CLAW326 Module 1 - Welcome PDF

1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Welcome Welcome to CLAW326, Law for Health Managers. There are 13 modules in this course. Each week, you’ll have a new module with new readings, content, and learning activities. The knowledge you bring about law for health managers will provide the unde...

1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Welcome Welcome to CLAW326, Law for Health Managers. There are 13 modules in this course. Each week, you’ll have a new module with new readings, content, and learning activities. The knowledge you bring about law for health managers will provide the underpinning or the foundation. You will be encouraged to share your experiences as we work through dilemmas and case studies. You may also check your own learning through interactive self-assessments. The work will be iterative, with more general foundational work at the outset of the course and then more applied learning from about week three onward. Before moving into the first week’s content, this course overview will help you to navigate through the course and modules. The pages that follow will cover: 1. Getting around the course 2. Working your way through the modules 3. Setting norms and expectations Getting Around the Course If you haven’t already done so, review the “Student Support” link in the main course menu for a general introduction to the tools used in online courses at The Chang School. You’ll notice that, each week, you’ll have very similar menu links on the left side of the course page. Make sure you look through all of them. Each week, you’ll have some brief introductory material, learning objectives, module content, readings, and learning activities. Finally, you may also have additional resources in some modules. The introductory materials will provide you with a brief introduction to the week’s content and may also remind you of links to previous weeks’ concepts that you might wish to refer to or review prior to starting on the new module. The learning objectives are provided as a tool to ensure you have adequately worked through the content of the week and have a good understanding of the concepts and material. Use the objectives as your own indicator of whether you’ve sufficiently met the learning goals for that week. The module content will be, essentially, an online lecture. Most of the time, the content will be delivered in text, and our hope is that you find it as conversational and understandable as in-class lectures. You may also be asked to watch a video clip or other kind of mixed media. The content will make up the learning material for each week’s module along with the readings. The module readings are an important part of your learning each week. Some weeks have more reading than others, so make sure you set aside time each week to go through the readings and try to understand the concepts and discussions that the authors are presenting. Most of the module content will help you “unpack” the concepts and material you’ll read, so doing the readings alongside the module content is always a good idea. The test yourself section is to test your own knowledge—this is optional but helpful, especially in preparing for tests or exams. Note that this activity is not graded. The assignments section will describe which assignments you are required to do each week to complete the module (with clear deadlines). Most weeks, assignments will include discussion questions to which you are expected to contribute, either as an individual or in a small group, in the online discussion forum. Many of the assignments are also listed in the Course Outline, which is located on the “Course Materials” area of the course. It is very helpful to review the “Course Schedule” page in the Course Outline prior to reviewing the content of each module. It is also helpful to check out the upcoming week so as not to miss, in some instances, a midweek deadline. Reminder For the discussion grade, you need to post your responses to the relevant discussion area. An original post plus responses to 2 classmates posts is the requirement in most cases. The resources in the optional resources section are not required readings or resources that you are required to access. They are simply references, readings, and web resources for you to refer to in the event that you want to learn more about a topic, in addition to the module content and readings, or if you wish to do additional research on a topic for one of your assignments. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 1/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome How should you work your way through the course? It is recommended that, each week, you read the introduction and learning objectives and make sure you are familiar with any assignments required of you. Then, do the readings that are assigned. After you have gone through the readings once, read through the content for the week; you should start to have a better understanding of the material as a result and can then engage in the activities and assignments. As a final step, go back to the learning objectives to make sure that, for the most part, you can meet each of the objectives. If you can’t, you’ll need to refer back to the content and readings, along with the activities and assignments, to try to ensure that you can meet the objectives. Remember, while the modules are weekly, you can always refer back to a previous module to review concepts or revisit difficult topics. The content, discussions, activities, and assignments will all be visible for the entire course, so that in addition to your more linear week-by-week movement through the course, you can also move around as you wish to ensure you’re learning what you need, when you need it. Working Your Way Through the Modules One important part of working through an online course is keeping up. While, yes, the modules are all visible throughout the life of the course, you are required to engage in the module content during the specific week it is running. The good thing about an online course is that you can work on the requirements whenever you want, wherever you want. If you want to post a comment at 3:00 a.m. one night, that’s fine! And, while this is a good thing in terms of flexibility, it can be confusing in terms of module “start” and “finish” times. Each module represents a week and the active work will take place during that week. That means that you are required to complete the learning activities during the module week, whether it is week one or week six. Some discussion boards will typically be active for the entire course. Others that are specific to a particular module will only be active for that module’s week, and you are expected to post any required postings during that week. Remember, though, that if a deadline to contribute to the discussion board is the 8th of the month, please don’t wait until the 7th at 11:00 p.m. to post your original piece. The members of your group need something to respond to so it is best to post your original piece by Wednesday each week leaving Thursday/Friday for classmates to respond. The goal of online discussions is to generate discussion, and part of your participation, as a group or an individual, is to take part in discussion, not simply post a one-way “here it is!” kind of message. You’ll get much more out of any course if you generate and engage in active discussion with others. Setting Norms and Expectations As part of any learning experience, whether in the classroom or online, setting norms is an important step to creating a learning environment that supports open discussion and critical thinking. Some of the topics we will discuss in our online discussions and modules will be contentious or may well be topics about which you hold a strong opinion one way or another. While you’ll be encouraged to share your views and opinions, make sure you do this in a civil and constructive way. It’s okay to disagree—in fact, it’s great!—but let’s make sure that we do so in a way that is respectful of our own and others people’s differences. At the end of the day, often, we’ll find we have to agree to disagree. The important part is not whether we agree; rather, it’s the quality of the discussion we have. The same kind of “netiquette” rules that apply to any online discussion apply here as well. Please review the participation details section of the Course Outline for more information on expectations and etiquette in your discussion postings. Introduction The field of health law is expanding. It is, as is all law, constantly in flux. Once regarded only as a subset of tort law, health law is now an entity in its own right. Where once the focus centred on the physician-patient relationship, now the challenges extend to other healthcare relationships and to the larger system. We see the latter trend in the increasing number of Charter of Rights and Freedoms and administrative challenges to government decision-making in the field of healthcare funding (e.g. over which medical services should be publicly funded under provincial/territorial insurance plans). Increasingly, health law is being taught to non-legal professionals with a view to their obtaining an understanding of the function of law as it relates to their professional practices. This module will discuss our basic legal system. We will learn about the sources, types, and various areas of law. We will learn to read and interpret a statute. Then we will learn about our court system, the adversarial system, and look at an overview of the civil litigation process and the course of litigation. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 2/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Topics and Learning Objectives Topics Our Basic Legal System Sources, Types, and Areas of Law Reading and Interpreting a Statute The Court System The Adversarial System The Civil Litigation Process (Overview) Course of Litigation Learning Objectives By the end of the module, you should be able to: Identify sources of digital legal resources Associate types and areas of law with their function Describe the parliamentary system of creating laws in Canada Distinguish the civil litigation process from other processes of law Explain the main function of each level of the court system Module To-Do List Here is a summary of important learning tasks that you should complete in this module: Complete the required readings listed in this module Study Module 1 material and complete the non-graded activities it entails Complete the graded Discussion Board Activity – Ice Breaker Readings and Websites Reading Required 1. Read How an Ontario Bill Becomes Law on the Legislative Assembly of Ontario’s Bills and Lawmaking page 2. Read How a bill becomes law - Federal on the Parliament of Canada’s website Supplemental 1. Legislation Act, 2006 c.21, Sched F. (Ontario Statutes/Regulations) https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 3/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome 2. Interpretation Act, R.S.C. 1985, c.I-21. (Federal Statutes/Regulations) Optional Resources Dykeman, M. (2001). Canadian Health Law Practice Manual. Toronto: Butterworths. Gall, G. (1990). The Canadian Legal System, 3rd ed. Toronto: Carswell. Morris, J. (1996). Law for Canadian Health Administrators. Toronto: Butterworths. Pellegrino, E. (1987). Toward a Reconstruction of Medical Morality. Journal of Medical Humanities and Bioethics, 8:7. Sneiderman, B., Irvine, J. and Osborne, P. (1995). Canadian Medical Law, 2nd ed. Toronto: Carswell. Waddams, S. (1987). Introduction to the Study of Law. Toronto: Carswell. Researching Websites As you know, this course targets adult learners with prior experience in the healthcare field and builds upon the responses of previous students. Thus, for the most part, you will be trained to find the law on the web by yourself so that if you become involved in a legal situation you will be better able to access the resources you need on the spot. Because it is important that you learn how to find statutes, we will provide one example of this in the Finding Statutes on the Web activity below. In most cases, however, you will not be “force-fed”—linked directly—to resources. You may, though, contact your instructor any time for help to find any resource. Selected resources that you’ll find useful in this course, and some direct links, follow. Websites for Ontario Statutes/Regulations/Bills e-Laws, Government of Ontario Canadian Legal Information Institute (CanLII) Website for (Ontario and other) Provincial Statutes/Regulations CanLII Website for Federal Statutes/Regulations CanLII Websites for Case Law CanLII Judgments of the Supreme Court of Canada, Lexum—This website is for Supreme Court of Canada cases. Cases reported in the Supreme Court Reports (with S.C.R. in their citations) and cases with S.C.C. after them are Supreme Court of Canada cases. Supreme Court of Canada cases can also be found on the CanLII website. Activity Finding Statutes on the Web https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 4/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome It is important that you learn how to find statutes on the web. Here are the directions to find examples of the sections of the provincial Legislation Act ss 67 and 68. 1. Go to Consolidated laws, on the e-Laws website. 2. On the left side of the page, click on “Browse”, then on the letter “L”. 3. In the Filter results section, tick the box entitled “Current”. 4. Scroll the listing to find “Legislation Act, 2006 c.21, Sched F” and click on it to open the document. 5. Scroll down to sections 67 and click on it (deals with number) and 68 and click on it (deals with gender). Finding Cases on the Web 1. Go to B.(R.) V. Children's Aid Society of Metropolitan Toronto, 1 S.C.R. 315, 1995 CanLII 115. The case at this URL demonstrates what a full Supreme Court of Canada decision looks like. It contains the full judgment in the B.(R.) case. Note that Supreme Court of Canada cases are numbered by paragraph, rather than by pages, and that there are 235 paragraphs in the full case. The case can be located in two different locations as noted. Our Basic Legal System The Canadian judicial system consists of a set of legal rules, public policy, and prevailing ethics. The legal rules that regulate conduct do not bestow certainty. Rather, they provide a system for assessing the nature and purpose of law. For example, judges in a case involving assisted suicide (legal in certain circumstances in Canada, through Bill C-14, assented to June 17, 2016, and covered later in this course)— or, for that matter, suicide (legal in Canada)—will often highlight prevailing ethical theory during their reasoning. Ontario law is termed “common law.” Globally, this phrase is contrasted with the term “civil law.” The latter, which derives from Roman law, is the older system. Civil law is now in use in much of continental Europe, Scotland, and some former French colonies (including the province of Quebec), as well as in other jurisdictions. The civil law employs a code, a thick document that attempts to lay down legal rules for all situations derived from the French. The Napoleonic Code of 1804 is the basis for all modern codes, including the Quebec Civil Code. Governments enact and amend their Codes, and courts apply the Code to particular disputes. The common law system derives from England in the era following the Norman conquest in 1066. It is the system of law in all Canadian provinces except Quebec, as well as in England, Australia, and New Zealand, to name a few common law jurisdictions. Originally, the common law was based on the Divine Right of Kings: the words (i.e., the judgments) of the monarch, the highest legal authority, became the basis for legal principles designed to apply in subsequent similar circumstances. Over time, decision-making power devolved to the monarch’s representatives (who functioned as judges). The decisions of these judges began to be recorded and published in order that the reasoning employed could be used in future cases. This is what is referred to as judge-made law or case law. The fundamental legal principle of stare decisis or “binding precedent” states that like or similar cases are to be treated alike. That is, a decision or judgment articulated by a higher court is binding on itself and on lower courts within the same jurisdiction; this means that, within the same jurisdiction, the lower courts must decide factually similar cases in the same manner as did the higher court. Non-binding decisions may be persuasive, and those from courts of other jurisdictions are less persuasive. Lawyers will argue this case law to try to support their arguments. That is, they will attempt to demonstrate that earlier judgments were based on factually similar cases and that these cases established legal principles which support their own arguments. But factual similarity is often an illusion. Because circumstances change and new disputes arise across time, judges need to consider different circumstances as time goes on. Thus, the law evolves. For example, where once medical treatment was duly given in accordance with the medical person’s decision, now judges will require that such treatment be preceded by informed consent. The case of Arndt v. Smith is a case on point (to be discussed in the section on the topic of informed consent, later in the course). Pause and Reflect The rule of law states that the law is supreme and applies equally to all. Judges are the final arbiters of law and nobody, including the monarch, is above the law. The law obtains its finality in part through the principle of res judicata, i.e., “the thing adjudged” or “the matter decided.” This principle establishes that once a legal matter has been finally determined (and no further appeal is allowed), that matter cannot be re-tried. There is potential here for anomalous results, in that there may be no possibility of criminal conviction even if compelling evidence of guilt arises following an acquittal. Click-n-reveal: Can you think of some recent court cases in which this principle has been applied? https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 5/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome There can be many examples. One of them is Cuthbertson v. Rasouli, 3 SCR 341. In this case, the Supreme Court decided that the Ontario Health Care Consent Act is valid provincial legislation. As explained by Jocelyn Downie in “The Supreme Court Decision in Rasouli” on the Impact Ethics website (October 21, 2013): “[T]reatment” requires consent from the patient or his substitute decision-maker; the definition of “treatment” under the Act includes the withdrawal of “life support that is effective in keeping the patient alive and forestalling death” [ibid at para. 40]; therefore, the withdrawal of life-sustaining treatment requires consent. The Supreme Court noted that, where a physician disagrees with a substitute decision-maker’s refusal to consent to withdrawal, the physician can go to the Consent and Capacity Board and argue that either the substitute decision-maker is not acting in accordance with the patient’s prior known wishes, or where such wishes cannot be ascertained, is not acting in the patient’s best interests. If persuaded by the physician’s evidence and arguments, the Consent and Capacity Board can “substitute its own opinion for that of the substitute decision-maker” [ibid. at para. 98]. In other words, the Supreme Court decided that under the Health Care Consent Act, physicians do not have the authority to unilaterally withdraw life-sustaining treatment—they cannot withdraw treatment without consent. However, patients and their substitute decision-makers do not have an unconstrained right to receive any and all treatment—a refusal of consent to withdrawal can be displaced by the Consent and Capacity Board. Sources, Types, and Areas of Law While legal matters are seldom limited to one discrete part of the law, it can be a useful learning measure to think of the legal system in terms of sources, types, and areas of law. Sources of Law There are two main legal sources of law: case law and statute law. Case law is not the only source of law. Case law was already discussed on the previous page, so we will focus on statutes here. Statutes have become the most important legal source of law. Statutes are written laws approved by legislatures, parliaments, or elected or appointed houses of assembly. Statutes, where they exist in relation to a case, are what a court will consider first, following which it will consider how previous cases have interpreted the statutes. As a general rule, students should remember the following: If in doubt, start with the statute. Governments enact legislation, including statutes. There are three levels of government in Canada: federal, provincial or territorial, and municipal. The Canadian Constitution divides statutory subject matter between the Parliament of Canada (which enacts federal statutes) and the legislatures of the provinces (which enact provincial statutes). Federal subject matter, in general, constitutes matters that affect all of Canada such as national defence and foreign policy; provincial and territorial subject matter comprises, again generally, matters only within their areas of jurisdiction, such as healthcare and education; municipal subject matter includes local matters such as policing, snow removal, and recycling. There is some overlap. However, territories (and there are currently three territories: Yukon, Nunavut, and the Northwest Territories) do not have the equivalent jurisdiction and protections granted to provinces by the Constitution. Canada Health Act, R.S.C. 1985, c. C-6, allocates healthcare to the federal sphere, but the Constitution gives authority over healthcare facilities to the provinces. The purpose of Canada Health Act is to “establish criteria and conditions in respect of insured health services and extended health care services under provincial law that must be met before a full cash contribution may be made” (section 4). The Canadian Constitution comprises in fact a number of documents, the most recent of which is the Constitution Act, 1982 (infra). The latter includes the Canadian Charter of Rights and Freedoms [Charter] (infra). https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 6/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Statutes begin their lives as bills and become statutes after they are enacted and have received royal assent. A bill which has been given first, second, and third reading by the legislature becomes law upon receiving the signature of the lieutenant governor signifying royal assent. Figure 1.1 is an overview of this process. All federal and provincial statutes are published. Figure 1.1. Overview of the process of how a bill becomes law. Source: Toronto Metropolitan University, 2018 Long Description + A table representing the process of how a bill becomes law: Step https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 Description Idea All laws begin as ideas First Reading Purpose of bill is explained Second Reading Bill is debated in principle Review by Committee Public hearings may be held and amendments considered Report to House Committee reports bill 7/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Step Description with any amendments Third Reading Bill is voted on for final approval Royal Assent Lieutenant Governor signs bill and it becomes law Subordinate legislation is used to refer to a legislative instrument made by an entity (i.e., Ministry of Health and Long-Term Care for legislation under the jurisdiction of that ministry) under a power delegated to the entity by the legislature or parliament and is often enacted under statutory authority. The most common example is regulations. Frequently, regulations contain detailed provisions relating to sections of their enabling statute. Such detail can be enacted without the debating process undergone by bills. This can be controversial. On the one hand, a government is able to act quickly to enact legislation that it wants in place. On the other, key aspects of legislation may not be subject to the public scrutiny that often accompanies the debate over a proposed bill. To complicate matters further, the term “case law” is often referred to as “common law” in Canada. Here, the term “common law” is contrasted with “statute law.” This meaning of “common law” is thus quite different from that obtained when discussing global law (where the term “civil law” is used). It is critical to understand the context, then, when you are discussing sources of law. This means that if you see the phrase “common law,” you need to know whether or not you are discussing global divisions of law (in which case the opposite is “civil law”) or sources of law (in which case the opposite is “statutes”). Types of Law In medieval England, courts of law heard and decided upon legal issues, at times to the detriment of fairness. To remedy this, courts of equity developed to hear and decide upon issues of fairness or a fair resolution of the issues. Over time, the two types of courts merged. Currently, in Canada as well as in England, the same judge in the same court will hear issues of both law and equity. Thus, one will sometimes find that a judge will comment on the need to determine a legal decision which is at the same time a fair resolution of the issues. Areas of Law There are several methods of describing the areas of law. Interwoven among all substantive areas of law, i.e. those concerned with the substance of law, is procedural law. The basis of procedural fairness is a process defined by the rules of natural justice: that one has a right to be heard (in Latin, audi alteram partem); and that one has a right to an unbiased hearing. Thus, one will often hear that the procedures employed within the court system must be fair. The key global areas of law, as noted on the previous page, are common law and civil law. Within common law lie the sources and types of law discussed above. (These also lie within civil law, but we are not concerned with civil law in Ontario.) Reading and Interpreting a Statute Statutory interpretation is an art unto itself. Several methods exist. Judges can spend many hours determining how to interpret a statute and apply it to a case. For instance, in an action brought against a healthcare professional in negligence on the grounds of lack of informed consent to treatment, a judge will look at section 10 of the Health Care Consent Act among other considerations in determining whether or not informed consent existed. The determination is not unimportant: a finding that informed consent existed would negate the possibility of that particular ground resulting in a finding of negligence. Rules of Interpretation There are three classic rules of statutory interpretation: the literal rule, the golden rule, and the mischief rule. In addition to the rules, definitions included in the statute and any preamble that precedes its provisions are used in its interpretation. A further resource is an interpretation act: the federal Interpretation Act [R.S.C. 1985, c. I-21] for federal statutes or the Legislation Act, 2006 for provincial statutes https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 8/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome [S.O. 2006, c. 21, Sched F]. In particular with respect to the latter, it is important to note that the drafters will use the word “shall” to dictate that the subject matter referred to is mandatory and “may” to demonstrate that it is permissive. The literal rule states that statute language which is plain and unambiguous should be construed in its ordinary sense regardless of the result. This rule can be problematic. Consider whether you think terms like “medically necessary” or “best interests of the patient” are plain and unambiguous. Why do you think as you do? In some cases, the legislators may have been deliberately vague in their articulation of terms in the statute. Why do you think this is the case? The golden rule is similar. It states that statute language which is plain and unambiguous should be construed in its ordinary sense but not regardless of the result. If, for example, the result would lead to an absurdity, the statute meaning is to be modified to the extent necessary to correct the absurdity. The mischief rule states that when interpreting a statute a judge should consider what mischief or deficiency the legislature intended to rectify in enacting the statute. The statute should be interpreted with reference to its purpose. Regardless of what rule is used, legal reasoning is often considered to be result-oriented. If judges want to find that informed consent existed, they will interpret a statute accordingly. If they want to find that no informed consent existed, their interpretations will so find. Reading a Case It is useful to make notes of cases when reading them. The form used most often for this is the case brief. The essential elements of a case brief for our purposes are as follows: procedural history; material facts; issues; judgment; reasoning; ratio decidendi; and obiter dicta. We’ll look at each element below. Further elements would be minority and/or dissenting opinions, if they exist. A minority opinion is one which agrees in the result with the majority, but the judge(s) articulating the minority opinion have arrived at that result via different reasoning from that used by the majority. A dissenting opinion is one which disagrees with the majority. A majority opinion becomes the judgment or decision in the case. If there is only one judge, then that judge’s decision is the judgment. Where there is more than one judge, the judges are said to “sit” in “panels” of uneven numbers; the full bench (or full complement) of the Supreme Court of Canada, for example, is comprised of nine judges. When a judgment of a nine-judge panel of that court results in a majority decision by five judges and a dissent of four judges, it is said to result in “a 5:4 split.” This often occurs when an issue of great social concern is being heard in the courts and may signify that a change in public policy is underway; i.e., the next decision on the same or a similar issue in that court may result in a 5:4 split in the other direction. This will be something to watch in health issues of great national significance; one of these at this time is the issue of whether Canadians have a constitutional right to use private insurance to pay for medically necessary services offered in private facilities if they have had to wait too long for that service in the publicly funded system (this issue arose in the landmark ruling handed down by the Supreme Court of Canada on June 9, 2005 in Chaoulli v. Quebec, a 4:3 split decision that included one minority opinion). Procedural History Procedural history is not always easy to discern from the case. Its relevance relates to the court, the level of which is important because of stare decisis (“whereby once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction”) (see: “Stare Decisis”, Law Library on the American Law and Legal Information website), and to the date, the significance of which decreases as the date recedes into history. If a case is being heard for the first time, its procedural history will constitute that court solely. If it is being heard on appeal, its procedural history will comprise the previous court level(s). The importance of procedural history lies in part in the context and the judicial reasoning that a reading of the decision of the previous level of court can provide. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 9/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Material Facts Only the material facts are relevant to a case brief. These are the most significant facts. The test for determining whether or not a fact is material is whether or not the judicial decision would have been different without that fact. If the judgment would have been different without a particular fact, then that fact affected the judgment to the extent that it is material to it. Non-material background facts may be useful to help to follow the case and may be used in a case brief so long as it is clear that they are not being employed as material facts. Throughout this course, the term “material” will arise in different legal contexts, such as “material risk” or “material change of circumstances.” In general, something that is material is relevant or significant to determining the outcome of the decision. Issues Issues are those legal questions that the court is attempting to decide. At times, the judge will state the issue(s). Often, there are sub-issues as well as issues. Issues can be articulated broadly or narrowly or somewhere in between. For example, if a patient ingests a decomposed cockroach that is in her hospital-provided beverage and subsequently becomes ill, she may decide to sue the hospital. The issue may be broadly stated as whether or not a facility is liable for what its occupants ingest. It can be narrowly stated as whether or not a hospital that serves a patient with a beverage containing a decomposed cockroach is liable. Or it can be stated somewhere on the spectrum between broad and narrow, as, for instance, whether or not a hospital is liable for the contents of beverages served on its premises. Consider whether, in the above example, it would be to the advantage of the hospital, or to the advantage of the patient, to articulate the issue narrowly. Why do you think as you do? There is a distinction between legal and factual issues. Generally, a factual issue is one for which evidence can be adduced, whereas a legal issue is one to which the court applies a legal principle. For example, whether the car that hit a person was red or blue would be a factual issue. However, the distinction can be difficult to make. That is, whether the person (who was hit by two cars) was injured by the red car and/or the blue car, and, if by both, to what extent each contributed to the injury, would be legal questions. Judgment The judgment is simply the decision reached by the judge, or by the majority if there is more than one judge. The decision will tell who won the case. If the procedural history indicates that the case was previously heard at a lower court level, the judgment will include whether or not the decision of the lower court was affirmed or reversed (in part or in full). The former means that the current court agrees with the earlier court; the latter means that it does not agree (again, in part or in full). Reasoning Figuring out why the judge reached the particular judgment provides the reasoning. The reasoning can be equated with the judicial analysis and can be found by tracing that analysis. In other words, why did the judge decide this particular case, given these particular facts, in favour of the winning side? If you think of the issue(s) as the question(s), and of the judgment(s) as the answer(s)—admittedly a simplistic conception of the matters at stake—you can think of the reasoning as the steps taken sequentially by the judges to go from the issue(s) and arrive at the judgment(s). For the purposes of this course, that is probably the best way to approach the reasoning. Ratio Decidendi The ratio decidendi (often reduced to “ratio”) is the legal rule (or legal principle) that came out of the case. In other words, it is the finding (or holding) re-articulated so that it may be used in subsequent cases. To illustrate, let us take a hypothetical case of battery—that is, the defending health professional is alleged to have battered a patient—a situation that we will discuss infra. Let us say that the judgment is that the health professional is found liable by the court. The reasoning would include the fact that s/he treated the patient without consent. The ratio, then, would be that a health professional who treats a patient without consent is liable in battery. That ratio can be used by lawyers arguing subsequent cases and by judges deciding those cases. Obiter Dicta The obiter dicta constitute a further, though non-essential for our purposes, element sometimes used in case briefs. They are those legal statements and conclusions contained within the reasoning that do not directly pertain to the specific facts of the case. These can be compared to background facts, in that obiter is useful to understand background. Statements made in obiter, however, are not binding. The Court System https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 10/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Ontario The Small Claims Court sits at the bottom of most charts of the Ontario civil court system. Within the administrative law system, there exist various administrative tribunals. A bit farther up the chart is the Divisional Court, which hears appeals from administrative tribunals; this will be studied in more detail in the section on the Regulated Health Professions Act later in the course. Provincial and territorial courts are used for minor criminal matters and smaller civil claims. The original courts in the system derive from the eighteenth-century courts of common law and equity; they are the superior provincial courts of general jurisdiction, and they are employed for serious trial matters. Provinces also have appeal courts, to which appeals can usually be made only on questions of law (i.e., not findings of fact); with very few exceptions, no further evidence is admitted at the appeal level. In Ontario, the provincial court is currently called the Ontario Court of Justice. In recent history, this court was called the Ontario Court (Provincial Division); subject to the fact that later cases often overturn earlier ones and therefore have greater value, cases heard in the latter court are of equal status to those heard in the former. Ontario’s superior provincial court, now called the Superior Court of Justice, was formerly called the Ontario Court (General Division); again, subject to the same qualification, cases heard in these courts are of equal precedential value. The provincial court of appeal in Ontario is called the Ontario Court of Appeal. Appeals may be heard in different courts not just in the Ontario Court of Appeal. When the Superior Court of Justice, for instance, is hearing a case that has not been heard elsewhere before, it is said to be sitting in its original jurisdiction; when that same court is hearing a case that has been appealed to it, it is said to be sitting in its appellate jurisdiction. Superior Court justices are appointed by the federal government and Ontario Court justices by the provincial government. Any further discussion of their respective jurisdictions is beyond the scope of this course. Figure 1.2 is a graph setting out the Canadian court system. Figure 1.2. An outline of Canada’s court system. Source: Toronto Metropolitan University, 2018 Long Description + https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 11/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Below the Supreme Court of Canada are the Court Martial Appeal Court, Provincial/Territorial Courts of Appeal, and Federal Court of Appeal. Under the Court Martial Appeal Court lie the Military Courts. Under the Provincial/Territorial Courts of Appeal lie the Provincial/Territorial Superior Courts; and under the Provincial/Territorial Superior Courts lie the Provincial/Territorial Administrative Tribunals and Provincial/Territorial Courts. Under the Federal Court of Appeal lie the Federal Court and the Tax Court of Canada; and under the Federal Court lie the Federal Administrative Tribunals. Supreme Court of Canada In 1949, the Supreme Court of Canada became the highest court in Canada, with no further appeals allowed from its decisions. This is in contrast to what existed earlier, when further appeals were taken to the Judicial Committee of the Privy Council (J.C.P.C.) in London, England. Some earlier cases will show the court level as “J.C.P.C.” for this reason. Federal Court The federal court has both trial and appeal divisions called, respectively, the Federal Court (Trial Division) and the Federal Court (Appeal Division). It hears matters that involve federal jurisdiction. For instance, it hears cases on privacy and confidentiality under the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5. The Adversarial System Within the common law system, two or more sides who are adversaries argue their issues before a judge who is said to be “disinterested.” This means that the judge has no personal interest in the outcome of the case. (Consider: In certain matters of health law and ethics, such as assisted suicide, can a judge ever be completely “disinterested”?) The adversarial system is different from that used in the civil law system in Europe and elsewhere; the latter system employs an inquisitorial approach, in which the judge plays a more active role in questioning the parties (i.e., the “sides”) and in investigating the issues. In contrast, within our adversarial system, the judge relies on the lawyers, as advocates for the parties, to bring to judicial attention any issues and supporting facts they think should be argued. As advocates, lawyers are subject to professional rules and standards designed to balance the lawyers’ obligations to plead (i.e., to “argue”) their clients’ case(s) with those to act legally and ethically toward the court and other counsel (i.e., “other lawyers”). This attempts to regulate conflicts between lawyers’ roles as advocates and their roles as “officers of the court.” Aspects of Proof The first thing to note is that the phrase “civil litigation” is contrasted with “criminal litigation.” In other words, it refers to litigation that is not within the criminal system. Within Canada, both civil and criminal litigation exist within the global common law system in place in all provinces except Quebec. In this section, we are going to take a look at key aspects of the civil litigation process: aspects of proof and the course that civil litigation can take. We will not look at the criminal court system in any depth. Again, this would be beyond the scope of this course, although, as you will hear, healthcare workers may face jeopardy in civil and criminal courts arising out of the same circumstances. Burden of Proof The phrase “burden of proof” (also called “onus of proof”) refers to which party must prove its case in order to succeed in court or in a regulatory College discipline hearing. In general in civil litigation, the plaintiff has the burden of proving the allegations that s/he has made. The other party is called the defendant. When a complaint is brought under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (to be discussed in more detail later), the health regulatory College (not the complainant) is said to “have carriage” of the matter and the College has the burden of proving its case. The other party, the College member, is called the respondent. Usually in criminal matters, the Crown has the burden of proving the case against the accused. Again, as in College matters, the person who alleges the wrongdoing is not directly a party; s/he is often referred to as the primary witness. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 12/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Thus, a healthcare professional in a case would be called a defendant if the case is in the civil system, a respondent if the case is in the regulatory system, and an accused if the case is in the criminal system. In some situations, the burden can shift to the opposing party. In general, these situations are beyond the scope of this course. Standard of Proof The phrase “standard of proof” refers to the degree of persuasion to which a party with carriage must prove its case. The normal civil standard (for civil litigation) is called a “balance of probabilities.” This means that, on a spectrum that ranges from 1 to 100, the party with carriage in a civil action must prove its case beyond a 50% level. The normal criminal standard is called “beyond reasonable doubt.” This is a considerably heavier burden, employed because of the very severe consequences, including potential loss of life or liberty, which can accompany criminal cases. It means that the Crown, which has the burden unless it is reversed (a subject beyond the scope of this course), must prove that there is no realistic chance that the charges are untrue. In discipline hearings under the Regulated Health Professions Act, the civil standard applies. However, while the Courts have said that there are only two standards of proof—the civil and criminal standards —it is generally said that in more severe discipline cases, such as sexual abuse (one form of professional misconduct), while the hearing is civil in nature the potential consequences, including potential loss of livelihood, are quite serious. The standard of proof is generally articulated being civil and requiring evidence/proof that is “clear, cogent and convincing,” and flows from the leading case of Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 76 D.L.R. (3d) 38 (Ont. Div. Ct.). The Course of Litigation Pleadings The term “pleadings” refers to the documents that must be filed with the court. The first document in civil litigation is the Statement of Claim, which is filed by the plaintiff who has decided to bring the action. The defendant then files a Statement of Defense. Following this, the plaintiff may decide to file a Reply. Other filings of documents may follow, particularly in a complicated case with more than two parties. In a criminal case, the charging document (in which the police charge the accused) is called an Information. In College complaints, a complaint (brought by a complainant) usually initiates the process; the regulated health professional against whom the complaint is brought (i.e., the member) is called the respondent and s/he may issue a response to the complaint. Discovery of Documents In civil litigation, at a set point in time after all documents have been filed with the court, an Affidavit of Documents is prepared by each party and served on the other party. This Affidavit lists all relevant documents in three different Schedules. The first Schedule lists all the documents the plaintiff has and is willing to provide to the defendant. The second lists any documents for which the plaintiff claims privilege (i.e., s/he is not willing to disclose these to the defendant). The third Schedule lists documents the plaintiff once had but no longer possesses. Oral Discovery of Parties Following this, in civil litigation, each party can “discover” the other at an Examination for Discovery. The party who is being discovered must take an oath to tell the truth. To be discovered is to be asked questions, while under oath, about the case. Settlement Negotiations Settlement can be negotiated at any time until a decision is reached. Following discovery, each party generally has quite a good idea about the case they will have to meet if they go forward to trial. This is one point at which settlement is often a realistic possibility. In most circumstances, parties to a civil dispute will settle before the matter reaches trial. Mediation Mediation is mandatory in many civil cases. Mediation refers to efforts to settle a legal dispute through participation of a third party (i.e., mediator) who strives to find points of agreement and to encourage the parties to submit to a fair result. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 13/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Trial If the case proceeds to trial, evidence will be given. The law of evidence can fill many volumes. It is sufficient to state here that only evidence (which may be spoken, a document, or a thing) that is admissible or allowed will be considered in the judge’s reasoning and decision, and that, once admitted, evidence must be weighed by the court. Damages Civil litigation damages must be claimed in the Statement of Claim. They are usually awarded at a successful trial. Pain and suffering, and loss of enjoyment of life, are typical claims in healthcare litigation. General damages may be supplemented by special damages (those incurred for specific purposes), punitive and/or exemplary damages, and other categories of damages such as lost income, cost of care including future care, cost of equipment, or other expenses necessitated by the injury. Costs Costs are usually awarded also. In cases where the court considers a party’s actions or omissions to be egregious, the court may increase the costs that party must pay. Again, the topic of costs could fill many volumes; we will not be discussing it at length in this course. Appeal A party who disagrees with a judge’s decision can often appeal that decision. Sometimes, instead of an appeal, a review is held. Other than the material that appears in the online modules including review questions, the various appeal/review routes and rules are beyond the scope of this course. Test Yourself Using what you learned in this module, complete the following review challenge. These activities are not graded; however, you can use them as a way to gauge your own learning. 1. The legal principle that like cases are to be treated alike is called: a. Res ipsa loquitor b. Res judicata c. Napoleonic Code d. Stare decisis Check Your Answer 2. The rule of law states in part that the law applies to all: a. Commonly b. Equally c. Similarly d. Well Check Your Answer 3. Which one of the following types of cases concern private matters? a. Discipline hearings https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 14/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome b. Civil litigation c. Criminal litigation d. All of the above e. None of the above Check Your Answer 4. A civil wrong for which, if it is proved in a court of law, the civil remedy of damages is available, is called: a. Duty b. Standard c. Tort d. Litigation Check Your Answer 5. A document that is introduced into the legislature with the intent of having it become a law is called: a. A record b. A statute c. A regulation d. A bill Check Your Answer 6. The rule that comes out of a case and can be used in subsequent cases is called: a. Obiter dicta b. Court rule c. Ratio decidendi d. All of the above Check Your Answer 7. Settlement of an action can be negotiated at which of the following times? a. Up to the time trial begins b. Any time until a judgment is reached c. After a judge makes a decision in a trial d. Up until the end of closing arguments in a trial Check Your Answer 8. The rule of law in Canada states that only the monarch is the final arbiter of law. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 15/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome a. True b. False Check Your Answer 9. Regulations are written laws approved by legislatures, parliaments, or elected or appointed houses of assembly. a. True b. False Check Your Answer 10. Which system of law relies on lawyers to bring attention to any issues and supporting facts they think should be argued? a. Adversarial b. Inquisitorial Check Your Answer 11. Which of the following courts can hear an appeal case relating to privacy and confidentiality issues under the federal Personal Information Protection and Electronic Documents Act? a. Ontario Court of Justice b. Ontario Court of Appeal c. Federal Court (Trial Division) d. Federal Court (Appeal Division) e. Small Claims Court f. Both B and D above Check Your Answer Description Becomes law upon receiving the signature of the lieutenant governor signifying royal assent. Term Statute Standard of proof Refers to which party must prove its case in order to succeed. Material fact Refers to the degree of persuasion to which a party with carriage must prove its case. Burden of proof https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 16/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome In general, something that is relevant or significant to determining the outcome of the decision. Reset Exercise Show All Matches Check-Up The following are review questions you should be able to answer for testing purposes by reviewing Module 1. You can use them to help prepare for course tests and exams. 1. Name the Canadian constitutional sources of law. 2. What is meant by the rule of law? 3. Define stare decisis. Why is it important? 4. Define res judicata and explain its significance. 5. What is the difference between a statute and a regulation? 6. What is a material fact? 7. Contrast the adversarial system with the inquisitorial system of law. 8. Define burden of proof (or, as it is sometimes called, onus of proof). 9. Define standard of proof. 10. Give two examples from the e-Laws site of statutes, using their correct citations. 11. Give one example from the e-Laws site of a regulation, using its correct citation. 12. What is the difference between a statute and a bill? 13. Where would you look to find Ontario statutes, both in books and online? 14. Where would you look to find cases, both in books and online? Summary As a result of studying this module, you should be familiar with the Canadian legal system. As you have seen, Canada is a common law system with the exception of Quebec. You reviewed some important legal principles such as the main sources of law: judge-made law or case law and statutes; the rule of law; stare decisis or binding precedent; and res judicata or the matter decided. https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 17/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome You also explored locating and identifying statutes and cases. You examined the parliamentary legislative process of bills, from the introduction of a bill to the final enactment of a statute. Various steps of a civil lawsuit were outlined in this module, to the point of discerning the reasoning of a decision and the ratio or legal rule that the case stands for. You discovered how to apply the various rules of statutory interpretation. Finally, the module presented the purpose and jurisdiction of the various courts. Up Next Next week we will continue with the examination of the Constitution, the Charter, and the jurisdiction of the federal and provincial/territorial governments in healthcare delivery. Discussion Board Question for Graded Assignment Discussion Due: Please post your original thread by Wednesday at 11:59 P.M. so as to provide something for your classmates to respond to and then remember to go back and respond to 2 of your classmates’ postings by 11:59 p.m. Friday for the opportunity to earn full marks. Please see the rubric in the Course Outline for marking specifics. Participation: Group Discussion Question – graded Due: Friday by 11:59 p.m. of this week. Please be aware that instances of suspected plagiarism will be referred to the Academic Integrity Office. It is very important that you submit your own work, in your own words, and give credit to others for anything you wish to include that is not your original work. At no time is the use of AI (Artificial Intelligence) allowed in any assignment or assessment. It is also important to take note that the purpose of this assignment is to evaluate your understanding of this week’s module so please make sure that your answer reflects the information contained therein. Assignment: If you have not done so already, please take some time to introduce yourself to your peers in the "Ice-Breaker" Discussion Board for this week. This must be completed before moving forward in the course modules and is worth 1% of your final mark. Please write in full sentences and cover all of the following. Please provide your preferred name and where you are taking the course from (helps me know what time zone you are in); What current or previous experience, if any, you have in health law, (or any law); Why health law is important to you or why you think it is important to society; What you hope to get out of this course; Include a summary of the overall message in the Academic Integrity Office (AIO) site. Any follow-up questions or comments?; and Why did you take the course? References Acts https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 18/19 1/14/24, 12:47 AM CLAW326, Module 1 - Welcome Constitution Act, 1982 Canadian Charter of Rights and Freedoms Canada Health Act Interpretation Act, R.S.C. 1985, c. I-21 Legislation Act, 2006, S.O. 2006, c. 21, Sched F Ontario Health Care Consent Act Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5. Regulated Health Professions Act, 1991, S.O. 1991, c. 18 Case Law B.(R.) v. Children's Aid Society of Metropolitan Toronto, 1 S.C.R. 315, 1995 CanLII 115 Chaoulli v. Quebec Cuthbertson v. Rasouli Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 76 D.L.R. (3d) 38 (Ont. Div. Ct.) Other J Downie. (2013, October 21). The Supreme Court Decision in Rasouli. Retrieved from https://impactethics.ca/2013/10/21/the-supreme-court-decision-in-rasouli/ Stare Decisis (n.d.) In Free Legal Encyclopedia online. Retrieved from http://law.jrank.org/pages/10463/Stare-Decisis.html https://de.torontomu.ca/de_courses/templates/m/?c=6A8018B3A00B69C008601B8BECAE392B&m=1&p=179950 19/19