Yates, Bereznicki-Korol, Clarke Business Law in Canada, Tenth Edition

Chapter 2: Introduction to the Legal System

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Chapter Objectives
When you complete Chapter 2, you should be able to:
Distinguish between common law and civil law Identify the sources of Canadian law Identify the three elements of Canadas Constitution
continued
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Chapter Objectives, continued

Explain how legislative power is divided in the Constitution Detail how legislation is created in the parliamentary system Describe the rights and freedoms protected by the Charter of Rights and Freedoms

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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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Definition of Law for this Course

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

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Categories of Law
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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Categories of Law, continued

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

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Civil Law Legal System

Roman Law - Justinian Codified Modified by Napoleon Used in Europe and many developing countries originally colonized by France Quebecs noncriminal legal system is based on the French Civil Code

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Common Law Legal System

United Kingdom and Commonwealth of Nations (and United States) Judge-made Law

Developed in the courts Based on precedent or stare decisis

judges are bound to follow previous decisions of equal or higher courts in their hierarchy, with like facts and law

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Sources of Law
Common Law

the precedent-making decisions of the courts of Great Britain decisions made by Court of Chancery

Law of Equity

Statutes

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Common Law
Judges "discovered" law in custom and traditions of "common people Borrowed legal principles from:
Roman civil law Canon or church law Law merchant

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Equity
Common law courts had limitations Court of Chancery (Equity) provided relief Resulting principles known as the law of equity

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Merger
Adoption of stare decisis led to rigidity Common law and Equity courts merged One court, but two bodies of rules Both sets of principles applied (equity supplements, and overrides, the common law)

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Statutes
Legislation (statutes and regulations) overrides common law (judge-made law) Often summarizes and modifies common law. For example:
Criminal Code Sale of Goods Act

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Parliamentary Supremacy
Legislation
overrides all other law as long as it is consistent with the Constitution

Legislation also overrides

bylaws made by municipal governments regulations made by cabinet rules made by administrative tribunals

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Constitution and Division of Powers

Laws Conventions Court decisions

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Constitutional Laws in Canada

Constitution Act, 1867 division of powers, etc. Statute of Westminster (1931) Constitution Act, 1982
The Canadian Charter of Rights and Freedoms

Nearly 30 other pieces of constitutional legislation

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Constitution Act, 1867

Formerly known as the British North America Act
An Act of the U.K. Parliament

Sections 91 and 92 divide powers between federal and provincial governments Structure of the judicial system

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Constitution Act, 1982

Lists government enactments having constitutional status Ends ties with British government Establishes amending formula for constitutional change Charter of Rights and Freedoms

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Conventions
Canada inherited some binding constitutional conventions or traditions from the United Kingdom
Preamble of the Constitution Act, 1867

For example:
Political parties Rule of law
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Conventions, continued
Prorogue Parliament
Governor General to follow advice of PM

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Court Decisions
Constitution includes case law on constitutional issues (especially SCC cases)
Cases on division of powers Cases on the Charter of Rights and Freedoms

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Division of Powers
Federal system
11 legislative bodies (1 federal, 10 provincial) Each is supreme within its designated jurisdiction

Constitution Act, 1867 divides powers between federal (section 91) and provincial (section 92) governments

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Ultra Vires
Legislation must be within legislative body's jurisdiction (intra vires) Legislation that is ultra vires is invalid Federal and provincial government powers can overlap - adhere to higher standard Paramountcy applied where laws conflict (if can't adhere to both, follow federal) Powers cannot be delegated - directly
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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 among, provinces?

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Protection of Rights & Freedoms

Charter of Rights and Freedoms
Entrenches rights and freedoms
Everyone Citizens of Canada Individuals

Protects from infringement of rights by governments or their agents

continued

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Charter of Rights and Freedoms

Limitations on Charter rights

Section 1 - interference with right may be justifiable in a free and democratic society Section 33 - legislatures can pass acts that infringe on rights notwithstanding the Charter, but legislation must be reviewed every 5 years (sunset clause)

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Fundamental Freedoms
2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

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Rights
Democratic rights (s. 3-5) Mobility rights (s. 6) Legal rights (s. 7-14) Equality rights (s. 15) Language rights (s. 16-23)

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Remedies
Remedies are provides for certain breaches of Charter rights under s. 24

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Significance of Charter
Gives courts the power to override government legislation and policy This was a role that the courts did not effectively have prior to 1982

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Human Rights Legislation

Traditionally common law and custom protected human rights and individual freedoms Federal and provincial legislation now protects individuals against human rights violations in social, business and private relationships
only in certain protected areas, and on certain prohibited grounds.
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Human Rights Legislation, continued

Canadian Human Rights Act federal legislation Provincial human rights acts protect private relationships Must comply with Charter Tribunals hear complaints Duty to accommodate

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