Intro to Law: Theories and Categories

• Law involves rules created by the government and enforced by courts or government agencies.

Theories of Law:

• Natural Law Theorists: Define law in moral terms, viewing only "good" rules as legitimate.
• Legal Positivists: Define law by its source, where a rule becomes law if enacted by someone with authority.
• Legal Realists: Define law in practical terms, considering a rule as law only if courts enforce it.

Categories of Law:

• Substantive Law: Determines individual rights and their limits in society (e.g., right to travel, vote, prohibitions against theft).
• Procedural Law: Determines how substantive law is enforced (e.g., arrest procedures, pre-trial and court processes).
• Public Law: Governs a country and affects the relationship between individuals and the government (e.g., Rex v Sidhu).
• Private Law: Governs personal, social, and business relationships (e.g., Sidhu v Brar).

Canada's Legal Systems:

• After 1759, Canada adopted the Common Law system in all provinces/territories except Quebec, which follows the French Civil Law system.
• Common Law: Judges apply customs/traditions and follow each other's decisions.
• Stare Decisis: Formal rule requiring judges to follow precedent set by other judges.
  • Supreme Court precedent applies to all courts in Canada.
  • Provincial Appeal Court precedent applies to all lower courts in that province, often considered by judges in other provinces.
• Distinguishing the Facts: Process where a judge determines if binding precedent exists by comparing case facts to proposed precedent.
• Court of Equity: Administers equity based on its forms/principles.
  • Created to address the inability of common law courts to reach fair verdicts in some cases.
  • Formerly separate but now combined with common law (supplement, not replacement).
  • Merged in 1873, but bodies of law remain distinct.
• Statutes: Laws passed by parliament.
  • Parliamentary Supremacy: Statutes prevail over case law when they conflict.
• Civil Law: A legal system based on a central code with broad principles applied by judges
  • Founded by Roman Emperor Justinian in the sixth century, codified for use throughout the Roman Empire, later revised by Napoleon to create the Napoleonic Code.

The Constitution of Canada:

• British North America Act of 1867 (BNA Act): Now the Constitution Act, served three primary purposes.
  • Created the 'dominion' of Canada.
  • Divided power among the executive, judicial, and legislative branches of government.
    • Executive: Administers and implements law.
    • Judicial: Courts interpret legislation and make case law.
    • Legislative: Consists of parliament, which creates statue law.
  • Determined the structures and powers of the provincial and federal governments.
• Canadian Constitution: Rulebook the government must follow, comprised of:
  • Statutes
  • Case Law on consitutional issues
  • Conventions: Unwritten rules on how governments operate.
• Paramountcy: Occurs when federal and provincial government powers overlap, federal law takes supremacy if both laws cannot be followed.
• Exercising Legislative Power: Requires a specific process
  • First Reading: The bill is introduced, and there is no debate at this point.
  • Second Reading: The bill is re-read and debated before going to 'Committee of Whole' for reviews and amendments.
  • Third Reading: The bill is read again, and has a final debate before a vote is held.
    • If passed, the bill is then set for Royal Assent
    • Steps 1-3 get repeated before the senate, for federal bills

Protection of Rights and Freedoms:

• Canadian Bill of Rights (1960): First attempt to limit government violation of human rights, setting rules to protect basic Canadian rights.
  • It was limited because it was just legislation not the constitution allowing the federal government to pass new laws against.
• Charter of Rights and Freedoms (1982): Entrenched in the Constitution, making it supreme law.
  • Limitations:
    • Reasonable Limits: Allows limits on the charter if they are demonstrably justified in a free and democratic society.
      • Example limitations exist in cases of libel, and child-pornography.
      • The Oakes Test (R. v. Oakes) is used to establish a 'reasonable limit'.
        • Legislation must relate to a pressing/substantial concern in a free/democratic society.
        • Proportionality Test requirements:
          • Measures must be designed to achieve objectives
          • Must be rationally connected to objectives and impair the right in a minimal way
          • The measures and the object must be proportional
  • Notwithstanding Clause: Allows provincial/federal governments to override rights in sections 2 and 7-15 of the Charter just by stating "notwithstanding" the charter.
  • Restriction of Charter: Applies only to governments and government agencies, not personal/business disputes.
  • Charter Provisions:
    • Fundamental Freedoms: Section 2 guarantees freedom of conscience/religion, belief/opinion/expression, assembly/association.
    • Democratic Rights: Sections 3, 4, and 5 set out the right to vote and run in elections. An election must be held every 5 years.
    • Mobility Rights: Section 6 states that Canadians can travel/live anywhere in Canada and enter/exit the country at will.
    • Legal Rights: Section 7 states the right to life, liberty, and freedom and the right to not have them taken away except in accordance with the principles of justice. Sections 8 and 9 prohibit unreasonable search/seizure and arbitrary imprisonment.
    • Equality Rights: Section 15 prohibits discrimination based on age, race, gender, or religion.
    • Language Rights: Sections 16-22 protect English/French as Canada's official languages and minority rights to use them.

Alternatives to Court Action:

• Alternative Dispute Resolution (ADR): Using negotiation, mediation, and arbitration instead of court processes.
  • Negotiation: Disputing parties make decisions for themselves.
  • Mediation: A neutral third party helps the parties reach a solution.
  • Arbitration: A neutral third party makes a binding decision.
• Advantages of ADR vs Litigation:
  • Retention of control over the matter by the people most affected
  • ADR is a cheaper method
  • Avoiding pre-trail length
• Publicity of Courts: In general, Canadian court hearings are open to the public but can be closed
  • In-Camera Hearings: when a case may be prejudicial to the security of our nation, the hearings are kept private
  • Cases Involving Sexual Assault or Children: these hearings are kept public but a publication ban prohibits publishing the victims names
• Civil: In civil law disputes, judges look at the:
  • Balance of Probabilities: the courts believe there is a greater than 50% likelihood that the events took place as claimed
• Criminal: In criminal law disputes, judges must be convinced
  • • Beyond a Reasonable Doubt:* the prosecution must provide the court with sufficient evidence that the accused committed the crime.
• Quasi-Criminal Matters (regulatory offenses): There are certain regulatory offenses in areas such as environmental, fishing, employment, as well as offenses under provincial.
• 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: when both a judge and jury are present in a case, the jury is said to be making findings of fact and the judge is said to be making findings of law
  • Findings of Fact: regarding details of an event
  • Findings of Law: the rules or laws that are applied to a situation
• Court of Appeals: When can you Appeal: if there is an error in findings of law, a case may be appealed.
  • A new trial is not held, appeals judges read a transcript of the previous trial and address the specific objections to the decision

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 offer typically occurs after discovery pre-trial.
• Limitation Periods: The period of time for legal action to take place.
• Jurisdiction: Four factors that allow a court to assume jurisdiction
  • 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: in this, each party has the right to possess any documents in the hands of the other party that may be used as evidence in the trial
  • Examination for Discovery: Parties and lawyers answer detailed questions under oath before a court reporter.
• The Trial:
  • Burden of Proof is with the plaintiff, and must present cases/witnesses first.
  • Remedy Types:
    • Damages: Monetary compensation to a victim.
      • General Damages: compensation for future losses.
      • Special Damages: compensation to cover actual expenses.
      • Punitive Damages: compensation intended to punish; known as exemplary damages.
  • Accounting: A court order for profits from the defendant's wrongdoing to be paid to the victim.
  • Injunction: A court order to stop the conduct
  • Specific Performance: A court order for a breaching party to fulfill contract terms.
  • Class Action: Combines lawsuits if the facts are sufficiently similar against the same defendant.

Regulatory Bodies:

• Administrative Tribunals: Dispute adjudication forums by statute, with semi-judicial powers to resolve disputes/enforce legislation.
• Procedural Fairness in Tribunals: Addresses three questions to determine your rights:
  • Why did the tribunal derive its authority from?
  • Was the decision making process fear?
    • Rules of Natural Justice: minimum standard of procedural fairness
    • Bias: If bias is present or felt, the decision can be overturned
    • Principles of Fundamental Justice: tradition and convention that protect the right to a fair hearing by an impartial decision maker acting with good fatih
  • What recourse is there if there has been a failure in jurisdiction or procedure?

The Nature of Torts:

• Tort: A civil wrong for which one can sue to seek remedies.
  • Torts occur when one person harms another's person, property, or reputation.
• Crime: Serious harmful conduct that threatens society.
• Breach of Contract: Might not be inherently wrong, while a tort is.
• Intentional vs Unintentional Torts:
  • Intentional: Courts may compel punitive damages with general/special damages for deliberate torts.
  • Unintentional: Negligent behavior below a reasonable social standard.
  • Vicarious Liability: Employer liability for employee injuries during employment duties.

Types of intentional Torts:

• Intentional Torts: Requires intentional act leading to harm, not necessarily intentional harm itself.
• Trespass to Person: Intentional physical interference with another person.
  • Assault: Deliberate verbal or physical threat that causes a fear of physical interference.
  • Battery: Unwelcome physical contact.
  • Defenses for Trespass to Person:
    • Consent: Knowing voluntary consent is an effective defense.
      • Actions must stay within the bounds of content.
    • Self-Defense: Use necessary force to defend when attacked.
      • The force used must be reasonable.
• Trespass to Land: Going onto another's property without permission.
  • Continuing Trespass: Permanent incursion, such as an encroaching building.
  • Defenses:
    • Consent: Informed and voluntary
    • People Acting in an Official Capacity: Postal workers, municipal inspectors, the police do not need perimission
• Trespass to Chattels, Conversion, and Detinue:
  • Trespass to Chattel: Causing damage to someone else's goods
  • Conversion: Taking what someone else owns or deprives them
  • Detinue: Wrongful retention of someone's goods
• False Imprisonment: Intentionally restraining someone against their will without legal authority.
  • Key Requirements:
    • Has to be someone's "liberty"
    • Has to be a restraint with the person
• Malicious Prosecution: Ill-willing criminal prosecution with no evidence.
• Private Nuisance: Using property in a way that damages or interferes with the enjoyment of another's property
  • One has to have substantial harm
  • Nuisance must be unreasonable
• Defamation: A published untrue statement against someone's good name
  • The words have to be defamatory in the eyes of the reasonable person

Types of Defamation

- Slander: spoken defamatory statements
- Libel: written defamatory statements
- Anonymity will not help if a subpoena happens
- Defenses of defamation:
   - The truth
   - Absolute/Qualified privilege
   - Opinion

The ABCD of Negligence:

• A: A Due of Care -Duty of Care: an obligation to take steps to avoid foreseeable harm. -Courts determine with the reasonable foreseeability is proven -Donoghue v. Stevenson B: Breach the Standard of Care: -Reasonable care test: use to determine if you are doing things reasonably. -Risk of injury? -Expenses? C: Causation -but for test: plantiff must prove it -Remotestness test D: Damages -Thin Skull Rule: we take our victims as we find them, even the mental ones -Defenses -Contributory -Assumption of risk -Illegality

The Contractual Relationship

• Contract: voluntary promise creating obligations can be enforced
• Contract vs Elements -Consensus: both parties agree -Considerations: some commitment to do something -Capacity -Intentions

Valid, Void, and Voidable Contracts:

• formal vs simple contract
• express vs implied contact
• Bilateral and Unilateral Contracts:
  • Unenforceable: something happened but courts will disregard
  • Illegal: unlalful and as a result is void