Mana 298 — Chap 1,2,3 Copy PDF

**[WHAT IS LAW]** - One of the main reasons why law has to be in **[writing]** and **[publish]** : - "Ignorance of the law is no defence" - If you break it, there is sanction : fine, jail time, pay damage - Breaching a law entitles a sanction - Who determines the law ? It'...

**[WHAT IS LAW]** - One of the main reasons why law has to be in **[writing]** and **[publish]** : - "Ignorance of the law is no defence" - If you break it, there is sanction : fine, jail time, pay damage - Breaching a law entitles a sanction - Who determines the law ? It's the government 2. **[LAW OF THE LAND]** - Rules of behaviour in force in a particular society which result in peace within the group, security from wrongdoing, and order which result in predictable outcomes. - These set of rules form a system of law for the group. - The Law: - Protects us from wrongdoing by ensuring that wrongdoers are punished or pay for their wrongful acts; - Imposes standards of conduct (what can be done and what cannot be done) - Standards provide predictability and stability for the community. - Who decides: - Depends of the type of society we live in. (democracy, dictatorships, etc...) 3. **[UNDERSTANDING DOMAINS OF LAW]** - **[PUBLIC VS PRIVATE LAW]** - When you have a law that empowers a government agency to tale actions on society behalf, this is deemed to be a public law - In case of an assault, the crown prosecution ( lawyer for the crown ) - The crown vs the accused, not the victim - Private laws are laws that regulate relationships between individuals - Everything in the civil code is private law - **[Public]** : criminal code, tax fraud, bankruptcy, highway law, theft (robbery) - **[Private]** : contract law, property law, employment ( could be a grey zone : CNSST ) , commercial law ( could be grey zone : lease / mortgage ) - **[CIVIL VS COMMON LAW]** - Two legal traditions in Canada - **[Common Law ]** - Started in Britain in 1700's with King on top of the pyramid, who is enacting the three branches of gov ( legislative, executif, and judiciary ) and would hear the dispute in the kingdom - Chicken goes on another land, it's his now ( ownership transfer ) - Names judges in different land : if you have a similar case to this chicken, you have to render the same judgement ( **[precedents]** ) - **[Distinguishing]** : distinguish facts from the chicken to the cow - **[JUDGE-MADE LAW]** - **[Civil Law]** - Came from the institute of Justinians ( Rome ) - Written code of law (Codex) - Everywhere they conquered, they brought this written code of Law from France, they all had to follow this code and abide by it - Went from Romain to Napoleon Code, which France adopted - Comprise with the British : business with the Kings had to be done under common law but in between citizens of New France, they kept using the civil code for law ( Plains of Abraham ) - **[SUBSTANTIVE VS ADJECTIVAL LAW]** - **[Substantive]** : right or obligation ---\> what you are entitled to or obliged - Give rights or impose obligation ( tells u the law ) - **[Procedural :]** tells how to refer / use it - **[CREDITOR VS DEBTOR ]** - Selling a car for money - It's a contract of sale, they both have an obligation (bilateral contract) - If I have to deliver the car, who has the obligation ? The car owner ( the debtor ) he's entitled to receive the car and the person receiving the car is the (creditor ) - If he has to come pay for the car, the roles would be inverted - We need to understand what the obligation is - The person who owes the obligation is the **[debtor]** - The person entitled to the obligation is the **[creditor]** 4. **[PRESCRIPTION ]** - The time delay you have to CLAIM a right before losing it OR obtain a right - To sustain a right, you must file it in \_\_\_\_\_ time. - Fired unsuccessfully: 45 days - Extinctive prescription : you lose the right - For civil law, it's 3 years - To find a prescription, its in the law - Slander, defamation : you have 2 years - You can acquire rights - Acquisitive prescription : you can acquire a right after \_\_\_ time. - X extends his parking in front of Y, treating it as his and does it for 12 years. If Y sells to Z, X can claim this ownership of this property - 10 years for immovable property, 3 years for movable 5. **[TO SUE --- 5 W'S ]** 1. **[What]** ? - Suing mean to bring action against another before an independent and impartial decision-maker (generally a judge); 2. **[Why ?]** - The person suing is claiming that an obligation is owed while the person being sue is claiming not to owe the obligation. - 3. **[Who?]** - Creditors vs Debtors - Plaintiffs vs Defendants - Appellants vs Respondents 4. **[Where ?]** - Where defendant is domiciled; - Where defendant resides; - Where defendant has property; - Where the parties agree to have case heard; - Where the contract was made; - Where the injury took place; - Where the immovable property in dispute is located 5. **[When? ]** - Before the plaintiff is prescribed? - 3 years claim damages for personal injury - 90 days damages for psychological harassment; - 45 for dismissal without a "good and sufficient cause" - 10 years to execute a judgment 6. **[LEGAL SYSTEM]** - Every Legal system has: - A method of bring laws into existence; - Laws that are in force; - A method of enforcing compliance to the laws in force. 7. **[LAW AND JUSTICE]** - Justice is related to law - We want the application of that law to lead to just and fair results - What do you think of the case of the "speeding doctor"? - Paediatrician gets a call, he rushed to the hospital and burns three stop signs, police offers pulls him over and give him a ticket - By breaking the law, he could of endangered other people - Law is written "only ink on paper" - Dura lex sed lex - No emotion\--no feeling - It conveys the legal standards of behaviour required of us. - The law is interpreted, applied and enforced by a Judge - This is where the humanity and hopefully justice enters the legal equation - Sometimes a Judge may breath justice into the cold unemotional letter of the law - The Law applies to all equally. Majority and Minority---Rich and Poor etc\... - Can standard application of the law lead to injustice? - What is the relationship between law and justice? - "Justice and law, Mr. Du Toit, are often just\... well they\'re, I suppose they can be described as distant cousins. And here in South Africa, well, they\'re simply not on speaking terms at all." (From\-- A Dry White Season 1989) 8. **[LAW AND ETHICS]** - How do you get your ethics? - From parents, social interactions - They are not written - The sanction for breaking ethics, its social shame, being shaun - Ethic that crystallizes in time and becomes the law - Such as marijuana - Decriminalization (2015) to eventually become legal - **[Ethical standards will influence the law we have ]** 9. **[THE COURTS ]** 1. Court system in Quebec - Municipal courts-jurisdiction over violations of municipal by-laws, Criminal Code summary convictions offenses; - These courts do not hear civil cases. 2. Court of Quebec - Jurisdiction in matter are less than 85k - Appeal lies de plano (automatic) if more than 60K otherwise with permission - It is court of 1st instance Youth protect matters  - Serves as appellant court for the TAQ 3. Small Claims Court (part of C.Q) - - - 4. Superior Court (default court) - Over 85k - Superintending powers (review constitutionality or legality of other court's decisions - One judge hears case - Court of 1st instance. 5. Quebec Court of Appeal - Hears appeals from judgements of other courts - 3,5,7 judges hear the appeal - Decisions made by majority - No witnesses heard/only lawyers arguments; - Can maintain the decision, quash and replace or return to lower court. 6. Supreme Court of Canada - Final authority - Appeal by permission only - In Ottawa  **[PROFESSIONAL OF LAW]** - NOTARY - Sale of immovable ( transaction) - Will and estate - Taxes issues - Draws an hypothèque ( the only ones that could do this ) - Authentic contracts (must identify the parties interning the contract ) - Notary keeps the originals of that contract and parties are given a true contract - In court, the authenticity is presumed as the original copy is from the notary - VS a lawyer who has to prove the authenticity - LAWYERS - Only a lawyer can represent you in court - Both are mutually exclusive - You can only practice one profession at a a time - Only in Quebec do you have these two separate profession - JUDGES - 10 years of experiencing as a lawyer - You can then apply to be a judge - Process where all candidates are interviewed and a short list will be produced - The court of Quebec : the government of quebec appoints it - Superior Court / Appeal court : the federal government appoints - Once a judge is appointed, he is appointed for life - A judge has to be impartial and independent - If that were not the case ( be removed ) there could be a conflict - Would not be independent ,if I don't judge in favour of the government I could be removed - Impartial : no interest in the case that they are hearing - X v. Brother of the Judge - Refuse themselves off the case in case of an appearance of impartiality - COMMISSIONERS OF OATHS - Over 18 , good for 5 years - If you are a lawyer or a notary, your commission is good for life - Taking an affirmative oath / solomon of affirmation, sign the document - Is everything in this document that you will sign is true - As if you are taking an oath in court , its purgery if lying - Commissioners is not responsible for figuring out the truth, but only for insuring you sign the document 1. **[STRUCTURE : 1^ST^ ELEMENT OF THE QUEBEC LEGAL SYSTEM ]** - **SOVEREIGNTY** - **AUTHORITY** - **LEGISLATIVE PROCESS** - **CROWN REPRESENTATIVE** - **BRANCHES OF LAW** - The Rule of Law as a principle of legality---the notion that governments can do nothing except that which they are authorized to do by law, and individuals can do everything except that which they are expressly prohibited from doing by law" - What do you think Professor Scott's statement means? - Do you agree? - Is this a solid foundation on which to build a legal system? 1. **[SOVEREIGNTY]** - Power conferred on Nations of the world; - - - - - - 2. **[AUTHORITY TO ENACT LAWS]** - - 1492?-1701?-1867? 1982? or 2012? - - Each level of government is sovereign within its own exclusive jurisdiction assigned to it by the constitution. - For example only the federal government can legislate in the area of criminal law (criminal code applies throughout Canada) - - Divorce - Age of majority - Postal service - Interprovincial transport - Education - Labour relations - What happens if one level of governement attempts to legislate in an area which is within the exclusive authority of the other level of governement 3. **[THE PROCESS FOR MAKING LAWS (FEDERAL LEVEL)]** 1. House of Commons 2. Senate 3. Queen 4. 1st reading --introduction 5. 2nd reading debate (Committee) 6. 3rd reading (changes) 7. Then the bill goes to the Senate for three readings 8. Once approved it goes for Royal Assent 9. Once signed it is a law - In Quebec it is the same procedure only there is no Senate, only the National Assembly and the Queen - Queen's representative in Canada are the Governor General and the Lieutenant Governor. 1. **[LAW THE SECOND ELEMENT OF THE QUEBEC LEGAL SYSTEM]** 4. **[THE LAW AND SOURCES OF LAW]** - The Canadian Constitution; - Federal and Provincial Law - Case Law - Doctrine  - Custom - Administrative Regulations A. **[THE CANADIAN CONSTITUTION (CC) IS THE SUPREME LAW OF CANADA]** - S.91 and s.92 division of powers; - Entrenches a Charter of Rights and Freedoms; - All law which are contrary to the Constitution may be declared null and without effect. B. **[STATUTORY LAW:]** - Easier to create or amend than the CC;(need a law to amend a law) - Deals with one subject matter; - Unlike a "Code" which deals with many different subjects in one law. C. **[CASE LAW-JURISPRUDENCE]** - These are court decision which interpret and apply of law. - Application of law should be uniform, thus consideration of previously decided cases is essential to a stable legal system (predictability) - In civil law the court considers previous judgments in the interest of conformity (not required to follow) - In common we have ***stare decisis*** lower courts are bound by higher court decisions. D. **[DOCTRINE]**: - Scholarly works, books and articles of legal experts (lawyers, notaries, judges, law professors); - Cited in court to help convince the Judge of the proper interpretation on a given legal subject. E. **[CUSTOM]** - Standard practice in a given industry. F. **[ADMINISTRATIVE REGULATIONS]** - Law can provide that a particular body described in the law has the authority to make regulations under the law. - These regulations have force of law. - Example. Minimum wage. 2. **[3^RD^ ELEMENT ADMINISTRATION AND ENFORCEMENT ]** - In Ottawa  - Judges and 3 which are from Quebec 7. Federal Courts - To hear matters pertaining to Federal law - Small claims court - - - - Cross examination of both parties - The absolute truth can not be known : the judge are only interested in what can you prove - Who's story is more likely to have happened : the - The scale of justice : the défendent has to move the scale slightly more probable - Poundance of the evidence - Beyond reasonable doubt - Once you get a judgement, you can go to the court of appeal - The purpose is NOT to find facts - Only to see if 1) misinterpreted the facts 2) misapplied the law - Appellant and respondent - If the amount is over 60k, you are in - If under, we have to ask for permission 5. **[THE LEGAL PROFESSION]** - Judges - Lawyer - Notaries - Notarial system authentic acts - en minute - en brevet - Commissioner of Oaths - Legal Aid SOURCE OF THE LAW - First : the keystone of law : the Constitution - Any ordinary law that goes against the Constitution will be struck down - Second source of law : statutory law - Civil code : its put together and deals with various topics such as various kinds contract ( sale, mortgages, loan ) - Statutory law : consumer protection act - Deals with one thing - Third source of law : jurisprudence - A judge can look at what other judges have decided in a previous case - Fourth source of law : doctrine - A judge has to decide on a case that does not have lots of reference - Doctrine is a document written by professional - Legal essay about what that author thinks on this topic - Customs - Agriculture law : not a lot written on agriculture law - Farmer wanted to get cows pregnant and paid 5000\$ to get them pregnant - Bull does his thing but not one of the cows gets pregnant ( was a dud) - There's no case law, no doctrine so he gets an expert in agriculture and gets info - What do you usually do in between you guys ? ( the custom ) - Based on the custom, the judge will follow this to rule - Customary practices - Regulations - Difference between law and regulation : how they are passed / in force - Law has to go in front of the national assembly - 1. **[CHARTER --- PRELIMINARY NOTIONS]** Why both a Canadian Charter and a Quebec Charter? When is the Canadian Charter applied and when is the Quebec Charter applied? What is the difference between the Charters? What is the purpose of a Charter? The Charter has "special status or quasi-constitutional". Effect of Charter on Statutory Law. Rights and Freedoms are protected but are not absolute. Individual rights and freedoms must be balanced with societal or collective rights. Recourse and remedy for infringement (art.49) - Canadian Charter is entrenched - Anything that goes against the Constituion is struck down - Quebec Charter of rights vs Canadian Charter - It protects us from the government - This charter protects you as an individual against gov - Quebec charter of rights - Every province has their own charter of rights - The Canadian charter is from rights suspended / restricted by the government - THE SQ discriminating you ( is a federal agency ) a government entity / agency , the Canadian charter will not apply - The Quebec charter is from individuals - I want to rent a appartement , you're green I don't rent to green - The Canadian charter will not apply - Quebec charter applies to government and private dispute - Your rights in both charter are not absolute - All your rights and freedoms are not absolute - **[Two ways that the government can suspend]** 1. **Section 33 --- the notwithstanding clause** - The effects of using the notwithstanding clause override the rights and you can not go to court - Laïcité in québec - If you are in government function ( teaching ) , you may not display any symbol of religion - Sunset clause : 5 years in effect - Section 2, 7 to 15 - 2. **Oakes test** - Supreme Court - Applies to all sections - Marijuana was illegal and his quantity was presumed to be trafficking - Reverse the presumption of innocence (reverse onus) - Goes against his right to be presumed innocence - They have to prove 3 things to pass a legislation - Substantial / important objective for government and society - Measure rationally connected to the laws purpose - Minimal impaired , proportional affect - Mr Oakes won , controlled act was reversed and determined unconstitutional 2. **[THE QUEBEC CHARTER OF HUMAN RIGHTS AND FREEDOM]** - Statutory law - Judge in Quebec would interpret this as « supreme law » on quebec - Its called \_\_\_\_\_\_\_ **[ARTICLE 1]** ***Every human being has a right to life, and to personal security, inviolability and freedom.He also possesses juridical personality.*** - THE MOST IMPORTANT RIGHT - When do we become a human being ? - The precise moment is at birth : born viable ( first breath ) - When do we cease to be a human being? - Until you are DECLARED dead **[ARTICLE 2]** ***Every human being whose life is in peril has a right to assistance.*** ***Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.*** - The right vests in a human being.\` - The obligation to come to the aid vests in a person. - Is there a difference between a "human being" and a "person"? - How does a person fulfil the obligation "to come to the aid"? - Are there any exceptions to this obligation? **[ARTICLE 3]** ***Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion , freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association*** ***Every person has the right to live in French or the extent provided for the in the Charter of the French language.*** - Freedom to associate with other people - Freedom to assemble peacefully - The freedoms mentioned in art.3 are not absolute and they must be exercised with due regard to collective rights (see art.9.1). - The list of freedoms is not exhaustive, other rights can be included that are no written, such as the right to MAID **[ARTICLE 4]** ***Every person has a right to the safeguard of his dignity, honour and reputation.*** - Actions for defamation  - Examples in business context? **[ARTICLE 5]** ***Every person has a right to respect for his private life.*** - Greatest expectation of privacy : a home - Reasonable expectations in the car lessen ( plain sight view ) - In your office, reasonable expectations of privacy is even lesser to your purse - Concept of reasonable expectation of privacy. - Can an employer view emails and other documents on their employees work computer? **[ARTICLE 6]** ***Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.*** - What are some of the common exceptions to this rule? - Criminal code : prohibits cruelty to all animals - If a municipal law prohibit you to change something in your house / backyard, this law is applicable ( must respect the exception ) **[ARTICLE 7 ]** ***A person's home is inviolable.*** - "A man's home is his castle" - Application of this rule in society - If you let officers come in into your house (consent), its too late if there is incriminating evidence **[ARTICLE 8 ]** ***No one may enter upon the property of another or take anything therefrom without his express or implied consent.*** - What is the difference between art. 7 and this article? - What is the effect of placing garbage at the curb? - Placing the garbage in the middle of the street - Whats in the middle of the street is now public property and anyone can have it - It's everybody's garbage (bills, prescriptions, tax papers, visa card, DNA) **[ARTICLE 9 ]** ***Every person has a right to non-disclosure of confidential information.*** ***No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized *** - What is "confidential information"? - Who are people who are "bound by professional secrecy"? - Professions : teachers, notary, lawyers - Why do rules related to professional secrecy exist? What is the purpose? - Examples of exceptions to the rule. - Unless you are released from the person who gave you the secret gives permission - If a professional releases the secret, you could be sued or face repercussions from the board ( medical, lawyer ) **[ARTICLE 9.1 ]** ***In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.*** ***In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.*** - What is "public order"? - How do we know something is a matter of "public order"? - What is the purpose of article 9.1? - **[Balance individual rights and collective rights ]** - The concept of "reasonable accommodation" and "undue hardship" - The Singh Multani and the SyndicatNorthcrest vs Amselem cases - Equivalent in the Canadian : charter 1 **[ARTICLE 10 ]** Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on **race**, **colour**, **sex, gender identity or expression, pregnancy, sexual orientation, civil status, age** except as **provided by law**, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the  - **[Starting article 10 : is how to applicate the rights ]** - **[The list is not exhaustive ( more included )]** according to JP vs others argue that since there is no « such as » - **[In 2016]** : gender identity or expression added in due to a court case Top 5 traits of women : Top 5 traits of men : - Funny Stubborn - Ambitious Impulsive - Scary Basic / random - Emotional Liars - Crazy Narcissist - These are all stereotypes by gender : we all do this (human nature) - This is discrimination ---\> the halo effect : tend to judge people positively who are like us and judge opposite people negatively - We naturally ,by instinct discriminate - **[Discrimination]** is based on **[FEAR]** - According to JP, we LEARNED not to discriminate - To be discriminate (according to article 10) - Not letting a customer in because of the service dog : not discriminating because you need the service dog, but rather discriminating the mean used to overcome the handicap 2. **[PROHIBITED DISCRIMINATION (ARTICLE 10 TO 20 AND ARTICLE 49)]** - The list contained at art.10 is not exhaustive there may be other categories of prohibited discrimination.  - The right to be free from discrimination is not absolute, we will discuss some exceptions shortly - Review the categories of prohibited discrimination. Do you have any questions?  - What do these categories have in common?  - Can you think of a category which is not mentioned but should be? **[ARTICLE 10.1]** No one may **harass** a **person** on the **basis** of any **ground mentioned in section 10.** - This is an extension of the rights was provided for in 10; this was an afterthought - Why is it need and what is the effect? - Gay individual gets hired ( not discriminated ) but gets nagged : against this article **[ARTICLE 11 ]** No one may **distribute**, **publish** or **publicly exhibit a notice, symbol or sign** involving **discrimination**, or authorize anyone to do so. - The letter « A » : could mean a grade, could be anarchy, avalanche - Could mean lots of things until you have a context --- symbol with a context - To know what it means, you need a context - When a symbol is in context, it can be discriminating **[ARTICLE 12]** No one may, through **discrimination**, refuse to make a **juridical act** concerning **goods or services** ordinarily **offered to the public.** - Merchant refusing to contract based of a prohibited category (art. 10) - Refusing to sell you a computer because « you are green » : this article prohibits this **[ARTICLE 13]** No one may in a **juridical act** stipulate a **clause** involving **discrimination**. Such a clause is without effect. - Cannot include as a condition of employment for employer to discriminate. - Hire Lucas as a salesman ---\> he can not sell to green people clause 3, but he still does and ends up being taken to court for selling to green people - The clause is automatically nul since its against the Charter - Deemed without effect - Marijuana / vote / alcohol : **discrimination** based on age that is allowed by law (article 10) **[ARTICLE 14 ( NOT TO STUDY FOR THE EXAM) ]** The **prohibitions** contemplated in **sections 12 and 13** do not apply to the person who leases a room situated in a dwelling if the lessor or his family resides in such dwelling, leases only one room and does not advertise the room for lease by a notice or any other public means of solicitation. - Extremely limited in scope - If you are leasing one room in the house in which you leave, you can discriminate (cause it's your home) ---very narrow exceptions **[ARTICLE 15]** No one may, through **discrimination**, inhibit the access of another to **public transportation or a public place,** such as a **commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground** or **trailer park,** or **his obtaining the goods** and **services available there**. - This came in 1975 : since then, every public building build since them must have a wheelchair ramp - The law does have not retroactive repercussions - If you turn someone away (homeless) from a restaurant , it is a discrimination - Could be justified by health or economical hardship - The burden of proof is not on the person that discriminate - If you chase away a homeless person from the park, they have to justify why they did - Discrimination is sometimes allowed, as long as they fall out of article 10 - If it falls in 10, it can be justified (security of the public for the homeless in park) **[ARTICLE 16]** - No one may practise **discrimination** in respect of the **hiring, apprenticeship , duration of probationary period, vocational training, promotion, transfer displacement, laying off, suspension , dismissal or conditions of employment** of a person or in the establishment of categories of classes of employment - Probationary period for 6 months to see if you're a good worker - Highly skilled job can require 6 months of probation - General entry job is 3 months **[ARTICLE 17]** - No one may **practise** **discrimination** in respect of the **admission, enjoyment of benefits, suspension or expulsion of a person** to , of or from an **association of employers** or employees or any profession order or **association of persons carrying on the same occupation** **[ARTICLE 18]** - No employment bureau may practise discrimination in respect of the reception, classification or processing of a job application or in any documents intended for submitting an application to a prospective employer **[ARTICLE 18.1 ]** **No one** may, in an **employment application form or employment interview,** require a **person to give information** regarding any **ground** mentioned in **section 10** **[unless]** the **information** is useful for the application of **section 20** or the **implementation** of an **[affirmative action program]** in existence at the time of the application - This is the **[EXCEPTION TO THE RULE]** (related to art.20) - There are three exceptions to the rule (3 contained in 20, 1 in 18.1) - SO THE FIRST EXCEPTION - **[EXCEPTIONS]** 1. Based on **aptitude** or **qualification** (**BFOR**)  - JP at WonderBra , getting 500\$ for the photoshoot , which don't take him because of discrimination (gender in article 10) so he takes them to court - They have to prove the **Bona Fide Occupational Requirement** - This discrimination is ok when they prove BFOR - BC forest-fighter case - Female forest-fighter who fights it in the forest , every year she is evaluated and it's fine --- the 5^th^ year, they had a physical test where all employees have to past this test - They have to run 5 mile , 50 pounds in an hour, the female fails it - She sued, to argue she was discriminated on article 10 - She was discriminate against because a female lung capacity is less than a man's : she did prove it was a test discriminating against woman, now the burden of proof goes on the FireFighter Board - Had to explained **BFOR** (**B**ona **F**ide **O**ccupational **R**equirement) 1. The **standards** has to be implemented with a **legitimate objective** --- in this case, to prevent unsafe workers - Safety in the workplace is a legitimate objective 2. The test must have been done in **good faith ---** bad faith would be to select a test knowing only a single person would fail the test 3. The employer has to prove that this **test proves the objective** (correlation between the test and the objectives) - Just because she can't pass this test, it does not mean she is not competent (have to look at her experience) - **[RESULT]** : this test is not a **BFOR** - This case is a good example of systemic, unintentional 2. SECOND EXCEPTION : - Elementary school : religious ( I answer protestant but they only want catholic) - I am refused --- this is ground of discrimination based on article 10 - School has to justify why they want my religion - Burden of proof is now on the school board 3. THIRD EXCEPTION - An institution devoted exclusively to the well-being of an ethnic group (ART.20) - Ethnicity : shared by a geographical region / a language / culture - Such as Italians form an ethnicity 4. FOURTH EXCEPTION - Soft quota - If I have two candidates who are exactly the same, one is from majority / one from the minority : I will chose the minority - Choosing from two candidates who are THE SAME - Hard quota is filling a quota - Final level of affirmative actions - Statistics on gender in police force - Globally : 45% of police is female, 55% is male - America : 40% female, 60% is male - MTL : 20% female, 80% is men - This shows female are underrepresented - Next year they will hire 100 police, 60 of them must be female (raise the number of female officers) - 60 of them will be hired - The 100^th^ candidate applying male scored better but still missing one female, even if her scores are less good than male - This result in a reverse discrimination on men - Once you overcome the manifestation balance / the great difference , it has to end - Voluntary , seeking a balance, and its temporary : the affirmation actions program is legal and the discriminate police offers has no case - It's not as much about a time frame, its about fixing the issue to get to equal opportunity - Four exception - A BFOR justified by \_\_\_ - Exclusive benefits of an ethnic group - An affirmative action program **[ARTICLE 18.2]** - No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence. Therrien case **[ARTICLE 19]** - Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place. - A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel. - Adjustments in compensation and a pay equity plan are deemed not to discriminate on the basis of gender if they are established in accordance with the Pay Equity Act (chapter E-12.001). **[ARTICLE 20 ]** A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment or justified by the charitable philanthropic religious political or educational nature of a non-profit institution or of an institution : devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory **[ARTICLE 49. ]** - Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. - In case of unlawful and intentional interference, the tribunal may in - Non-intentional infringement so adverse effect discrimination or indirect discrimination: - Compensatory damages - Injunction - Intentional or direct discrimination: - Compensatory damages - Injunction - Punitive or exemplary damages. 3. **[CASES]** **[MULTANI VS COMMISSION SCOLAIRE (SCC)]** **[MEIORIN CASE (BFOR)]** **[THERRIEN CASE (ART 18.2)]** **[SYNDICAT NORTHCREST V AMSELEM (ART.9.1)]** **[R V KAPP (AAP) S.15 CAN CHARTER]** Here is how to summarize the case Faces are moving Moodle you have the interval case the whole day I suggest you read the summary in the book you don\'t understand the summary in the door go to the forecast you do understand it involved to move on so this is how lawyers generally summarize cases K St. We do this so that we can easily remember some so much memorized or remember important facts in case outcome why we do that because like this often ask us can you tell us what this court cases about if you haven\'t read it so we\'ve got these little this will help this will help you if you hang right this will not help you if you put it in your computer and type for some strange psychological reason if we handwrite something we remember it seven times then it\'s likely reading always type maybe one day when the cars into typing I suggest you handwriting last time here on the road first simple their title basically means the names of the people in this case the party and also the court level you\'re dealing with are you at the Superior Court are you at the pet so because he blows.39 they calling me his marriage they randomly drug test and they find in her blood HD break I\'m told this is the active ingredient in marijuana that makes you high so she\'s an idiot they both took my class so they sue what does let\'s start with Mr. alcohol have to do this should be getting the second nature dynamic what does Mr. alcohol scooter exactly discriminated based on something intent is go back to 10 why is he discriminated against based on something intent No yes H drug or alcohol abuse testing receiving the employer test that\'s a handicap s so Mr. alcohol and actual or perceived drug and alcohol abuse employer has to prove before let\'s go through the before is there a legitimate objective for testing before they go to work here what is it if there are fairly normal why is that in Arabic what about the job yeah what is it testing for really what is their objectives underlying objectives yes is awareness awareness but why yes or factoring environment right do are you gonna be safe in the workplace or you going to Montreal safety in the workplace is that an employer\'s legitimate insurance yes absolutely they have an altercation under the Civil Code as well was that test that random alcohol test was it dining does that test the breathalyzer test does it prove that Mister alcohol is impaired so even though it was discriminating against it was invented by dictation requirement is the alcohol have loses his job now let\'s do the same thing for miss Mary J the same sort of thing I said actual or perceived drop more alcohol abuse design so the same thing for marriages same legitimate objectives passed in good faith does that blood test proved that miss Mary day is impaired yes yes way past the point of view still being high it can stay in bloodstream I guess up to about 30 days right now now if miss Mary Jane case drive 30 days ago would she still be high if she was at some really good shit you see that this blood test is not proving she\'s impaired at that point yeah to protect people who like let\'s say you smell like me it\'s therefore when you\'re testing you find something is perceived so protective more ways around this about more contacts in my talking about last sentence I don\'t get that deep into driving alcohol drinks create I\'m just trying to give an example of when you can prove a bonafide activation requirement when you can\'t I mean this this whole area of wall where I\'m surrounded broadcast complex we can\'t have any of this in your bloodstream ever and they don\'t really care how it got into so are we good with this his first exception to the rule of discrimination before the bonafide occupational requirement to learn more read after read it anyways on the exam 50 mount forest let\'s now we\'re going to take that second exception that **[SEPTEMBER 30^TH^ ]** **[4 EXCEPTIONS FOR DISCRIMINATION ]** - BFOR - Test for BONA FIDE - If that form of discrimination can be justified by the nature of non profit - If the organization is exclusively devoted to an ethnic group --- deemed non discriminatory - Affirmative actions program ---------------------------------**[PROHIBITED DISCRIMINATION]**------------------------------------ **[ARTICLE 18.2]** **No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence. *Therrien case*** - Criminal offence against the criminal code of Canada (assault, robbery, under) - If you ARE convicted, after you served your sentence completely (even the probation is part of the sentence), you can ask for a **pardon 10 years** later to **national parole board**, the RCMP who does a background check - If crime is pardonable, and have not been re convinced, parole will be given to you - If you get a pardon, it does not erase the crime, nothing will ever change the fact that you committed the crime - The pardon makes your file SEALED to the public ( it can not be looked at by the public ) and we can not use this in the future to discriminate you in employment - **If you don't have a pardon** --- "If the offence no way connected with the employment" - If you are employed as a bus driver, and are convicted of DUI, you can be terminated - If you are employed as a receptionist and are convicted of DUI, you can NOT be terminated the employment as they are NOT related to **[ARTICLE 19]** **Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place.** **A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel.** **Adjustments in compensation and a pay equity plan are deemed not to discriminate on the basis of gender if they are established in accordance with the Pay Equity Act (chapter E-12.001).** - Equal wages for **men** and **women** - **Pay Equity Act** enforces this provision of the Charter - A difference of pay is fine **IF its based on one of those exceptions** **[ARTICLE 20 ]** A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment or justified by the charitable philanthropic religious political or educational nature of a non-profit institution or of an institution : devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory **[ARTICLE 21]** **Every person has a right of petition to the National Assembly for the redress of grievances** **[ARTICLE 49. ]** **Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.** **In case of unlawful and intentional interference, the tribunal may in addition condemn the person guilty of it to punitive damages** - Article 49 is the RECOURSE, what you can ask for as remedy when they are infringed - **[What type of discrimination am I dealing with ? ]** 1. **[UNINTENTIONAL]** : Systemic / Indirect / Adverse Affect - We can ask for the **DISCRIMINATION CEASE** - We can ask or **COMPENSATORY DAMAGES** ( **MORAL** AND **MATERIAL** ( patrimony ) - Patrimony : all your assets minus \_\_\_\_\_\_\_\_\_ - Caused material and moral damage affect your patrimony, you get the exact same amount you lost - They try to put a dollar on stress / anxiety - The goal here is to make you WHOLE again, no more no less - Female firefighters --- got her pay back and be rehired - Usually done thru an injunction ( a court order to do and stop doing something ) 2. **[INTENTIONAL]** : Direct discrimination - Ask the **DISCRIMINATION CEASE** - Ask for **COMPENSATORY** **DAMAGES** ( **MORAL** AND **MATERIAL** ) - Ask for **PUNITIVE DAMAGE** - Goal is to punish the wrong doer and dismay other people of doing what he did - Judge looks at : - How bad was the infringement , the severity upon a person's right and freedom - The wrong doer's patrimony - The poor student and the rich multinational will not be fined the same amount - Is he a recurrent offender - Punitive damage only be **awarded IF there's LAW that provides for it** - The civil code does not provide for punitive damages - Punitive damage usually go to the victim - Sometimes to the government **[MULTANI AT THE SUPREME COURT]** - Both parties were arguing 9.1 of the Quebec Charter - The equivalent in the Canadian Charter is article 1 - Quebec Court of Appeal said we are not ACCOMODATING anybody - Not saying you cant practice your relation, just can't do it in a public institutions - Mr. Singh appeals to the SCC, who has to answer the same question on freedom of religion, security of the collective --- is there a reasonable accommodation? - If there is a reasonable accommodation, on what basis? - SCC decides that he can bring the kirpan to school in a pouch - Reinstated the Superior Court judgement and reversed the Court of Appeal judgment - How did the SCC get to the reasonable accommodation? - There has never been an incident involving a kirpan at school - SCC takes away the argument about under hardship (key point) - This is NOT undue hardship - Based on the Canadian Constitution , multiculturalism is important - Fundamental principles, calls for tolerance - Multiculturalism we take the best for every culture / ethnicity - Fundamental principle of being Canadians - We must tolerate and accommodate - There are things which we can not accommodate for them , undue hardship - Yes we can accommodate on the principles of multicuralism - There are cases, there is a couple of places we can not accommodate, for obvious safety reason, in a court room - Quebec eventually came out with the Laicity Act, and included the notwithstanding clause **[MEIORIN CASE]** - Female force fighter case - Set up the precedent for BFOR - The court makes no discrimination for intentional and unintentional discrimination - Are there any accommodation measures? **[THERRIEN CASE (ART 18.2)]** - Judge were appointed for life, the only way they are removed, is to go to canadian judicial council will form, and they are the judge's judge - If the behaviour is so bad we have to remove them - Justice Therrien --- Supreme Court Level - He failed to disclose his criminal record, regarding the FLQ - Militant wing of a political party who wanted to separate from Canada - Illegal manner --- october crisis, the british ambassador and federal transport minister , LaPorte - Mr. Cross ambassador and Mr Laporte was killed - Everything fell apart, this was not an intentional thing claimed the FLQ - Mr Therrien, not a member of the FLQ but hosted his sister, who was a member of the FLQ, while he was a law student - His appartement gets raided with several members of the FLQ - Charged with aiding and abetting - Gets a sentence of one year, serves his time - Once he gets out, he gets his law degree and becomes criminal lawyer - He applies and gets a pardon and applies to become a judge - Side note : you can not become a lawyer if you have a criminal record, but does they an exception - While he becomes a judge, somebody comes forward with the fact he has a criminal record - Therrien claims he was in an employment interview, you can not ask me anything in 10, the question is illegal - There is no classification for a criminal qualification - The question is legal , it is not clearly stated there but Therrien argues it should be in there - Therrien says I was clean and pure after the pardon, you are convinced of the crime , saying no was dishonest - 18.2 article --- "penalizes a person in his employment owing to the mere fact that he was convinced of a penal or criminal offence" - However, judges are APPOINTED rather than employed - Yes they get paid, but you are appointed - Even if you would be EMPLOYMENT, you would be excluded since it's connected to your employment - The purpose of a pardon : to protect you in employment **[SYNDICAT NORTHCREST V AMSELEM (ART.9.1)]** - Condominium --- you buy a private fortune of this condo ( called a unit ) - Balcony is common area but private exclusive use - The syndicat / condo association ( is a person ) and has to manage all the common area to make rules and regulations - Mr. Amselem --- orthodox jew who has to build a temporary structure on the balcony 9 days / year --- practice of religion freedom - The people of the association say "he can't do that" , trying to accommodate Mr. Amselem and build a communal sukah in the garden - Syndicat does not want it on the balcony because it is ugly and brings down property value - Could be a safety concern for fire / security reason - Every person who buys a unit --- they sign a declaration of co ownership - What does it take to ground a case in religion case ? - They have to prove true honest real genuine good faith beliefs in the religion - Once done, he has grounded his case in religious beliefs - The syndicat says we offer a communal, the court says " we will not tell you how to practice, its up to you religious authority, we will not legislate how you practice" - 5 judge (the majority) , 3 judge (the minority) and 1 judge (dissenting) - The majority ( given by Justice Fish) addressed the 3 issues - The eye sore can be accommodated for the 9 days / year - The safety concern --- lower courts did not raise this argument , you would have to claim in in the lower courts - Declaration of Co Ownership - The clause says "we wont alter the structure" but he is altering the structure - Can he give up his fundamental rights ? - He says I am not deciding if we can give up a fundamental right to freedom, but if you could, the waiver would have to be explicit, you have to know what you are giving up, for how long, and when. - By signing this declaration, you would have to sign a clause stating " I give up my right to build a suka, anytime, anywhere" - Therefore, this waver was not exclusive, and Mr.Amslem was allowed to build in **[R V KAPP (AAP) S.15 CAN CHARTER]** OK different meaning for younger generation so I\'m saying R versus captain everybody started so this is this is this is our verse account talking about Canadian wander around 2:50 OK so this is this is what those are I\'m just making updates principle is clean what I\'m saying right \'cause I don\'t think these things anymore 30th of eight 30th so we\'re in DC the BC fishery so if you want to go fishing in BC of course you need a license right and their seasons where you can fish Oregon fishing or other salmon BC government how to season on Sam the season opens on the 30th of April of every year and it goes let\'s say to the 1st of September then it closes you can\'t hear Shannon the government wants to help First Nations NBC they want to allow First Nations people in BC to go fishing for themselves and their communities one day before the season open so that would be the 29th of April First Nations on the 29th of April if you\'re First Nation for yourself and your community then the very next day the fishery open standard First Nation and non fruit start the setup so we got Mr. cat he is a non person nation person you\'re not part of the First Nations he looks at this and you goes something wrong no how come First Nations people get an extra day before us it\'s based on race and can\'t do that so he\'s very upset for letting gods is like on the 28th and forms out the game or come down to the river I\'m going fishing it wants to do is get fined so they can go to court invest right and say listen you discriminated against me I wasn\'t allowed to find me even find anyone else this is not good I\'m not impersonation is the first this row nation so that\'s what he does next morning everything\'s all cordial and everything he goes down to the fishing boat throws in his ward and again more he\'s there as angels find you that\'s what happens fishing legally and he goes to good what does the court have to decide forecasted decide is this preference legal this is a preference the preference is descriminatory towards non First Nations people it is given a preference based on race Mr. caps says while you\'ve given the present based on race can\'t do that start screen really set up a program to prefer historically discriminated against groups in this case First Nations the First Nations of Canada have been discriminant so in order to the level playing field government is allowed to set up further proof that the group has been historically terminated against may even though it is discrimination it\'s valid - Mr Kapp, even tho he was discriminated against, - Section 15 (2) - Once a group proved they have been historically discriminated against - Try to enhance their ability to feed themselves