Law Section – Chapter 1 – Canadian Legal

System

History:
 Provinces and territories in Canada are considered “common-law”
 Legal system is based upon the English common-law system
 For certain cases, they already had solutions to resolve the conflicts that arose.
o The system based on this system is called the “common-law”
 As time progressed, this system was becoming inadequate, because of variations
in the court cases.
 When a situation arose where the common-law system could not solve a case,
special appeals were made to the English monarch
 If the monarch decides that the case requires the monarch’s input to resolve the
case, a solution more “equitable” is provided, rather than the common-law
approach.
 Eventually, the English “courts of equity” were developed as a separate court
system, as opposed to the common-law system
 Definition of equity: Spirit of fairness, justness and right dealing… grounded in
the precepts of conscience.
 The two systems were than combined, and an improved law system was
developed to provide remedies based on both the common-law precedent solution,
and on equitable principles. This combined system is now known to be the
common-law system known today in Canadian law

The theory of the precedent:

 When deciding the outcome of a case, the courts apply legal principles that were
established in previous court decisions which involved similar circumstances that
arose. This is denoted as the theory of the precedent
 The courts also dispense “equitable relief”, which introduces flexibility in the
decision-making process
 It is possible to come to a decision that is away from the case precedents, in order
to reflect society’s values at the present time.
 These departures are very slow to evolve, and the reason behind this is because of
how the legal system is structured.

The common law:

 Major source of law is “judge-made law” – Court decisions that establish legal
principles

Legislation:
 In addition, there is legislation: Statutes (laws enacted by a legislative body) that
are established by elected legislatures
  Statutes may be questioned in court cases. If this is the case, it’s up to the court to
decide if a statute applies for a particular case
 The wording of the statute may also be interpreted at the time of the case
 When statutes are created, regulations under these statutes are also law bidding.
 It is important that engineers comply to both provincial and federal statutes, and is
aware of amendments to previous statutes and new ones

Federal and Provincial Powers:

 Under the Constitution act, the federal government and the provinces have the
authority to create these statutes (enact legistlation)
 What the federal government decides for statutes and what the provincial
governments decide are described in Sections 91 and 92 of the Constitution act.
 Section 91 is for federal governments, and 92 is for provincial governments
 Section 92 grants the provinces certain exclusive powers.
 Section 91 decides on specific matters that fall within the Parliament of Canada,
and makes laws for the Peace, Order and good Government of Canada.
 This applies only to those things that are not in Section 92
 Section 92 is more for matters of a provincial nature, like property rights
 There may be times where it is debatable as to which authority a statute’s
jurisdiction lies in
 If someone decides to challenge this, the party has to convince a court that the
statute is beyond the authority of the government that was responsible for
enacting it.
 Before the Canadian Charter of Rights and Freedoms, courts would say that the
jurisdiction of certain statutes for the government that enacted it was beyond its
authority.
 However, the courts could not void a law just because it offended civil liberties
 Canadian courts adaopted the British “doctrine of Parliamentary Supremacy”
 This meant that the courts could not question any statute, even if it was one that
offended civil liberties.
 Theoretically, all of the rights of the citizens of Canada could be removed by the
government if it desired
 The Charter of Rights and Freedoms was then enacted to provide everyone with
certain rights and with certain fundamental freedoms
 Section 52(1) of the Charter states that courts now have the power to rule that
statues can be invalid if they violate the rights guarenteed by the Charter
 Section 33 indicates that it can expressly override certain provisions of the
Charter, but is used sparingly.

Federal and Provincial Court Systems

 The most persuasive precident is usually the recent decision made by the most
highest level of court
 Hierarchy of Decision Making:
o Supreme Court of Canada (Nation-wide)
o Court of Appeal (Provincial)
  Precidents from other common-law jurisdictions (like other provinces) can be
followed as well
 The court system within each of the provinces are generally the same, since they
follow the British court system
 Ontario Court of Justice can be split up into two divisions:
o General Division
o Provincial Division
 General Division deals with large claims and federal criminal matters. Small
Claims court falls into this as well
 Provincial Division deals with domestic matters (except divorce), and criminal
matters involving inside the province
 Province is divided into 8 regions, each with a regional senior judge for each of
the General and Provincial divisions. The Ontario Court of Appeal is the final
Court of Appeal for the province
 Federal courts, like the Federal Court of Canada, are concerned with federal
matters like patents, trademarks and copyrights
 The Supreme Court of Canada is the final appeal court for Canada

Public and Private Law:

 Public law deals with the rights and obligations of the government, and
individuals and private organizations
 Criminal law and constitutional law are examples of Public law
 Private law deals with the rights and obligations of individuals or private
organizations
 Examples of these involve contract law and tort law

Basic Terminology:
 Litigation – A lawsuit
 Plantiff – The party that is suing, or making the claim in the lawsuit. In criminal
cases, the plantiff is usually the Crown
 Defendant – The party that is defending against the claims in the lawsuit. The
defendant is also known as the accused in criminal matters
 Appellant – Party that is appealing the court decision made by a lower Court
 Respondent – Party seeking to maintain the court decision made by this lower
Court
 Privity of Contract – Describes the legal relationship between the parties that are
in a contract
 Creditor – A party whom an amount is owing
 Debtor – A party that owes an amount to the creditor
 Indemnification – A promise to directly compensate or reimburse another partify
for a loss or cost that took place. This is similar to a guarentee. The difference
here is that indemnity rights can be exercised directly.