Chapter 1

1
Chapter 1 Canadian Legal System

• What is the Law?
• Sources of Law
• The Court System
• Civil v. Common Law
• Litigation

2
What is the law?

• a set of rules which are generally obeyed and
  enforced within a politically organized society
• Positive law
• Natural law
• Legal realism

3
Why have LAW?

• Protection and order
• Resolve disputes
• Individuals v. individuals
• Individuals v. Government
• Enforce standards
• Professionals, business, consumers

4
Divisions of the law

• Procedural law (rules and procedures)
• E.g., law of evidence
• Substantive law (rights and remedies)
• Public Law
• Constitutional
• Criminal
• Administrative

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Substantive Law contd

• Substantive Law
• Private or Civil Law
• Contract
• Commercial, e.g., debtor/creditor
• Property
• Tort
• Family
• Labour

6
Sources of Canadian Law

• Royal Prerogatives
• Legislative Enactments
• The Canadian Constitution
• Constitution Act (1982)
• Sec. 91 (Federal powers P.O.G.G.)
• Sec. 92 (Provincial powers)
• Charter of Rights and Freedoms
• Statutes, Regulations, Orders-in Council
• Quebec Civil Code

7
Sources of Canadian Law (contd)

• Delegated Lawmaking
• Municipalities
• Administrative Boards
• Judge-made Law
• Common law in Common-law courts
• Equity law
• Stare Decisis
• Legal precedent if a higher court ruling
• Or may be distinguished based on facts
• Otherwise persuasive

8
Court System

• Federal Courts
• Supreme Court of Canada
• Last resort, not automatic
• Federal Court of Canada
• Limited jurisdictions
• Intellectual property, tax, Fed. Admin. Boards,
  etc
• Federal boards, commissions and tribunals
• Case Rideau Cruise Ships v. Canada

9
Court system contd

• Provincial Courts
• Superior courts trial and appeal courts
• Lower Provincial courts specialized
• Provincial boards, commissions and tribunals

10
Civil Dispute Process

• Pre Trial
• Writ of Summons
• Appearance
• Claim counter claim
• Discovery
• Payment into Court
• Mandatory mediation if minor matter settle out
  of court

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Civil Dispute Process contd

• Trial
• Onus on the plaintiff
• Plaintiff, then Defendant
• Cross examination
• Judgment
• Jury determines facts judge determines law

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Civil Dispute Process contd

• Judgment
• Jury determines facts judge determines law
• Decision and costs
• Remedies
• Damages () general, specific, punitive
• Accounting (profit), injunction, specific
  performance

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Civil Dispute Process contd

• Enforcement
• Examination
• Assets or income ?
• Limitation period

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Alternative Dispute Resolution

• Negotiation
• Mediation or conciliation
• Arbitration binding may be required by
  contract

15
Alternative Dispute Resolution

• Advantages
• Control, lower cost, private, goodwill,
  flexibility, less formal
• Disadvantages
• Not full disclosure, fairness?, no precedents,
  enforceability, no record, public served?

16
Sources of Canadian Law

• Cases
• Ontario v. Pembina Exploration
• Blainey v. Ontario Hockey Association
• Kanigan v. Castlegar Minor Hockey Association
• R. v. Maki criminal case
• Chamberlain v. Fleming et. al.

17
Sources of Canadian Law

• Ontario v. Pembina Exploration
• Constitutional issue
• A fisherman lost a net snared on an unmarked gas
  pipe in Lake Erie. He took Pembina to Small
  Claims Court (Provincial).
• Pembina defended a Federal matter Sec. 91 (10
  Navigation 12 Inland Fisheries).
• Sec. 92 (12 provinces administer justice
  civil and criminal matters).
• Was Small Claims the correct court?

18
Sources of Canadian Law

• Blainey v. Ontario Hockey Association
• Role of the Supreme Court of Canada
• Justine Blainey wanted to play boys hockey OHA
  refused
• Ont. Human Rights tribunal ruled discrimination
  was acceptable.
• Was the Charter of Rights violated?

19
Sources of Canadian Law

• Kanigan v. Castlegar Minor Hockey Association
• Kanigan, aged 13, wanted to play in an older
  league CMHA believe it was in Kanigans best
  interest not to move up
• Kanigan claimed violation of the Cdn. Human
  Rights Act and the Charter.
• Does the Charter apply?
• Is this discrimination?

20
Sources of Canadian Law

• Criminal Cases
• R. v. Maki
• R. v. Green
• Maki and Green in a fight, each caused harm to
  the other. BOTH charged by the police.
• What is the defense of each?

21
Sources of Canadian Law

• Which way to go?
• Fact as a restaurant owner you, and your cook,
  see your waitress taking cash from the til.
• You know she has a previous drug conviction.
• What are your options?

22
Sources of Canadian Law

• Case Chamberlain v. Fleming et. al.
• Motor boat canoe accident
• Motor boat driver did not own the boat,
• Canoeist, who was not wearing a life jacket and
  was a non-swimmer, drowned
• Issues?
• Negligence? Defense?
• Who is liable?
• Federal (Shipping Act) or Provincial?
• Remedies?