LW 1 – LAW 1 John G. Harrison, Barrister & Solicitor Harrison Law Office 200 – 99 Scurfield Boulevard 989-8761(work) or 256-0653(home) 989-8765 (fax) john.harrison@harrisonlaw.ca

Lesson 1 These slides are provided solely for your use/convenience in class in order to follow the lecture being given by me (John Harrison) - they are not CGA prepared/produced/vetted materials

The Canadian Legal System 1.1 Nature of law 1.2 Categories of law 1.3 Origins of law 1.4 Sources of law 1.5 The Law in Canada 1.6 Human rights law 1.7 The Canadian Charter of Rights & Freedoms 1.8 The system of courts 1.9 Using the Courts 1.10 Legal costs 1.11 Alternatives to court action 1.12 Advantages & disadvantages of ADR

1.1 Nature of law Law = a body of rules that can be enforced by the courts and other government agencies Morality does/can affect law Unethical behaviour of professionals – governing body will likely sanction!

1.2 Categories of law 1. substantive law versus procedural law Procedural law tells one how to do something, while substantive law tells you what you can or cannot do substantive law – the body of law that governs society (is law that defines rights, duties and liabilities) – example is law re contractual matters procedural law – the law governing how substantive law (rights and obligations) are enforced – example would be limitation dates

2. Public law v. private law Two types of substantive law Public law governs the relations between governments or between government and individuals (examples: criminal law, constitutional law, administrative law) Private law (aka civil law) concerns relations of individuals to one another - personal, social & business relationships (examples: contract law; tort law; property law; etc.)

One incident can occur where both public and private laws and actions (lawsuits) might be involved!

1.3 Origins of law Two legal systems exist in Canada Civil law system (for private law in Quebec) – based upon a civil code which sets out laws to be applied by judges Common law system (judges make decisions based on the theory of precedent)

Common law and the theory of precedent (doctrine of stare decisis) – why? (stability, consistency, predictability – yet still flexible) 5th paragraph Binding precedents – 2 rules (4th paragraph under 1.3) Avoiding a precedent (distinguishing – 6th paragraph of 1.3)

1.4 Sources of law Judges make law (often referred to as case law and sometimes as common law) In the common law system law was based on precedents, merchant law, church/canon law, etc. A parallel system of law referred to as equity developed due to rigidity of c/l system

Thankfully, the Courts of equity merged with the courts of common law in about 1875 – many principles from equity remain available (including law regarding trusts)

Statute law (aka legislation)– is law created by legislative bodies (e Statute law (aka legislation)– is law created by legislative bodies (e.g. Parliament or a provincial legislature – I refer to both of these as “legislatures”) – a statute is generally referred to as an “Act” (e.g. The Workers Compensation Act) Statute law can (a) codify case law; (b) make new law; or (c) change existing case law

A valid statute overrides common law on the same point & therefore theoretically Parliament is supreme but: Judges interpret statute law at times and can thus limit the scope of its application; and They have the power to declare a statute to be invalid because wrong level of “legislature” created it or because it violates rights set out in the Charter of Rights

Statutes are interpreted by judges and applied in Court decisions and the judicial decisions can become precedents for application in future cases

Although not covered right here in 1 Although not covered right here in 1.4, note that statutes can create bodies or entities like boards/commissions and delegate the power to make law to them – the law they make is called subordinate legislation See subject matter in 1.5

1.5 The law in Canada Constitution is composed of the rules that define the fundamental structures of state (legislative, executive and judicial structures) These rules can be written or unwritten

There are 2 main constitutional acts: 1. The Constitution Act, 1867 - what it did: set up basic structures of state principle of paramountcy – paragraph Federal system of government - Division of Powers - sections 91 (includes POGG) and 92 2. Constitution Act, 1982 (contains the Charter of Rights dealt with in 1.7)

Rule of law – an important concept in constitutional law refers to the idea that the legitimate actors in the political system (federal and provincial government, cabinet, municipal governments, etc.) only have as much authority as has been vested in them ultra vires = beyond the scope of their powers intra vires = within the scope of their powers

1.6 Human Rights law human rights legislation – these are statutes (Canadian Bill of Rights, Canadian Human Rights Act, provincial & federal Human Rights Codes) they are not “entrenched” so could be amended or repealed like any other statutes these extend to private relations with employers, landlords, etc.

The Charter of Rights is entrenched and applies only to government and not to relations between private persons entrenched = cannot be repealed or amended by an ordinary act of Parliament or provincial legislature

The Canadian Charter of Rights and Freedoms The Constitution Act, 1982 contains the Charter I make 5 main points about the charter: 1. The Charter is entrenched – understand the concept – it places some limits on the supremacy of Parliament over the judiciary

2. Statutes are not allowed to violate rights in the Charter & will be declared invalid by a Judge 3. Section 1 of the Charter provides an exception where minor breaches of rights might in some circumstances be allowed

4. section 33 of the Charter (override clause) allows a gov’t to override sections 2 and 7 to 15 in a statute into which the “legislature” inserts a “notwithstanding clause” - understand “sunset clause” concept 5. Section 32(1) says the Charter applies to government and government related activities

Charter of Rights and Freedoms – the protection of our rights is not absolute: Section 1 – reasonable limits Section 32(1) – only applies to governments & government related activities Section 33 – allows use of the notwithstanding clause (and there is a “sunset clause”)

Main provisions of Charter: fundamental freedoms, democratic rights, legal rights, mobility rights, equality rights and language rights (see text) Remember, section 33 applies only to sections 2 (fundamental rights), and 7 to 15 (legal rights and equality rights)

1.8 The system of courts Action = trial = lawsuit Civil action v Criminal action differences: Parties Who has the burden of proof (initiating parties)? Different pre-trial proceedings Standards of proof (for civil and criminal)) Objectives are different (punishment v remedy)

Open court policy for the most part Hierarchy of courts - pyramid (see next slide) Supreme Court of Canada – final court of appeal for Canada and civil matters require leave to appeal (matters of national importance) Superior courts (define) - Courts of Appeal and trial courts Lower (inferior) trial courts (define)

Court hierarchy Supreme Court of Canada Court of Appeal of the Province Federal Court of Appeal Superior Trial Court of the Province Federal Court Provincial Courts Tax Court of Canada

What superior and inferior courts do: Determine questions of fact – ascertain the facts (done by the jury in those few situations where they are involved) Determine questions of law – ascertain the relevant law to be applied in the case

1.9 Using the courts – civil action Standing to sue (e.g. privity in contract law) Class action required? Jurisdiction – determine the proper forum Limitation periods – sue within the timeframe set Steps towards civil trial – pleadings, discovery, pre-trial conference, trial (civil process) Remedies – damages (special and general), accounting, injunction, specific performance, declaration Appeal – you need leave to appeal from SCC – civil cases Enforcement/execution – see section 1.10

1.10 Legal costs Methods of fee payment: lump sum fee for service hourly rate Contingency fee arrangement Legal costs – party & party costs v. solicitor client costs Then comes execution to enforce (no guarantees you will be successful)

Alternatives to court action Alternative Dispute Resolution (“ADR) Negotiation Mediation Arbitration 3 important differences between mediation and arbitration: mediator is active and arbitrator is passive; mediator cannot impose decision; in mediation parties can craft whatever solution they agree to, while arbitrator must work within scope of their jurisdiction

Advantages and disadvantages of ADR 7 main points of advantage – first 7 paragraphs in 1.12 potential drawbacks follow the advantages drawbacks are greater for arbitration than mediation since no harm is likely to result from trying to negotiate

Negotiation Parties discuss the problem with each other in order to find a solution. Agreement may not be legally binding.

Mediation Neutral outsider helps party settle the dispute. Mediator does not make decision.

Arbitration Parties agree on an independent third party to make a decision that will be binding on the disputants. Decision of arbitrator is binding on the parties. Process is private, faster, less costly than litigation, but more formal and more adversarial than mediation.

See you in two weeks! After today I normally rotate to each 2nd class Have a great week!