Chapter 2: Sources of Law in Saskatchewan

Sources of Law

• Law is the enforceable body of rules that govern a society.
• Saskatchewan law comes from common law and statute law.

Common Law

• Refers to court-based, judge-made law recorded in written decisions.
• It derives authority from historical customs and judges' decisions.
• The common law system originated in England and evolved over centuries.
• Introduced into Saskatchewan during England's colonization of Canada and continues to evolve.
• The doctrine of "stare decisis" is vital, meaning "let the former decision stand".
• It promotes uniformity by following earlier decisions on the same issue.
• Judges must review facts of past decisions and compare them to the current case to avoid identical cases.
• The Supreme Court of Canada carries the greatest weight in law.
• Appeal courts decisions of provinces are binding on lower courts.
• Provincial trial court decisions govern future decisions on same points.
• A judge may refer to English cases if there is no Canadian Legal Authority.

Equity

• During the Tudor and Stuart reigns, common law became rigid, leading to inequitable results.
• Litigants petitioned the king, who was the source of all legal rights, to hear cases.
• The king passed the function to his chancellor, creating courts of chancery or equity administering equitable rules.

Joining of the Two Systems

• In the 1870's, the English Parliament fused the courts of equity with common law courts in the Judicature Acts.
• Today in Canada, both court systems are combined.
• The judges can apply common law and equitable principles, but equitable principles take priority in conflict.

Statute Law

• Statute law, or legislation, is law made by government representatives in the federal Parliament, provincial legislature, or municipal council.
• The federal government has exclusive authority relating to banking, currency, marriage and divorce, and criminal matters.
• Provincial governments handle property and civil rights, municipal institutions, and education.
• Municipal governments are not granted authority under the Constitution, but powers pass to cities or municipalities within the province.
• Local governments pass bylaws governing matters within their jurisdiction.

Relationship Between Statute and Common Law

• Legislation often changes the common law since developing new principles case by case is slow.
• Requirement for real estate agents to have licenses was created by The Real Estate Act.
• In answering a legal question, a judge seeks statures before previous court cases

Categories Within the Legal System

• Civil law (private law) covers relationships between individuals of no direct concern to the state, i.e. a contract.
• Public law covers the constitution, bodies of the government, relationship between state/individuals, i.e. tax law, criminal law.

Real Property Law

• This is influenced by civil law from the view of a real estate registrant.
• Due to land's unique characteristics, legal principles have developed exclusively for real property.
• The principles come from previous court decisions and the current legislation.
• Real property law has historical basis in the feudal system, dating back to the Norman Conquest of England in the 11th century.
• William the Conqueror divided the land into parcels for barons/knights for assistance in the conquest/services.

Real Property Statutes

• Legislation varies widely from province to province.
• Western provinces, including Saskatchewan, have a Torrens land registration system.
• Some eastern provinces have a recording system of title registration.
• The federal government can affect real property in a province by, for example, expropriating land for federal purposes.

Judicial System: Saskatchewan Court System

• Saskatchewan's court system deals with criminal cases and civil matters.

Administrative Tribunals

• These are not part of the court system.
• They are less formal bodies, to hear disputes.
• Their decisions are reviewable by the courts to ensure they act fairly and lawfully.

Courts of Original Jurisdiction

• This is where a dispute is first heard.
• Judgments are passed.
• There are also referred to as trail courts and include: the oral testimony of witnesses, documents, and any other relevant materials.
• There are two civil courts of original jurisdiction in Saskatchewan, being the Small Claims Court and the Court of Kings's Bench.

Small Claims Court (Provincial Court)

• Have jurisdiction over most claims of $30,000 or less.
• Essentially a subdivision of the Saskatchewan Provincial Court.
• If the claimed exceeds monetary limit, the claimant can either reduce the claim or bring the action in the King's Bench.
• Disputes involving title to land, slander, libel, bankruptcy, false imprisonment, or malicious prosecution are handled by King's Bench.

Court of King's Bench

• Highest trial court in the province, also know as the King's bench.
• There is no monetary or subject matter limitation on claims to be heard.
• An action can be brought before King's Bench in any of its locations.

Appellate Courts

• After a trial judge makes a decision, either party may appeal to a higher court.
• A person bringing the appeal is called the appellant.
• Generally, the court won't rehear evidence and will review the legal principles from the trail judge.
• The decision may be reversed if the trail Judge erred in applying those principles.

Appeal from Small Claims Court

• Taken to the King's Bench, but does not automatically lead to a new trial.
• There has to be legal or factual errors to order a new trial.

Appeal from King's Bench

• An appeal is taken to the Saskatchewan Court of Appeal.
• A panel of judges hears the appeal in the Court. Therefore the view of the judges decides the matter.

Appeal from the Saskatchewan Court of Appeal

• Leave to appeal to the Supreme Court of Canada in Ottawa may be sought.
• The Supreme Court of Canada can choose not to hear the appeal to happen
• Supreme Court of Canada comes before a panel of 3,5,7 or 9 judges.
• Like in the provincial appellate courts, the evidence is not reheard.

Procedure for Bringing a Claim

• Where a civil wrong is committed, the injured party seeks a remedy in the court system by beginning a lawsuit

The Parties to a Lawsuit

• Common law system based on a adversarial process.
• Fact finders weigh both sides of the case and come to a binding decision.
• Party alleging the wrong is the plaintiff, while the party defending the lawsuit is called the defendant.
• Not every claim results in trial. Most are settled out of court by the pre-trial process and costs of court.

Written Pleadings

• Under the King's Bench Rules, a plaintiff begins an action by filing details a statement of claim to the defendant.
• The defendant answers by a statement of defence denying the claims made by the plaintiff.
• Numerous replies are made, so the parties agree on the points that they disagree on.

Discovery

• Proceedings reveal the relevant evidence in the case before trial.
• They include examinations for discovery, and discovery of documents. The examination for discovery can be used in cross-examination of the party who gave the evidence under oath.
• Discovery of documents sees each party provide all relevant documents to the other party before the actual trial occurs.
• It reveals most facts before the actual trial so the Parties may be more likely to settle their dispute out of court.
• The possible delay encourages a settlement as well.

The Trial

• Plaintiff must prove their case on the balance of probabilities.
• The version of events must be true and supported by the evidence
• Obligation of the plaintiff to prove its case is known as the burden of proof.
• The plaintiff establishes their case by calling witnesses and questioning each witness under oath.
• The defendant's lawyer can cross-examine each witness.
• Closing argument is given to summarize the legal position.

The Judgement

• The court will issue a judgement that resolves the issues of the case between the parties.
• The Judgement may include an order of a particular remedy or a course of action

Court Costs

• The risk of court costs influences a decision to settle out of court.
• This is the monetary allowance that the court orders the losing party to pay as a partial reimbursement of the winning party's legal expenses.
• Court costs partially reimburse the successful party for legal fees and discourage people from starting weak cases.

Mediation

• Mandatory attendance in the the Court Mediation Program (CMP), found in many areas of Sasketchewan's Small Claims registries.
• Attending promotes a settlement between both parties.

Arbitration

• Alternative to litigation involving an arbitration.
• The arbitrator reviews the evidences from both parties.
• Arbitration may be preferred to litigation as it's know for flexibility, privacy ect.
• Commercial leases often include arbitration.

Enforcing A Judgement

• The losing defendant is know as a judgement debtor.
• An examination of the Judgement Debtor should be done.

Examination of the Judgement Debtor

• With a judgement in a plaintiff's favour, the plaintiff has to collect the amount owed.
• A plaintiff can perform searches to review all the debtor's income as well as assets.
• If debts are still not potentially satisfied, then the debtor may apply to be examined under oath.

Execution

• Seizing and selling is achieved by execution.
• A writ of execution is issued directing seizure.
• If there are no assets available, the sheriff returns the write to the court.

Remedies Against Land

• If judgment debtor owns interest in land, the judgement can be registered the appropriate land title.
• Judgement must be renewed every second to be valid.

Garnishing Order

• If a third person owes money to the judgmental debtor, the plaintiff can acquire that payment by serving a garnishing order to the third party
• The third party disobeys the garnishing order, that third party is liable and has to the the payment to the court.
• Garnishing all of an employee's wages is not possible.
• Provincial legislation requires that the greater of 70% percent of wages or $1,500 plus $300 for each dependent to be exempt from seizure.
• A person can no longer be imprisoned merely for non-payment of a debt.

Limitation Periods

• Once a legal right to bring an action arises, the person has to exercise it within a prescribed period of time.
• The Limitations Act is a default statute.
• A "basic limitation period" of two years applies to most civil claims.
• The basic limitation period begins on the day the claim is “discovered", unless liability is acknowledged.
• According to section 6(1) of the Act, the date of discovery is on the day the claimant knew:
• that the injury, loss or damage had occurred;
• that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim;
• that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and
• that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy it.
• The Act also contains an ultimate limitation period (ULP) of 15 years.
• Both limitation periods are reset to begin on the date of acknowledgement if the defendant acknowledges liability.
• Acknowledgement may be established by a partial repayment or written confirmation.
• Either the basic limitation period or the ULP will prevent a claimant from bringing an action.
• If a court action brought against you, consult a lawyer quickly to avoid accidentally acknowledging liability and resetting the limitation period.
• If a Real Estate Insurance Exchange (REIX) Insurance Program is to be used give written notice to REIX asap about a potential or actual claim against registrant.

In Equity

• Equitable remedies require that the plaintiff brings these claims without undue delay.
• Known as the equitable doctrine of laches.
• A person who takes what the court views as an unreasonable amount of time runs the risk of being denied an equitable remedy.