Introduction to the Legal System

Introduction to the Legal System

• Law consists of rules created by the government, and enforced by governmental agencies and courts.

Theories of Law

• Natural Law: Defines law in moral terms, where only "good" rules are considered valid laws.
• Legal Positivism: Defines law by its source; a rule becomes law if enacted by someone with authority.
• Legal Realism: Defines law in practical terms, where a rule is law only if courts enforce it.

Categories of Law

• Substantive Law: Determines individual rights and their limits in a society (e.g., right to travel, vote).
• Procedural Law: Determines how substantive law will be enforced (e.g., arrest procedures).
• Public Law: Governs how a country is governed, including laws affecting individuals' relationship with the government (e.g., Rex v Sidhu).
• Private Law: Rules governing personal, social, and business relationships (e.g., Sidhu v Brar).s

Canada's Legal Systems

• Except for Quebec, all Canadian provinces and territories adopted the Common Law system after 1759.
• Quebec uses the French Civil Law system.

Common Law

• A legal system where judges apply customs, traditions, and previous court decisions.
• Stare Decisis: Judges must follow precedents set by other judges.
  • Supreme Court precedent applies to all courts in Canada.
  • Provincial Appeal Court precedent applies to lower courts within that province, and is often considered by judges in other provinces.
  • Distinguishing the Facts: Judges determine whether a binding precedent exists by comparing case facts.
• Court of Equity: Administers equity based on principles to achieve fair verdicts.
  • It was created to address the Common Law court's inability to reach fair verdicts.
  • Formerly separate, it is now combined with common law.
  • Though merged in 1873, bodies of law remain distinct.
• Statutes: Laws passed by parliament.
  • Parliamentary Supremacy: Statutes prevail over case law when conflicts occur.
• Civil Law: A legal system based on a central code applied by judges.
  • Founded by Roman Emperor Justinian during the sixth century and revised by Napoleon in the nineteenth century 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: Interprets legislation and makes case law.
    • Legislative: Parliament creates legislation or statute law.
  • Determined the powers and structures of provincial and federal governments.
• Canadian Constitution: The "rulebook" the government must follow, comprised of three elements.
  • Statutes include BNA which is now called the Constitution Act, Case law on constitutional law and clarification, and the division of powers between the federal and provincial governments.
  • Conventions: Unwritten rules for government operation.
• Paramountcy: Federal laws take precedence if federal and provincial laws conflict and following both is impossible.
• Exercising Legislative Power: Bills must pass through a specific process to become law -First Reading: The bill is introduced and no debate is held.
  • Second Reading: The bill is re-read and debated. -Third Reading: The bill is read again and debated. -If passed, it is then sent for Royal Assent -Steps 1-3 will be repeated before the senate before being sent off for Royal Assent

Protection of Rights and Freedoms

• Canadian Bill of Rights (1960): The first attempt to limit the government's ability to violate human rights.
  • Passed in 1960, it set out rules protecting basic rights of Canadians however, it was just legislation and not part of the constitution.
  • New legislation that violates the Canadian bill of rights, may be passed at any time by the federal government.
• Charter of Rights and Freedoms (1982): The Canadian Bill of Rights was entrenched into the Constitution, and made it supreme law.
  • Limitations:
    • Reasonable Limits: Rights and freedoms can be limited if demonstrably justified in a free and democratic society.
      • The charter guarantees freedom of expression but includes the limits that exist in cases such as libel, slander, child-pornography, etc.
• The Oakes Test (R. v. Oakes): is used to 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 designed to achieve objectives, be rationally connected to objectives impair the right as minimally as possible, and the measures and the object must be proportional.
• Notwithstanding Clause: The provincial and federal government may override section 2, and 7-15 of the Charter by stating legislation operates "notwithstanding" the charter.

Charter Applications and Provisions

• The Charter applies to fundamental freedoms, legal rights, and equity rights.
• Restriction of Charter: The charter applies only to governments and agencies.
• Charter Provisions:
  • Fundamental Freedoms: includes freedom of conscience, religion, expression, assembly, and association.
  • Democratic Rights: includes the right to vote, run in elections, and hold elections every 5 years.
  • Mobility Rights: allows Canadians to travel and live anywhere within Canada, and to enter/exit the country.
  • Legal Rights: includes the right to life, liberty, and freedom, principles of justice, and protection from unreasonable search, seizure, and arbitrary imprisonment.
  • Equality Rights: protects against discrimination based on age, race, gender, or religion. -Language Rights: protects English and French as official languages and the rights of minorities to use them.

Alternatives to Court Action

• Alternative Dispute Resolution (ADR): Negotiation, mediation, and arbitration are used to resolve the disputes rather than court processes.
  • Negotiation: The disputing parties decide for themselves
  • Mediation: A neutral third party helps disputing parties reach an agreement.
  • Arbitration: A neutral third party makes a binding decision.
• Advantages of ADR vs Litigation:
  • Retention of control.
  • ADR provides a resolution method that is less taxing on needed time, money and resources.
  • It avoids delays from lengthy pre-trial process and the scheduling of courts.
  • The avoidance of distraction of key employees,
  • Quicker resolution
  • The matter can be kept private.
• Disadvantages of ADR:
  • Judicial fairness and impartiality may not always be present
  • The mediator cannot ensure that all relevant information is presented.
  • Courts level the playing field to avoid inequalities in ways that ADR cannot.
  • No effective tools for enforcement
  • Decisions cannot be appealed
  • Decisions are not made public

The Courts

• Publicity of Courts: -Public Hearings: Court hearings in Canada are generally open to the public unless prejudice to the security of the nation is involved. - Cases Involving Sexual Assault or Children: Hearings are kept public, with a ban on publishing victims' names or faces.
• Criminal vs Civil Disputes:
  • Civil: Judges decide based on the Balance of Probabilities and the courts' belief that there is a 50% likelyhood that the events took place as calaimed.
  • Criminal: Judges must be convinced Beyond a Reasonable Doubt and the prosecution must give sufficient evidence that the accused committed the crime.
• Quasi-Criminal Matters (regulatory offenses): regulatory offenses in areas as offenses such as the environment, fishing, employment, or under provincial jurisdiction are punishable by fines or imprisonment.
• Trial Courts:
  • The courts operate using Provincial, Supreme Courts, and Federal courts.

Judge/Jury

• Judge and Jury: In a case with both, the jury makes findings of fact, and the judge makes findings of law.
  • Findings of Fact: details regarding details of an event
  • Findings of Law: the rules or laws that are applied to a situation
• Judge Only: The judge makes both findings of fact and law.
• Court of Appeals:
  • When can you Appeal: If there is an error in findings of law, a case may be appealed however, requests will not be approved based on findings of fact.
  • New trials are not held and appeals judges read transcripts and address objections to the decision.
• Appeals Judges:
  • Appointed by the federal government from a list provided by provinces
  • Have tenure until they retire except for serious misconduct.
  • The Supreme Court of Canada has 9 judges however, appeals are heard by 7 or 9 judges although a quorum consists of 5 judges.

The Process of Civil Litigation

• Process: 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 between discovery and pre-trial
• Limitation Periods: Legal action must be taken within a time period.
• To remove ongoing uncertainty and ensure fairness.
• Jurisdiction: Courts may assume jurisdiction if:
  • 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 another's documents that may be used as evidence.
  • Examination for Discovery: Parties with their lawyers respond to questions under oath before a court reporter.
• The Trial:
  • The burden of proof rests with the plaintiff.
  • Lawyers cannot ask leading questions when examining a witness.
• Remedies:
  • Damages: Monetary compensation to a victim.
    • General Damages: Compensation for non-monetary losses such as pain and suffering
    • Special Damages: Compensation for expenses and pretrial losses.
    • Punitive Damages: Compensation to punish the wrongdoer
    • Accounting: A court order to pay over profits from the defendant's wrongdoing.
    • Injunction: A court order to stop conduct and remedy offensive offenses.
    • Specific Performance: A court order to fulfill the terms of an agreement.
    • Declaration: An official statement by the court on the law.
      • Class Action: Combining lawsuits against a common defendant due to similar facts.

Regulatory Bodies

• Administrative Tribunals: Specialized forums created by statute, with semi-judicial powers.
• Procedural Fairness in Tribunals: To determine our rights, three questions must be addressed:
  • Where did the tribunal derive its authority?
  • Was the decision making process fair?
    • Rules of Natural Justice: minimum fairness standards.
    • Bias: decisions may be overturned if bias is present or felt.
    • Principles of Fundamental Justice: tradition and convention that 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

• Tort: A social or civil wrong that gives one the right to sue and seek remedies, causes injury, harming their person, property, or reputation.
• Crime: Harmful conduct that is so serious that it poses a threat to society
• Breach of Contract: an act that breaches a contract might not be inherently wrong, a tort on the other hand is inherently wrongfconductul
• Intentional vs Unintentional Torts:
  • Intentional: in cases of intentional(deliberate) torts, courts may be compelled to grant punitive damages in addition to general and special damages.
  • Unintentional: unintentional torts result from negligent behavior that falls below a minimal social standard to a reasonable individual
• Vicarious Liability: the liability of an employer for injuries caused by an employee while carrying out their employment duties

Types of Intentional Torts

• Intentional Torts: Only leading acts should be intentional in torts, and do not need to be the case that the harm itself was also.
  • Trespass to Person: intentional physical interference with another person -Assault: a verbal or physical threat
    • Battery: unwelcome physical contact -Defenses for Trespass to Person: When consent operates as an effective defense your actions must be within the bounds of that consent. -Self-Defence: the law entitles people to use necessary force
      • Force used must be reasonable.
  • Trespass to Land: going onto another person's property - Continuing Trespass: a permanent incursion onto the property of another from the building or structure that encroaches on the property of another. - Defenses: a consent from informed and voluntary, and those who are acting in official capacity
  • Trespass to Chattels, Conversion, and Detinue:
    • Trespass to Chattel: direct, intentional interference causing damage to the goods of another
    • Conversion: interference and deprivation of someone else's property
    • Detinue: wrongful retention of someone else's goods
  • False Imprisonment: occurs when someone is being intentionally restrained against their will, and the person doing the restraining has no lawful authority to do so. -Malicious Prosecution: A criminal prosecution motivated by ill will towards the accused and lacking reasonable evidential grounds.
• Private Nuisance: When an individual uses their property that causes damage or interferes with another's enjoyment of their property.
• Requirements to Prove Private Nuisance: Substantial harm must be proven, and nuisance must be unreasonable in light of all the surrounding circumstances.
• Defamation: A published false statement that is to a person's detriment.
  • Requirements to Prove Defamation: the words would lower one's reputation, and the words in fact refer to the plaintiff.
• Types of Defamation:
  • Slander: spoken defamatory statements
  • Libel: written defamatory statements
• Damages for Defamation: Damages in defamation cases have limitations
• Anonymity in Defamation: in cases of cyber defamation, anonymity will not always protect the defendant service providers could be ordered to share the defendant's information
• Defenses for Defamation: If the statement in question is true and is exempt from liability for defamatory statements, this can no longer be considered defamatory.

The ABCD's of Negligence

• Negligence: A negligent, careless act or omission that causes injury to another person or his property.
• Four elements are needed to establish negligence.
• A: A Duty to Care: An obligation to steps avoid foreseeable harm. - Courts must determine whether the defendant owed the plaintiff a duty of care.
• Reasonable Foreseeability Test: The injury needs to be reasonably foreseeable and the degree of proximity should have been able to realize their actions pose a risk towards the other.
  • Donoghue v. Stevenson -Mrs. Donoghue went to a cafe where her friend bought her a ginger that ultimately caused her to become violently ill.
  • Misfeasance vs Nonfeasance:
    • Misfeasance: wrongful conduct
    • Nonfeasance: a failure to act
    • Usual nonfeasance activities do not warrant a duty of car
• B: Breach of Standard of Care: Once a duty of care is established the main question if weather defendant demonstrated sufficient care
  • Reasonable Person Test: Used to determine if the conduct in question is standards of what a reasonable person would have.
  • Circumstances to Consider:
    • Risk of injury, expenses, and Expertise of Defendant
  • C: Causation: Causation is used to determine that the defendant is truly responsible for the losses suffered. -“But For” Test: the plaintiff must prove that “but for" would have been incurred.
• Remoteness Test: Used to determine damages were far removed from the negligent act. D: Damages: For a negligence case to be established, some sort of loss to person or property must be suffered. Without any damages or loss, negligence cannot be established.
  • Thin Skull Rule: We take our victims as we find them
  • Crumbling skull: A principle that a defendant cannot be held liable for losses that were inevitable -Defenses for Negligence:
  • Voluntary Assumption of Risk: There must be understanding from both parties that the defendant assumes no responsibility to take care of the plaintiff and the plaintiff does not expect to.
  • Contributory Negligence: Failure to take reasonable care causes injury.
  • Illegality: The court's preserve a right to not entertain a negligence case that resulted in injury if the plaintiff was illegally or immorally at time of injury.
• Legislation Impacting Duty of Care:
  • No Fault Programs: Insurance programs compensating people for injuries
    • Occupiers' Liability: Occupiers of property have a special obligation to look out for properties on the tour
    • Invitee: a person coming onto a property
    • Licensee: a person coming onto a property -Trespasser: a person coming onto a property : Strict Liability: when doing something inherently dangerous or unusual, you are liable for any loss or damage caused.