Introduction to Law

What is Law?

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

Theories of Law

• Natural Law Theorists define law in moral terms, considering only "good" rules as valid law
• Legal Positivists define law by its source, requiring enactment by someone with authority for a rule to become law
• Legal Realists define law in practical terms, viewing a rule as law only if courts enforce it

Categories of Law

• Substantive law determines an individual's rights and limits within a society
  • Examples include the right to travel, vote, and prohibitions against theft
• Procedural Law dictates how substantive law is enforced
  • Examples are arrest procedures and rules for pre-trial and court processes
• Public Law governs a country and its relationship with individuals
  • Example case is Rex v Sidhu
• Private Law regulates personal, social, and business relationships
  • Example case is Sidhu v Brar

Canada's Legal Systems

• Following the battle of Quebec in 1759, Canada adopted the Common Law legal system in all provinces and territories except Quebec
• Quebec follows the French Civil Law legal system
• Common Law applies customs and traditions alongside judges' decisions and precedents

Stare Decisis

• Stare Decisis, or "following precedent" is a rule requiring judges to adhere to precedents set by other judges
• Supreme Court has precedent that applies to all Canadian courts
• Provincial Appeal Courts precedent applies to lower courts within that province, is not binding in other provinces but is often considered
• Distinguishing the Facts is a process where judges determine whether binding precedent exists by considering the material differences between cases

Court of Equity

• The Court of Equity is administering equity based on the forms and principles of equity
• It addresses the inability of common law courts to reach fair verdicts
• A formerly separated court now combined with common law, but not replaced

Statutes & Civil Law

• Statutes are laws passed by parliament
• Parliamentary Supremacy dictates that statutes prevail over case law when conflict occurs
• Civil Law utilizes a code-based legal system with broad principles applied by judges
• The system was founded by Roman Emperor Justinian in the sixth century and codified for use throughout the Roman Empire.
• Napoleon later revised it in the nineteenth century, creating the Napoleonic Code

Constitution of Canada

• The British North America Act of 1867 (BNA Act), now the Constitution Act, served three primary purposes
• It created the Dominion of Canada
• It divided power among the executive, judicial, and legislative branches
• Determined the powers of the provincial and federal governments
• The Executive branch administers and implements law
• The Judicial branch refers to the courts, which interpret legislation and create case law
• The Legislative branch consists of parliament, which creates statutes
• The Canadian Constitution acts as the government’s "rulebook" and is comprised of statutes, case law, and conventions
• Case Law includes clarification on the division of powers
• Conventions are unwritten rules on how the government operates

Issues Faced within the Constitution

• Paramountcy: Federal law takes precedence where federal and provincial laws overlap and cannot both be followed

Exercising Legislative Power

• Exercising legislative power involves a bill going through a specific process
• First Reading involves the bill's introduction without debate
• Second Reading involves reading the bill again followed by debate, before going to the 'Committee of Whole' for review and amendments
• Third Reading involves reading and debating the bill a final time before a vote, after which, if passed, it is sent for Royal Assent
• In federal bills, these steps are repeated before the senate sends it off for Royal Assent

Protection of Rights and Freedoms

• The Canadian Bill of Rights (1960) limited the government's ability to violate human rights and protected basic Canadian rights
• Problematic because it was merely legislation and was not entrenched in the constitution
• The Charter of Rights and Freedoms (1982) was entrenched in the Constitution
• Limitations are Reasonable, and demonstrably justified in a free and democratic society
• The charter guarantees freedom of expression but limits libel, slander and child pornography
• The Oakes Test determines what is a reasonable limit

Proportionality Test

1. Measures must be carefully designed to achieve objectives
2. Must be rationally connected to objectives and impair the right as minimally as possible
3. The measures and the object must be proportional

• The Notwithstanding Clause lets provincial and federal governments override certain Charter rights by stating that new legislation operates "notwithstanding" the charter
• The clause applies to fundamental freedoms, legal rights, and equity rights
• The Charter only applies to governments, not personal or business disputes
• Section 2 is for Fundamental Freedoms-freedom of conscience, religion, belief, expression, assembly and association
• Democratic Rights in sections 3, 4, and 5 includes the right to vote as well as Section 4 stating an election must be held every 5 years
• Mobility Rights in section 6 applies to canadians travelling and living anywhere within Canada, and entering and exiting the country at will
• Legal Rights in section 7 grants Right to life, liberty, and freedom, and cannot be taken away except in the principles of justice.
• Sections 8 and 9 prohibit unreasonable search, seizure and arbitrary imprisonment.
• Equality Rights are in section 15 which prohibits discrimination based on age, race, gender, or religion
• Language Rights sections 16-22 protect official languages and minorities

Alternatives to Court Action

• Alternative Dispute Resolution uses negotiation, mediation, and arbitration to resolve disputes instead of court
• Negotiation is decision making by the disputing parties
• Mediation uses a neutral third party to help reach a solution
• Arbitration utilizes a neutral third party that makes a decision
• The matter is controlled by the people most affected
• The method is less taxing on resources, and avoids pre-trial and court scheduling
• There's no distraction of key employees, or negative publicity

Disadvantages of ADR

• Judicial fairness and impartiality are not always present
• Mediators can't ensure all information is presented
• ADR lacks the playing field that avoids inequalities, and enforcement tools
• Decisions cannot be appealed, nor made public which does not discourage repeat actions

Publicity of Courts

• Public Hearings occur in Canadian court which are generally open to the public
• In-Camera Hearings: kept Private When a case may be prejudicial to the security of our nation
• Cases Involving Sexual Assault or Children have hearings kept public and publication bans prohibiting publishing of victims names and faces

Criminal vs Civil Disputes

• Civil disputes judges decide matter of Balance of Probabilities to assess how likely events are to have taken place
• Criminal disputes prosecutors must proof Beyond a Reasonable Doubt that the accused committed a crime if there is any reasonable doubt, finding them not guilty
• Quasi-Criminal Matters are regulatory offenses in areas like environmental, fishing, and employment

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

Role of Judge and Jury

• Judge and Jury: The jury are fact finders and the judge makes findings of law
• Judge Only: a judge is present to handle both fact and law findings

Court of Appeals

• If there is an error in findings of law, a case may be appealed. An appeal request would not be approved based on fact
• No new trial take place, only a transcript of the old trial takes place
• Appeals Judges come from a list provided by the provinces. and cannot be fired unless for serious misconduct

Process of Civil Litigation

1. Plaintiff Submits a Statement of Claim
2. Defendant Submits a Statement of Defence
3. Discovery phase
4. Mandatory Mediation
5. Pre-Trial Conference
6. Trial
7. Decision

• Settlements typically take place in Discovery phase
• The Limitation Periods involve legal action required to maintain fairness
• Jurisdiction involves four factors: where the defendant is a resident, the conduct of business, the Tort, and if a contract with disputes was in place

The Discovery Process

• Discovery of Documents involves legal rights to possess documents used as evidence
• Examination for Discovery is a phase where both parties and layers appear before court reporter and take an oath and relevant trial questions and everything is recorded

The Trial

• Burden of Proof rests with the plaintiff, thus the plaintiff’s case and witnesses are presented first
• When examining a witness, lawyers must not ask leading questions

Remedies:

• Damages are monetary compensations
• General for Future losses
• Special for Expenses
• Punitive to Punish Wrongdoer
• Accounting involves a court order that any profits derived from the defendant’s wrongdoing be paid over to the victim
• Injunctions are orders to stop offenses
• Specific Performance orders a breaching party to go live up to the terms of their agreement
• Declarations are official court statements
• Class Action involves many parties suing for similar actions

Regulatory Bodies

• Administrative Tribunals specialize to adjudicate forums created by status with semi-judicial powers, to resolve disputes
• Procedural Fairness in Tribunals involves addressing where tribunal gets authority
• A decision requires to be fair with rules of natural justice regarding bias standards and fundamental justice and impartial decision making

Nature of Torts

• A civil wrong that gives right to person seek remedy
• A tort involves causing injury to person property reputation

Intentional and Unintentional Torts

• Intentional and Deliberate awards general and special damage awards
• Unintentional Torts are a result of negligent behavior
• Vicarious Liability Employers Liability with Employment Duties

Types of Intentional Torts

• To be Intentional does not need harms to be the case
• Trespass to Person is physical Interference
• Assault Actions make a person fear physical interference
• Battery involve unwelcome physical contact

Defenses for Intenional Torts

• Consent has to be informed and voluntary such as boxing and actions within such bounds

More Defenses

• Self Defense is where the entity claims their defence necessary with reasonable forces
• Trespass to land is going to a property without permission or right- Continuing trespass is a permanent action on the other's property
• Consenting or acting in the official capacity gives right without tresspassing
• Direct intentional Interference causes goods damages

Additional Points

• Conversion is interference and deprivation of someone else claims
• Detinue wrongful retention
• If their intentionally restraining while not lawfully authorized False Imprisonment takes place
• When restricted the restraint must be unlawful
• Malicious Prosecution Is the action of Criminal prosecution with ill will and unreasonable grounds
• Requirements to Pove: substantial harm must be proven, is nuissance the same
• Defamation is published false statement -Words need to be defamatory and reference plaintiff -Share, and published -Can be Slander, Libel

Defamation Defenses

• If statement in question is true can not be defamatory
• With Good truth Also has to be with good intent

ABCD OF NEGLIGENCE

• Negligence is an unintentional careless act omission

The required elements of negligence are

1. Duty of Care is owed
2. A breach can be found in observable action
3. Causation is the reasoning behind damages
4. Damages are those inferred

Reasonable Foreseeability:

1. Inquiring Injury
2. Proximity and Should've known caused risk a . i. Found a dead snail in Donoghues soda

Standard of care

To determine actions and circumstances, you must establish a point of reasoning or testing point where standard of care and its risk were not met

1. What are the risk factors? 2: Establish safe practice (extremely costs)
2. Test expertise compared to standard

Negligence Considerations

• Test to see If conduct to determine defendant truly for losses
• But for Test. If Not would have happened

What Happens After Determination

• Remoteness test, determining If suffering and impact was too far removed

If loss is in action, must check all 4 cases to assess or the negligence case gets dropped

• Thin skull rule: is the action the damage that existed
• Crumbling skull rule? Are inevitable
• Voluntary risk, knowingly that actions could damage you
• Are plaintiff actions contribution?
• Illegally, ex Turpi (immorality)
• Legislation Impacting are you an insurance to the party that did no fault
• Occupiers: visitors? Are you under welfare

Visitors 1Business 2: license 3: tresspaser

Strict = liability