Business Law in Canada, 6e

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Business Law in Canada, 6/e
Chapter 1 Introduction to the Legal System
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What Is Law?

• Difficult to come up with a definition for law
• Definition is affected by
• History
• Theory
• Legal System in Place
• Social Realities

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Philosophical Basis of Law
LAW IS
Natural Law Theory

• What God Says It Is
• Based on Morals

Legal Positivism
Legal Realism

• What the Ruler Says It Is

• What the Courts Say It Is

• No Moral Basis

• Social Moral Values

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Definition of Law

• Law is the body of rules which can be enforced
  by the courts or other government agencies

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Functions of Laws

• Substantive Law
• The rules that govern behaviour and set limits on
  conduct
• Procedural Law
• How rights and obligations are enforced

Continued ...
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Functions of Laws/2

• Public Law
• Regulates our relationship with government
• Private Law
• Regulates personal, social and business
  relationships

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Origins of the Law

• Civil Law
• Roman Law-Justinian
• Codified
• Modified by Napoleon
• Used in Europe and most developing countries
• Quebecs legal system is based on the French
  Civil Code

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Origins of the Law/2

• Common Law
• Great Britain and Commonwealth
• Judge-Made Law
• Developed in the courts
• Based on precedent or stare decisis
• judges are bound by previous decisions of higher
  courts

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Sources of Law

• Common Law
• the precedent-making decisions of the courts of
  Great Britain
• Law of Equity
• decisions made by Court of Chancery
• Statutes
• Laws created by legislative bodies

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Statute Law

• Statute Law Legislation overrides common law or
  judge-made law
• Often summarizes or modifies common law. For
  example
• Criminal Code
• Trespass Act
• Includes government regulations

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The Law in Canada

• Constitution Act (1867)
• Statute of Westminster (1931)
• Constitution Act (1982)
• The Canadian Charter of Rights and Freedoms

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Conventions

• Canada inherited certain conventions or
  traditions from Britain
• For example
• Democratic parliamentary system
• Rule of law
• Principles established in the Magna Carta and the
  English Bill of Rights

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Constitution Act (1867)

• Formerly known as British North America Act
• Sections 91 and 92 divide powers between federal
  and provincial governments
• Structure of the judicial system

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Question for Discussion

• Canadas constitutional structure is essentially
  different from Britains because it consists of
  the federal government and ten provincial
  governments each with power to act in their own
  jurisdiction. What impact does this have on
  businesses operating within and between provinces?

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Human Rights Legislation

• Traditionally common law and custom protected
  human rights and individual freedoms
• Provincial and federal legislation now protects
  individuals against human rights violations in
  social and private relationships
• Canadian Bill of Rights attempted to protect
  individuals from abuses by government

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Constitution Act (1982)           

• Lists government enactments having constitutional
  status
• cut ties with England
• entrenched Charter of Rights and Freedoms
• places some limitations on the supremacy of
  parliament

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Charter of Rights and Freedoms

• Entrenches individual rights
• Protects individuals from infringement on their
  rights by governments or their agents

Continued ...
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Charter of Rights and Freedoms/2

• Limitations on Charter rights
• Section 1 - interference with right must be
  justifiable in a free and democratic society
• Section 32(1) b limits rights to relations
  between an individual and government
• Section 33 - legislatures can pass acts that
  infringe on rights notwithstanding the Charter
  but legislation must be reviewed every 5 years

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Personal Freedoms
Democratic Rights
Mobility Rights
Legal Rights
Equality Rights
Language Rights
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Question for Discussion

• Consider the principle of supremacy of parliament
  and the limitations placed on parliament by the
  Charter of Rights and Freedoms.
• Is it appropriate for the courts to have the
  power to declare some legislation invalid?