Intro to Law: Theories and Categories

What is Law?

• Law consists of rules created by the government
• These rules are enforced by courts or government agencies

Theories of Law

• Natural Law Theorists: Law is defined in moral terms
• According to this theory only "good" rules are considered law
• Legal Positivists: Law is defined by its source
• This theory states that a rule only becomes law if enacted by someone with authority
• Legal Realists: Law is defined in practical terms
• According to legal realism, a rule is only law if courts enforce it

Categories of Law

• Substantive Law: Determines individual rights and their limits in society
  • Examples include the right to travel, vote, and theft prohibitions
• Procedural Law: Determines how substantive law is enforced
  • Examples include arrest procedures, pre-trial, and court processes
• Public Law: Governs a country, affecting individual relationships with the government
  • Example: Rex v Sidhu
• Private Law: Governs personal, social, and business relationships
  • Example: Sidhu v Brar

Canada's Legal Systems

• Following the 1759 battle of Quebec, Canada adopted the Common Law legal system
• All provinces and territories except Quebec follow the Common Law system
• Quebec follows the French Civil Law legal system
• Common Law: Judges apply customs, traditions, and each other's decisions
  • Stare Decisis: Judges must follow precedent set by other judges
    • Supreme Court precedent applies to all Canadian courts
    • Provincial Appeal Court precedent applies to lower courts within that province, but not to other provinces
    • Judges often consider precedent from other provinces
    • Distinguishing the Facts: Judges determine if binding precedent exists by comparing case facts to proposed precedent to identify material differences
  • Court of Equity: Administers equity based on its forms and principles
    • It was created in response to the inability of common law courts to reach fair verdicts in some cases
    • Formerly separate, it is now combined with common law as a supplement
    • Merged in 1873, but bodies of law remain distinct
  • Statutes: Laws passed by parliament
    • Parliamentary Supremacy: Statutes prevail where case law and statutes conflict
• Civil Law: A legal system that uses a central code
  • The central code is a set of rules stated as broad principles of law
  • Judges apply these principles to cases
  • Founded by Roman Emperor Justinian in the 6th century, when Roman law was codified for the Roman Empire
  • Revised by Napoleon in the 19th century to create the Napoleonic Code

The Constitution of Canada

• British North America Act of 1867 (BNA Act), now called the Constitution Act, served three primary purposes
  • Creation of the 'dominion' of Canada
  • Divided power among the executive, judicial, and legislative branches
    • Executive: Administers and implements law
    • Judicial: Courts interpreting legislation and making case law
    • Legislative: Parliament which creates legislation or statute law
  • Determined the structures and powers of provincial and federal governments
• Canadian Constitution: Acts as the government's "rulebook"
  • Three main elements:
    • Statutes
    • Case Law on constitutional issues, which clarifies the division of powers between provinces and the federal government
    • Conventions: Unwritten rules for government operation
• Issues Faced within the Constitution:
  • Paramountcy: Overlapping powers between federal and provincial governments
    • Laws of both governments should be followed where possible
    • Federal government takes supremacy if following both is impossible
• Exercising Legislative Power: Bills must go through a specific process to become law
  1. First Reading: Bill is introduced, no debate held
  2. Second Reading: Bill is re-read, debated and sent to the 'Committee of Whole' for review and amendments
  3. Third Reading: Bill is read again, debated, and voted on
     • If passed, it is sent for Royal Assent
     • Steps 1-3 are repeated in the senate for federal bills

Protection of Rights and Freedoms

• Canadian Bill of Rights (1960): First attempt to limit government violation of human rights
  • It set rules to protect basic Canadian rights
  • Issues with this bill: It was legislation, not part of the constitution
  • The federal government could pass new legislation that violates the bill
• Charter of Rights and Freedoms (1982): Entrenched the Canadian Bill of Rights in the Constitution
  • As such it became supreme law
  • Limitations:
    • Reasonable Limits: Reasonable limits can be placed on rights and freedoms with demonstrable justification in a free and democratic society
      • Example: Freedom of expression is constitutionally guaranteed, but limits exist for libel, slander and child-pornography
      • The Oakes Test (R. v. Oakes) helps establish what a reasonable limit is
      • Legislation must relate to a pressing and substantial concern in a free and democratic society
      • Proportionality Test:
        • Measures must be carefully designed and achieve their objectives
        • Measures must be rationally connected to objectives and impair the right as minimally as possible
        • The measures and objectives must be proportional
• Notwithstanding Clause: Provincial and federal governments can override rights in sections 2 and 7-15 of the Charter
  • This can be done by stating explicitly that new legislation operates "notwithstanding" the charter
  • This applies to fundamental freedoms, legal rights, and equity rights
• Restriction of Charter: Only applies to governments and government agencies
  • No application in personal or business disputes
• Charter Provisions:
  • Fundamental Freedoms: Section 2 of the charter includes freedom of conscience and religion; belief, opinion, expression; assembly and association
  • Democratic Rights: Sections 3, 4, and 5 cover democratic rights including voting and running for election
    • Elections must be held every 5 years (Section 4)
  • Mobility Rights: Section 6 allows Canadians to travel, live anywhere in Canada, and enter/exit the country
  • Legal Rights: Section 7 guarantees the right to life, liberty, and freedom, and protection against rights deprivation except in accordance with the principles of justice
    • Sections 8 and 9 prohibit unreasonable search and seizure and arbitrary imprisonment
  • Equality Rights: Section 15 prohibits discrimination based on age, race, gender, or 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): Using negotiation, mediation, and arbitration to resolve disputes instead of court processes, examples include:
  • Negotiation: Disputing parties decide for themselves
  • Mediation: A neutral third party assists disputing parties
  • Arbitration: A neutral third party makes a binding decision
• Advantages of ADR vs Litigation:
  1. Retention of control by most affected people
  2. Less taxing resolution method than use of courts
  3. Avoids delays from lengthy pre-trial processes and scheduling of courts
  4. Avoids distraction of key employees because Court battles are distracting
  5. Quicker resolution than courts
  6. Keeps matters private, avoiding negative publicity
• Disadvantages of ADR:
  1. Judicial fairness and impartiality are not always present
  2. Mediators can't ensure all relevant information is presented
  3. Court levels the playing field to avoid inequalities ADR cannot
  4. No effective enforcement tools like in the courts
  5. Decisions cannot be appealed
  6. Decisions are not made public, hence does not discourage people from repeating similar actions

The Courts

• Publicity of Courts:
  • Public Hearings: Canadian court hearings are generally open to the public
  • Theory: justice must be done and be seen to be done
  • In-Camera Hearings: Kept private if prejudicial to national security
  • Cases Involving Sexual Assault or Children: Hearings are public, but victims' names or faces cannot be published due to publication ban
• Criminal vs Civil Disputes:
  • Civil: Judges decide based on the Balance of Probabilities
    • Balance of Probabilities: Courts believe there is a greater than 50% likelihood that the events took place as claimed
  • Criminal: Judges must be convinced Beyond a Reasonable Doubt
    • Prosecution must provide sufficient evidence that the accused committed the crime beyond a reasonable doubt
    • The accused must be found not guilty if there is any reasonable doubt
  • Quasi-Criminal Matters (regulatory offenses): Regulatory offenses in environmental, fishing, employment, and provincial jurisdiction
    • Do not classify as criminal matters, but are punishable by fines or imprisonment
• Trial Courts:
  • 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: Jury makes findings of fact, and the judge makes findings of law
    • Findings of Fact: Details of an event
    • Findings of Law: Rules or laws applied to a situation
  • Judge Only: Judge makes both findings of fact and findings of law
• Court of Appeals:
  • Appeals are made if there is an error in findings of law
  • Appeals requests based on findings of fact alone are not approved
    • Assumes original judge competent in findings of fact
  • No new trial is held, appeals judges read a transcript of the previous trial and address specific objections to the decision
• Appeals Judges:
  • Appointed by the federal government from a provincial list
  • Have tenure until retirement
    • They Cannot be fired unless for serious misconduct to prevent firing for unpopular or unfavorable decisions
  • The Supreme Court of Canada has 9 judges
    • A quorum is 5 judges, but 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
  • Settlement offers typically occur between discovery and pre-trial
• Limitation Periods: Legal action must be taken within a period of time
  • Removes ongoing uncertainty and ensures fairness when memories fade
• Jurisdiction: Four factors allow a court to assume jurisdiction over a dispute:
  • Defendant is a resident of the province
  • 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 in the trial
  • Examination for Discovery: Parties and lawyers answer detailed questions relevant to the trial under oath before a court reporter
    • Everything is recorded and may be used later at trial
• The Trial:
  • Plaintiff has Burden of Proof and presents their case and witnesses first
  • Lawyers cannot ask leading questions when examining a witness, except during cross-examination
• Remedies:
  • Damages: Monetary compensation to a victim
    • General Damages: Compensation for future monetary losses and incalculable losses like pain and suffering
    • Special Damages: Compensation to cover actual expenses and calculable pretrial losses
    • Punitive Damages: Compensation exceeding actual losses, intended to punish the wrongdoer also is known as exemplary damages
  • Accounting: A court orders profits from the defendant's wrongdoing to be paid to victim
  • Injunction: A court orders a stop to offensive conduct or to remedy offensive conduct
  • Specific Performance: In contract disputes, the breaching party must honor the terms of their agreement
  • Declaration: An official court statement on the law applicable to a case
• Class Action: Different persons combine their lawsuits into one against a common defendant due to sufficiently similar facts

Regulatory Bodies

• Administrative Tribunals: Specialized dispute adjudication forums
  • They are created by statute, with semi-judicial powers to resolve disputes and enforce legislation
• Procedural Fairness in Tribunals: 3 questions to determine rights before a tribunal:
  1. Where did the tribunal's authority come from?
  2. Was the decision-making process fair?
     • Rules of Natural Justice: Minimum standard of procedural fairness
     • Bias: Decision may be overturned if bias is present or felt
  3. Principles of Fundamental Justice: Protect the right to a fair hearing by an impartial decision maker acting in good faith to implement a valid law What recourse is there if there has been a failure in jurisdiction or procedure?

The Nature of Torts

• Crime vs Tort vs Breach of Contract
  • Tort: A social or civil wrong that gives one the right to sue and seek remedies
    • A tort is committed when someone causes injury to another, harming their person, property, or reputation
  • Crime: Harmful conduct that poses a threat to society
  • Breach of Contract: May not be inherently wrong, whereas a tort is inherently wrongful
• Intentional vs Unintentional Torts
  • Intentional: Courts may grant punitive damages in addition to general and special damages in cases of deliberate torts
  • Unintentional: Result from negligent behavior that falls below a minimal social standard
• Vicarious Liability: An employer's liability for employee injuries while carrying out employment duties

Types of Intentional Torts

• Intentional Torts: Only the act leading to harm needs to be intentional; the harm itself does not need to be intentional
  • Trespass to Person: Intentional physical interference with another person
    • Assault: Deliberate verbal or physical threat; an action that makes a person fear physical interference
    • Battery: Unwelcome physical contact
    • Defenses for Trespass to Person:
      • Consent: Informed and voluntary consent is an effective defense
        • Actions must be within the bounds of consent (example: Mike Tyson biting Evander Holyfield's ear exceeded boxing consent)
      • Self-Defense: Entitles people being attacked to use necessary force
        • Force used must be reasonable: Cannot respond to a shove by shooting the attacker
  • Trespass to Land: Going onto another's property without lawful right or owner's permission
    • Continuing Trespass: A permanent encroachment onto another's property
      • It can be a building or structure
    • Defenses:
      • Consent: Informed and voluntary
      • People Acting in an Official Capacity: Postal workers, meter readers, municipal inspectors, and police have a right to enter private property without trespassing
  • Trespass to Chattels, Conversion, and Detinue
    • Trespass to Chattel: Direct, intentional interference causing damage to goods of another
    • Conversion: Interference and deprivation of someone else's property
    • Detinue: Wrongful retention of someone else's goods
  • False Imprisonment: Intentionally restraining someone against their will without lawful authority
    • Key Requirements:
      • The person's liberty to go wherever they please must be restrained
      • Restraint must be unlawful
  • Malicious Prosecution: Criminal prosecution motivated by ill will towards the accused and lacking reasonable evidential grounds
  • Private Nuisance: An individual uses their property in a manner that causes damage to or interferes with another's enjoyment of property
    • Requirements to Prove Private Nuisance:
      1. Substantial harm must be proven
      2. The nuisance must be unreasonable in light of all the surrounding circumstances
  • Defamation: Publishing a false statement that is to a person's detriment
    • Requirements to Prove Defamation:
      1. The words must have been defamatory in the sense that they would lower one's reputation in the eyes of a reasonable person
      2. The words must in fact refer to the plaintiff
      3. The words must have been published to at least one other person
  • Types of Defamation:
    • Slander: Spoken defamatory statements
    • Libel: Written defamatory statements
  • Damages for Defamation: Not capped in defamation cases
  • Anonymity in Defamation: In cyber defamation, anonymity will not protect the defendant as web service providers can be ordered to share the defendant's information
  • Defenses for Defamation:
    • Truth: A true statement cannot be defamatory, with the burden of proof lies on the defendant's
    • Absolute Privilege: Exemption from liability for defamatory statements in settings such as legislatures and courts
    • Qualified Privilege: Exemption from liability for defamatory statements made pursuant to a duty, so long as the statement was made honestly, without malice, and only shared with those who have a right to know
    • Fair Comment: Available when a negative opinion is made about public figures or works put before the public
    • Responsible Communication on Matters of Public Interest: Excuses incorrect statements on matters of public interest where responsible journalism was applied

The ABCD of Negligence

• Negligence: Unintentional, careless act or omission causing injury to another's person or property
  • Four elements required to establish negligence; without any of the four elements presented below will dismiss a case:
    • A Duty of Care is Owed to the Plaintiff
    • Breach of that duty is observed
    • Causation exists
    • Damages were incurred
• A: A Duty to Care
  • Duty of Care: Obligation to avoid foreseeable harm
    • Courts determine if the defendant owed the plaintiff a duty of care using 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?
       • Donoghue v. Stevenson:
         • Mrs. Donoghue drank ginger beer with a decomposed snail, and became ill
         • She sued the beer manufacturer for negligence, but were argued that they owed her no duty of care in this situation.
• Misfeasance vs Nonfeasance
  • Misfeasance: Wrongful conduct
  • Nonfeasance: Failure to act
    • Nonfeasance activities usually do not warrant a duty of care
• B: Breach of the Standard of Care: Once duty of care is established, whether the defendant demonstrated sufficient care determines the second question
  • Reasonable Person Test: Used to determine if the conduct in question is below the standards of what a reasonable person would have done
    • Circumstances to Consider: When determining reasonable precautions one would of done, these have to be taken into consideration:
      • Risk of Injury: The care taken to prevent injury should be elevated if the risk of injury increases
      • Expenses: Preventing an injury could be highly effective but if very expensive it should not be considered a breach of the standard of care.
      • Expertise of Defendant: Expertise is taken into account
      • A doctor is held to a medical standard sense higher than an ordinary person with no special training
• C: Causation: Determines if the defendant is truly responsible for the losses suffered
  • “But For” Test: The plaintiff must prove that "but for" the defendant's conduct, no damage or loss would have resulted
    • In other words, “if the defendant had/hadn't done xyz, this would not have happened”
  • Remoteness Test: Determines if the damages suffered were too far removed from the negligent act
    • A scenario such as crashing into a pole and causing a business to close is too unrelated to assume responsibility.
• D: Damages: A negligence case needs some loss to a person or property - Negligence won't be found without damages or loss
  • Thin Skull Rule: A principle where victims are taken as found, even with unique physical or mental conditions
    • One with more fragile bone is one where your carelessness may be greater, and you are liable up to maximum amounts of damages for broken bones
  • Crumbling Skull Rule: Prevents liable for any pre-existing defects or condition which was inevitable, -A pianist has deteriorating arthritis and is being held for the injury of his hands which was already going to happen. the plaintiff is not liable Defenses for Negligence
  • Voluntary Assumption of Risk: Both parties must understand that the defendant assumed no responsibility took the due care of plaintiff, -Ex, if you fall with slippers and suffer injury, there is less to assume for the company responsible. -Contributory Negligence: results in a failure for the court to take reasonable care of ones own health for there injury, -Illegality: The courts reserve the right to not entertain negligence caused
• Legislation Impacting Duty of Care: insurance programs compensate others.

Occupiers' Liability: common law imposes duty on those who welcome and enjoy benefits of commerce for there property.

• Invitee: Come for property purposes.
• Licensee: Permission on premise.
• Trespasser: entering on premise without permission. Strict Liability: when doing something dangerous for others and one is liable for loss.