RSM225H1 Chapter Notes -2-Step Garage

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28 Jan 2013
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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”
Daniel R. Shear 2000 – 2011
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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
Daniel R. Shear 2000 – 2011
All rights reserved.
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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.
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