Intro to Law and Legal Systems

What is Law?

• Law consists of government-created rules enforced by courts or government agencies.

Theories of Law

• Natural Law Theorists: Law is defined in moral terms; only "good" rules qualify.
• Legal Positivists: Law is defined by its source; a rule becomes law if enacted by someone with authority.
• Legal Realists: Law is defined in practical terms; a rule is law only if courts enforce it.

Categories of Law

• Substantive Law: Determines individual rights and the limits on conduct, examples include the right to travel, vote, and prohibitions against theft.
• Procedural Law: Determines how substantive law is enforced, for instance, arrest procedures and pre-trial/court processes.
• Public Law: Governs a country and affects individuals' relationship with the government, like Rex v Sidhu.
• Private Law: Governs personal, social, and business relationships, like Sidhu v Brar.

Canada's Legal Systems

• Following the battle of Quebec in 1759, Canada adopted the Common Law, except for Quebec, which follows the French Civil Law.

Common Law

• A legal system where judges apply customs, traditions, and each other's decisions.
  • Stare Decisis: Requires judges to follow precedents set by other judges.
    • Supreme Court precedent applies to all Canadian courts.
    • Provincial Appeal Court precedent applies to lower courts in that province but is often considered by judges in other provinces
    • Distinguishing the Facts: Determines binding precedent by comparing case facts to proposed precedent and identifying any material difference.
  • Court of Equity: Administers equity based on equitable principles and forms.
    • It addresses the inability of common law courts to reach fair verdicts.
    • Formerly separate, now combined with common law as a supplement.
    • Merged in 1873, but distinct bodies of law remain.
  • Statutes: Laws passed by parliament, taking precedence over case law due to Parliamentary Supremacy.
  • Civil Law: A legal system built on a central code of broad principles applied by judges.
    • Founded by Roman Emperor Justinian in the sixth century, codified for the Roman Empire, revised by Napoleon in the nineteenth century.

The Constitution of Canada

• British North America Act of 1867 (BNA Act/Constitution Act):
  • Created the 'dominion' of Canada.
  • Divided power among Executive, Judicial, and Legislative branches.
    • Executive: Administers and implements laws
    • Judicial: Interprets legislation and makes case law
    • Legislative: Parliament, which creates legislation.
  • Determined the powers and structures of provincial and federal governments.
• Canadian Constitution: "Rulebook" for the government, comprising
  • Statutes
  • Case Law on constitutional issues
  • Conventions: unwritten rules for government operation.
  • Paramountcy: Federal law takes precedence when federal and provincial powers overlap, and following both laws is impossible.

Exercising Legislative Power

• For a bill to become law, it must go through a specific process:
  1. First Reading: Bill introduced, no debate.
  2. Second Reading: Bill re-read and debated before review and amendments by the 'Committee of Whole.’
  3. Third Reading: Bill is read and debated again before a vote.
     • If passed, it goes for Royal Assent.
     • In federal bills, steps 1-3 repeated in the Senate before Royal Assent.

Protection of Rights and Freedoms

• Canadian Bill of Rights (1960):
  • This was the first attempt to limit government violation of human rights and protect basic Canadian rights.
  • This legislation was not part of the constitution so the government could violate this at any time
• Charter of Rights and Freedoms (1982):
  • It was entrenched into the Constitution, making it the supreme law.
    • Reasonable Limits: Rights and freedoms may have "reasonable limits" if demonstrably justified.
      • For example, freedom of expression has limits in cases like libel and child pornography
    • The Oakes Test (R. v. Oakes) establishes reasonable limits.
      • Legislation must address a pressing and substantial concern in a free and democratic society.
      • Proportionality Test requirements:
        • Measures must be carefully designed to achieve objectives.
        • Must be rationally connected to objectives and impair the right minimally.
        • The measures and object must be proportional.
    • Notwithstanding Clause: Provincial and federal governments may override rights listed in sections 2 and 7-15 of the Charter by stating that the new legislation operates "notwithstanding" (regardless of) the charter.
      • Applies to fundamental freedoms, legal rights, and equity rights.
    • Restriction of Charter: Applies only to governments and agencies, not personal or business disputes.
    • Charter Provisions:
      • Fundamental Freedoms: Section 2 ensures freedom of conscience, religion, belief, opinion, expression, assembly, and association.
      • Democratic Rights: Sections 3-5 include the right to vote and run in elections; Section 4 requires elections every five years.
      • Mobility Rights: Section 6 allows Canadians to travel, live anywhere in Canada, and enter/exit the country.
      • Legal Rights: Section 7 grants the right to life, liberty, and freedom unless taken away by the principles of justice; Sections 8-9 prohibit unreasonable search/seizure and arbitrary imprisonment.
      • Equality Rights: Section 15 prohibits discrimination based on age, race, gender, and religion.
      • Language Rights: Sections 16-22 protect English and French as official languages and the rights of minorities to use them.

Alternatives to Court Action

• Alternative Dispute Resolution (ADR): Resolves disputes via negotiation, mediation, or arbitration instead of court.
  • Negotiation: Parties decide for themselves.
  • Mediation: A neutral third party helps parties reach a solution.
  • Arbitration: A neutral third party makes a binding decision.

Advantages of ADR vs Litigation

1. Affected parties retain control.
2. Less taxing than court; courts rarely compensate for time/resources.
3. Avoids lengthy pre-trial processes and scheduling delays.
4. Avoids distraction of key employees.
5. ADR offers quicker resolution.
6. Keeps matters private.

Disadvantages of ADR

1. Judicial fairness and impartiality not always present.
2. Mediator can't ensure all relevant information is presented.
3. Can't level the playing field like courts.
4. Lacks effective enforcement tools like courts.
5. Decisions cannot be appealed.
6. Decisions remain private, not discouraging similar actions by others.

Publicity of Courts

• Public Hearings: Canadian court hearings are generally open to the public to ensure justice is done and seen.
• In-Camera Hearings: Hearings are kept private when a case may be prejudicial to national security.
• Cases Involving Sexual Assault or Children: Hearings are kept public but a publication ban prohibits the publishing of victim's names or faces.

Criminal vs. Civil Disputes

• Civil: Judges decide based on the Balance of Probabilities where the court believes there is a greater than 50% likelihood that the events took place as claimed.
• Criminal: Judges must be convinced Beyond a Reasonable Doubt where the prosecution provides sufficient evidence that the accused committed the crime; regardless of likelihood, any reasonable doubt requires a not guilty verdict
• Quasi-Criminal Matters (regulatory offenses): Regulatory offenses in areas like environmental issues, fishing, and employment are punishable by fines or imprisonment but do not qualify as criminal matters.

Trial Courts

• Proceed through the following order:
  • Provincial Courts → Provincial Superior Courts → Provincial Court of Appeals → Supreme Court of Canada.
  • Federal Court → Federal Court of Appeals → Supreme Court of Canada.

Judge/Jury

• Judge and Jury: The jury decides findings of fact, and the judge decides findings of law
  • Findings of Fact: Details of an event
  • Findings of Law: Rules/laws applied to a situation
• Judge Only: A judge makes both findings of fact and law.
• Court of Appeals:
  • When can you Appeal: Only cases with errors in findings of law, not findings of fact, because it's assumed that the original judge is competent in findings of fact.
  • Appeals judges read a transcript of the previous trial and address the specific objections to the decision without conducting a new trial.
• Appeals Judges:
  • Appointed by the federal government from a list provided by provinces.
  • Have tenure until retirement and cannot be fired unless for serious misconduct.
  • There are nine judges who serve the Supreme Court of Canada, where a quorum consists of 5 judges while appeals are typically heard by 7 or 9.

The Process of Civil Litigation

• Plaintiff Submits a Statement of Claim, Defendant Submits a Statement of Defence → Discovery →Mandatory Mediation →Pre-Trial Conference →Trial →Decision.
• A settlement is usually offered between discovery and pre-trial.

Limitation Periods

• The period of time where legal action must be taken in order to remove uncertainty and ensure fairness.

Jurisdiction

Four factors allow a court to assume jurisdiction over a dispute:

• The defendant is a resident of the province.
• The defendant carries on business in that province.
• The tort was committed in the province.
• A contract connected with the dispute was made in the province.

The Discovery Process

• Discovery of Documents: Each party can possess documents from the other party that may be used as evidence at trial.
• Examination for Discovery: Parties and lawyers answer detailed, relevant questions under oath before a court reporter, and this record may be used later at trial.

The Trial

• The Plaintiff has the Burden of Proof so their witnesses and case are presented first.
• Lawyers cannot ask leading questions when examining a witness but this does not apply in cross examination.

Remedies

• Damages: Monetary compensation to a victim.
  • General Damages: Compensation for future monetary and incalculable losses, such as pain and suffering.
  • Special Damages: Compensation for actual expenses and calculable pre-trial losses.
  • Punitive Damages: Compensation beyond actual losses intended to punish the wrongdoer (exemplary damages)
• Accounting: A court order where any profits derived from defendant's wrongdoing are paid to the victim
• Injunction: A court order to stop or remedy offensive conduct.
• Specific Performance: In contract disputes, it is a court order for the breaching party to fulfill their agreement
• Declaration: An official court statement on applicable law in a case.
• Class Action: When persons combine similar lawsuits against a common defendant.

Regulatory Bodies

• Administrative Tribunals: These are specialized dispute adjudication forums created by statute and have semi-judicial powers to resolve disputes and enforce legislation.

Procedural Fairness in Tribunals

Three important questions to keep in mind when determining rights before a tribunal:

1. Where did the tribunal derive its authority?
2. Is the decision-making process fair?
   • a. Rules of Natural Justice: minimum standard of procedural fairness
   • b. Bias: If any bias is present or felt, the decision may be overturned
   • c. Principles of Fundamental Justice: Tradition and convention protect the right to a fair hearing by an impartial decision maker acting in good faith to implement a valid law
3. What recourse is there if failure in jurisdiction or procedure occurs?

The Nature of Torts

• Tort: A social or civil wrong that gives one the right to sue and to seek remedies where one person causes injury to another, harming his person, property, or reputation.
• Crime: It is harmful that is so serious that is poses a threat to society.
• Breach of Contract: It might now be inherently wrong though a tort is inherently wrongful conduct.

Intentional vs Unintentional Torts

• Intentional: In cases of intentional torts, courts can grant punitive damages on top of general and special damages
• Unintentional: Negligent behavior that falls below a minimal social standard for a reasonable individual.
• Vicarious Liability: The liability of an employer for injuries causes by an employee carrying out employment duties.

Types of Intentional Torts

• Intentional Torts: For a tort to be intentional, only the act leading to the harm should be intentional; it is not necessary that the harm itself was also intentional.
• Trespass to Person: Intentional physical interference with another person.
  • Assault: Deliberate verbal or physical threat/ an action that makes one fear physical interference
  • Battery: Unwelcome physical contact
  • Defenses of Trespass to Person:
    • Consent: Must be informed and voluntary in order to be an effective defense, with your actions taking place within the bounds of consent.
    • Self-Defense: The law entitles people who are being attacked to use the necessary force to defend themselves though the force used must be reasonable.
• Trespass to Land: Going onto another person's property without lawful right or the owner's permission.
  • Continuing Trespass: A permanent incursion onto another's property that can take the form of a building or structure that encroaches on the property.
    • Defenses:
      • Consent: Actions must be informed and voluntary
      • People Acting in an Official Capacity: Those such Postal workers, meter readers, municipal inspectors, and the police have a right to come on private property
• Trespass to Chattels, Conversion, and Detinue:
  • Trespass to Chattels: Direct, intentional interference causes damages to someone elses goods
  • Conversion: Interference and deprivation of someone else's property.
  • Detinue: Wrongful retention of someone elses goods.
• False Imprisonment: Intentionally restraining someone against their will without the lawful authority to do so.
  • Requirements:
    • The person's liberty to go wherever they please must be restrained
    • The restraint must be unlawful
• Malicious Prosecution: Criminal prosecution motivated by a ill will and lacking reasonable evidential grounds
• Private Nuisance: Use of property in a manner that causes damage to/interferes with another's enjoyment of their property.
  • Prove private nuisance requires proving both substantial harm must and that the nuisance must be unreasonable in light of all the surrounding circumstances.

Defamation

• A published false statement that is to a person's detriment where:
  • The words must be defamatory in the sense that they would lower one’s reputation in the eyes of a reasonable person.
  • The words must in fact refer to the plaintiff.
  • The words must have been published, in that they were shared with at least one other person that is not the plaintiff.

Types of Defamation

• Slander: Spoken defamatory statements.
• Libel: Written defamatory statements.
• Damages for Defamation: Damages in defamation cases are not capped
• Anonymity in Defamation: Web service providers can be ordered to share the defendant's information even in anonymous situations
• Defenses for Defamation:
  • Truth: Statements that are true cannot be considered defamatory and the defendant must prove this.
  • Absolute Privilege: Exemption from liability of defamatory statements made in certain settings such as legislatures and courts
  • Qualified Privilege: Exemption from liability for defamatory statements made under a duty as long as the statement was:
    • Made honestly, without malice, and only shared with those who have a right to know.
  • Fair Comment: A defense available when a negative opinion is made about public figures and works put before the public.
  • Responsible Communication on Matters of Public Interest: Excusable defense for inaccurate statements on public interest matters where responsible journalism was applied.

The ABCD of Negligence

• Negligence: An unintentional, careless act or omission that causes injury to another person or his property that requires these four elements:
  • A Duty of Care is Owed to the Plaintiff
  • Breach of that duty is observed
  • Causation exists
  • Damages was incurred
• A: A Duty to Care: An obligation to take steps to avoid foreseeable harm where courts must first determine whether the defendant owed the plaintiff a duty of care via the Reasonable Foreseeability Test.

Reasonable Foreseeability Test

1. Was the injury reasonably foreseeable?
2. Was the degree of ‘proximity’ between the plaintiff and defendant such that the defendant should have realized their actions pose a risk to the other
   • Case Example: Donoghue v. Stevenson, when Mrs. Donoghue drank a ginger beer with a decomposing snail, she had become violently ill and sued though they argued they owed her no duty of care.

Misfeasance vs Nonfeasance

• Misfeasance: Wrongful Conduct
• Nonfeasance: a failure to act though nonfeasance usually doesn't warrant a duty of care

Breach of Standard of Care

• The second question is whether the defendant demonstrated sufficient care via a Reasonable Person Test.
  • Circumstances To Consider are factors for consideration when determining what a reasonable person would have done.
    • Risk of Injury: If the risk is elevated, more care should have been taken to prevent an injury.
    • Expenses: Conduct doesn't apply if there is so exorbitant of a cost to making a course of action “safe”
    • Expertise of Defendant: The expertise of the defendant are also taken into account where someone of higher medical expertise is held to a higher standard than ordinary persons

Causation

• Determines that the defendant is truly responsible for the suffered losses via the “But For Test”.
  • Conduct means that “if the defendant had/hadn’t done xyz, this would not have happened”.
  • Remoteness Test: Is used to determine if the damages are too far removed from the negligent act
    • EXAMPLE: Drivers who crash into poles don’t realize a business may have a loss of power.

Damages

• For negligence, there must be a suffered loss to a person or property
  • Thin Skull Rule: Takes everyone as they are, even people with unique mental and physical conditions so even if accidents caused greater harm to those with brittle bones, they are liable to the full extent of damages.
  • Crumbling Skull Rule: A defendant cannot be held liable for inevitable losses.
    • For instance, the defendant can’t be held if a pianist who retires wasn’t due to damages from the accident, but arthritis the plaintiff already had.

Defenses for Negligence

• Voluntary Assumption of Risk: Both parties must understand if the defendant assumed no responsibility, and the plaintiff didn’t expect them too.
• Contributory Negligence: A failure of the plaintiff to exhibit reasonable care which contributes to the injury caused resulting in shared responsibility
• Illegality: (Ex Turpi Causa). The reserve of the court to not entertain a negligence cause that resulted in an illegal act or an immoral action at the time of injury
• Legislation Impacting Duty of Care:
  • No Fault Programs: Insurance compensating for injuries whether people are at fault or not.
  • Occupiers’ Liability: In common law, occupiers of property have a special observation to look out for visitors on their property
    • Invitee: A person coming onto property for business purposes.
    • Licensee: A person coming into a property with a reason other than business.
    • Trespasser: A person coming on a property regardless of the purpose and without permission

Strict Liability

• When doing something inherently dangerous or unusual, there is always liability of losses or damages regardless of how careful you are.