instead hears criminal cases excluding the most serious offences (i.e. murder, treason, sexual assault and manslaughter). o May hold preliminary hearings to determine if there is enough evidence for a Superior Court trial. o No jury trials are held before Provincial Division Judges (must go to Superior Court judges). o An accused can ask for a jury trial (usually) when the prison sentence can be 5+ years. o A different division of this court hears family issues such as custody and support (not divorce). o Superior trial courts  Constitutionally created courts presided over by federally appointed judges.  Include:  Surrogate Court (Probate Court) o Supervises the estates of deceased persons.  Determines the validity of wills and the division of assets, and approves the accounts of executors and administrators. o 4 provinces have separate probate courts while the other 5 have merged them into the Superior Court system.  General Division or Superior Court o Has unlimited jurisdiction in civil (private) and criminal actions. o Judges are federally appointed and they listen to cases of divorce and the most serious criminal matters, as well as all private law disputes outside the jurisdiction of Small Claims Courts. o May also serve as a court of appeal for less serious criminal matters heard in Provincial Division. o Intermediate Appellate Court  Each province has a Court of Appeal (names vary), which hear appeals rising from all matters arising in the courts of first instance.  Federal Courts o Supreme Court of Canada  The final court of appeal in Canada.  Consists of 9 judges and hears appeals from both the provincial courts of appeal and the Federal Court of Canada  Has special jurisdiction under the Supreme Court Act to rule on the constitutionality of federal and provincial statutes when they are referred to the court by the federal Cabinet.  In private actions, the appellant must obtain special leave from the Supreme Court to appeal. o Courts of First Instance  Tax Court of Canada  Hears appeals of taxpayers against assessments by the CRA.  Decisions may be appealed by either the taxpayer or the department to the Federal Court of Appeal.  The Federal Court of Canada  Two divisions: o Trial Division o Appeal Division  Has exclusive jurisdiction in matters relating to ships and navigation, and many sorts of lawsuits against the government itself.  In the areas of copyright, patents, and trademarks, they have exclusive jurisdiction in some sections but other sections may overlap with provincial court jurisdictions. o Federal Court of Appeal  Hears appeals from the Federal Tax Court and the Federal Court of Canada Trial Division.  Appeals of their decisions go to the Supreme Court of Canada.  Rules of civil procedure: the provincial regulations that set out the steps in a private lawsuit, including forms, fees, and timelines. o Each province sets their own.  An adult citizen has the broadest ability to sue (non-Canadian citizens may also sue under conditions).  Peop
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