Understanding the Definition and Theories of Law

What is Law?

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

Theories of Law

• Natural Law Theorists define law in moral terms, considering only "good" rules as legitimate law
• Legal Positivists define law by its source; for a rule to be law, it must be enacted by someone with the authority to do so
• Legal Realists define law in practical terms; a rule is law only if the courts enforce it

Categories of Law

• Substantive Law determines an individual's rights and the limits on their conduct in society
  • Examples include the right to travel, the right to vote, and prohibitions against theft
• Procedural Law determines how substantive law will be enforced, such as arrest procedures and rules about court processes
• Public Law governs how a country is governed
  • It includes laws affecting individuals' relationship with 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 the battle of Quebec in 1759, Canada adopted the Common Law system in all provinces and territories, except Quebec
• Quebec adheres to the French Civil Law legal system

Common Law

• Legal system where judges apply customs and traditions and follow each other's decisions
  • Stare Decisis (following precedent): judges must adhere to 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 but is considered, not binding, in other provinces
    • Distinguishing the Facts: Judges determine whether binding precedent exists by comparing case facts to proposed precedent
  • Court of Equity: Administers equity based on principles of fairness.
    • It was created to address situations where common law courts couldn't reach fair verdicts
    • Formerly separate, now combined with common law
    • It was merged in 1873 but retains distinct bodies of law
  • Statutes: Laws enacted by parliament
    • Parliamentary Supremacy: statutes prevail where case law and statutes conflict

Civil Law

• Central code-based legal system with broad legal principles applied by judges
• Founded by Roman Emperor Justinian in the sixth century, Roman law was codified for use throughout the Roman Empire
• It was later revised by Napoleon in the 19th century, resulting in the Napoleonic Code

The Constitution of Canada

• The British North America Act of 1867 (BNA Act), now the Constitution Act, had 3 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: Parliament creates legislation or statute law
  • Determined the structures and powers of the provincial and federal governments
• The Canadian Constitution, or "rulebook," comprises of three elements:
  • Statutes
  • Case Law on constitutional issues, such as division of powers
  • Conventions: unwritten rules for government operation

Issues Faced within the Constitution

• Paramountcy: Federal law takes precedence when federal and provincial powers overlap and laws conflict

Exercising Legislative Power

• A bill must undergo a specific process to become law:
  • First Reading: The bill is introduced without debate
  • Second Reading: It is re-read and debated before 'Committee of Whole' review and amendments
  • Third Reading: The bill is read and debated, before a vote
    • If passed, sent for Royal Assent
    • In federal bills, steps 1-3 are repeated in the senate

Protection of Rights and Freedoms

• Canadian Bill of Rights (1960): First attempt to protect Canadians' basic rights
  • It was merely legislation, and not part of the Constitution; The federal government could pass new legislation violating the bill.
• Charter of Rights and Freedoms (1982): It was entrenched in Constitution, superseding other laws

  • Limitations:

    • Reasonable Limits: Rights and freedoms may be limited if demonstrably justified in a free and democratic society
      • e.g., Freedom of expression limitations for libel, slander, or child pornography.
      • The Oakes Test (R. v. Oakes) is used to define reasonable limits.
      • Legislation must address pressing concerns in a free and democratic society
    • Proportionality Test: Measures must be carefully designed to achieve objectives, be rationally connected, and impair rights minimally while being proportional.

  • Notwithstanding Clause: Allows provinces and the federal government to override sections 2, and 7-15 of the Charter by stating the legislation operates "notwithstanding" the charter.

    • It applies to fundamental freedoms, legal rights, and equity rights

    Restriction of Charter: Applies only to governments/agencies; not personal/business disputes

Charter Provisions

• Fundamental Freedoms: Guarantees freedom of conscience, religion, belief, opinion, expression, assembly, and association (section 2)
• Democratic Rights: The Charter (sections 3,4,5) guarantees the right to vote, and run in elections; Elections must be held every 5 years (section 4)
• Mobility Rights: Canadians can travel and live anywhere in Canada and enter/exit the country (section 6)
• Legal Rights: Guarantees the right to life, liberty, and freedom unless taken away in accordance with justice principles; Prohibits unreasonable search/seizure and arbitrary imprisonment (section 7,8,9)
• Equality Rights: Section 15 prohibits 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 (sections 16-22)

Alternatives to Court Action

• Alternative Dispute Resolution: Methods such as negotiation, mediation, and arbitration can solve disputes outside of court
  • Negotiation: The parties decide for themselves
  • Mediation: A neutral third party helps the parties find a solution
  • Arbitration: A neutral third party makes a binding decision

Advantages of ADR vs Litigation

• Parties retain control
• Less taxing than courts
• Avoids lengthy delays
• Avoids distraction of key employees
• Quicker resolution
• Private

Disadvantages of ADR

• Lack of judicial fairness/impartiality
• Mediators can't ensure all information is presented
• Courts level playing field to avoid inequalities, which ADR can't
• Lack of enforcement tools
• Decisions cannot be appealed
• Decisions are not made public, thus doesn't deter future actions

The Courts: Publicity

• Courts are generally open to the public except:
  • In-Camera Hearings: Private when prejudicial to national security
  • Cases Involving Sexual Assault or Children: Public but publication bans protect victims' identities

Criminal vs Civil Disputes

• Civil: Judges decide based on the "Balance of Probabilities" (greater than 50% likelihood)
• Criminal: Judges must be convinced "Beyond a Reasonable Doubt"
• Quasi-Criminal Matters: Regulatory offenses punishable by fines

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 determines facts; judge determines the law
  • Findings of Fact: Details of an event
  • Findings of Law: Rules/laws applied
• Judge Only: The judge determines both facts and law

Court of Appeals

• Appeal is possible if errors in the findings of law occur.
• Appeals judges base judgments on case transcripts and address objections to decision
• Appeals Judges: appointed by federal government from provincial lists; have tenure until retirement
  • They can only be fired in cases of serious misconduct
  • The Supreme Court of Canada consists of 9 judges; a quorum of 5 is required, and appeals are typically heard by 7 or 9 judges

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 can be offered between discovery and pre-trial

Limitation Periods

• Legal actions must be taken within a specified time frame to eliminate uncertainty and promote fairness

Jurisdiction

• Courts assume jurisdiction if:
  • The defendant is a resident of the province
  • The defendant carries on business in the province
  • The tort occurred in the province
  • A contract related to the dispute was made in the province

The Discovery Process

• Discovery of Documents: Each party can access relevant documents held by the other
• Examination for Discovery: Parties/lawyers provide sworn testimonies to a court reporter; this can be used later at trial

Remedies

• Damages: Monetary compensation to the victim
  • General Damages: Compensation for future financial/non-financial losses like pain/suffering
  • Special Damages: Compensation for actual/calculable losses
  • Punitive Damages: Extra damages intended to punish the wrongdoer
• Accounting: Payment of profits derived from the defendant's wrongdoing
• Injunction: A court order to stop/remedy offensive conduct
• Specific Performance: Breaching party must fulfill contract terms
• Declaration: Court statement on applicable law

Class Action

• Multiple similar lawsuits are combined against a common defendant

Regulatory Bodies

• Administrative Tribunals: Specialized bodies created by legislation to resolve disputes and enforce laws

Procedural Fairness in Tribunals

• To assess rights before a tribunal, ask:
  • Where did the tribunal derive its authority?
  • Was the decision-making process fair?
    • Rules of Natural Justice: Minimum procedural fairness
    • Bias: Decision may be overturned if bias exists
    • Principles of Fundamental Justice: Fair hearing by an impartial decision-maker
  • What recourse is there for failures in jurisdiction/procedure?

The Nature of Torts

• Tort (vs Crime/Breach of Contract): A social or civil wrong entitling one to legal remedies:
  • A tort occurs when someone causes injury to another's person, property, or reputation
  • Crimes are so dangerous that they are considered threats to society
  • Breach of Contract: It might not be inherently wrong, but a tort is inherently wrongful conduct

Intentional vs Unintentional Torts

• Intentional Torts: Courts may grant punitive damages in addition to general/special damages
• Unintentional Torts: Negligent behavior below minimal social standards

Vicarious Liability

• An employer is liable for injuries caused by employees acting within their employment duties

Types of Intentional Torts

• Intentional Torts: Only the act needs to be intentional, not the harm itself

Trespass to Person

• Definition: Intentional physical interference with another person
  • Assault: Words/actions causing fear of physical interference
  • Battery: Unwelcome physical contact
    • Defenses:
      • Consent: Informed and voluntary consent
        • Your actions must be within the bounds of that consent. Ex. mike tyson biting evander holyfield's ear was outside the bounds of consent for boxing
      • Self-Defense: Justified and necessary force against an attacker
        • Force used must be reasonable; e.g., shooting someone for shoving is excessive

Trespass to Land

• Definition: Entering another's property without permission/lawful right

Continuing Trespass

• Permanent incursions onto property, such as a structure encroaching onto a neighboring property
  • Defenses:
    • Consent: when informed and voluntary -People Acting in an Official Capacity: postal workers, meter readers, municipal inspectors, and the police have a right to come on private property without trespassing

Trespass to Chattels, Conversion, and Detinue

• Trespass to Chattel: Direct, intentional damage to another's goods
• Conversion: Interference/deprivation of someone's property
• Detinue: Wrongful retention of someone's goods

False Imprisonment

• Intentionally restraining someone against their will with no legal authority
  • Requirements:
    • Person's liberty must be restrained
    • Restraint must be unlawful

Malicious Prosecution

• Criminal prosecution motivated by ill will without reasonable grounds

Private Nuisance

• Using property in a manner damaging/interfering with another's enjoyment of their property
  • Prove:
    • Substantial harm
    • Unreasonable given surroundings

Defamation

• Definition: Publishing a false statement detrimental to someone's reputation
  • Prove:
    • Defamatory language, lowering reputation
    • Reference to the plaintiff
    • Publication to at least one other person

Types of Defamation

• Slander: Spoken defamatory statements
• Libel: Written defamatory statements

Damages for Defamation

• Damages are uncapped

Anonymity in Defamation

• Anonymity is not guaranteed in cyber defamation, as web providers can be ordered to reveal information

Defenses for Defamation

• Truth: A true statement cannot be defamatory; the defendant bears the burden of proving it is true
• Absolute Privilege: Exemption for statements in legislatures/courts

Qualified Privilege

• Exemption for statements pursuant to a duty, made honestly, without malice, and shared with those who need to know

Fair Comment

• Defense for opinions on public figures/works

Responsible Communication on Matters of Public Interest

• defense to defamation excusing incorrect statements on matters of public interest where responsible journalism was applied.

The ABCD of Negligence

• Negligence: an unintentional, careless act/omission causing injury
• There are four elements to establish negligences, all of which need to be present

A: Duty of Care

• The obligation to take steps to avoid foreseeable harm, Courts must first determine whether the defendant owed
  • the plaintiff a duty of care or not through the reasonable foreseeability test.

Reasonable Foreseeability Test

• Was the injury reasonably foreseeable? and
• 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. D became ill from the decomposed snail at the bottom of her ginger beer bottle and beer manufacturer argued to the court that no duty of care was in place

Misfeasance vs Nonfeasance

• Misfeasance: Wrongful conduct

• Nonfeasance: A failure to act which usually does not warrant a duty of care

• B: Breach of the Standard of Care: determining if the defendant

  • demonstrated sufficient care, as assessed by the reasonable person test.

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

• Risk of Injury: If elevated, actions to prevent said risk of injury are elevated
• Expenses: if something can be made extremely “safe” but the cost of doing so is so exorbitant that it is not feasible, it cannot be considered as a breach of the standard of care
• Expertise of Defendant: The expertise of the
  • defendant are also taken into account. A doctor is
  • held to a higher standard (in a medical sense) than
  • an ordinary person with no special training

C: Causation

• determining if the defendant is truly responsible for the damage caused.
• "But For" Test: Plaintiff must prove, “but for" the conduct of said defendant, no damage or loss should have incurred
• Ie. you now must prove that “if the defendant had/hadn’t done xyz, this would not have happened”

Remoteness Test

• used to determine whether the damages suffered were too far removed from the negligent act
• D: Damages: For a negligence case to be established, some sort of loss to a person or property must be suffered, thus must be damages

Thin Skull Rule

• We take our victims as we find those with unique physical/mental health , if you cause greater harm, then you must be held responsible for full extent of damages

Crumbling Skull Rule

• you cannot be held responsible for inevitability; if someone will lose their talent in the future/ deteriorate naturally, you are not responsible

Defenses For Negligence

• Voluntary assumption of risk: There must be an understanding from both parties that the defendant assumed no responsibility to take due care of the plaintiff, and the plaintiff did not expect them to
• Contributory Negligence: Plaintiff's lack of care also contributed to damages
• lllegality (ex Turpi Causa): If negligent damage was caused by the plaintiff acting illegally or immorally, courts are at liberty to reserve a right to not entertain the plaintiff

Legislation Impacting Duty of Care

• No fault programs for injuries at fault or not
• Occupiers' Liability:In common law, occupiers of a property have a special obligation to look out for the welfare of visitors on their property

Invitees

• A person coming onto a property for business

Licensees

• A person coming onto a property with permission but not for business

Trespassers

• A person coming onto a property without permission, regardless of the purpose

Strictly Liability

• When doing something dangerous or unusual, the person is responsible for all damages caused