CHAPTER Microsoft ® PowerPoint ® Presentation Prepared By Gail McKay, LLB, Thompson Rivers University © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved. 1 The Law and the Legal System

Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-1 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved. OBJECTIVES 1.To define law, explore its origins and examine methods of enforcement 2.To outline the legal system and its procedures 3.To survey methods of dispute resolution which are alternatives to court

NATURE AND ORIGINS OF THE LAW A law is a rule which governs or regulates the conduct of persons and businesses In general, the law is a jurisdiction-based collection of rules which impose penalties when the rule is ignored or disobeyed Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-2 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

The functions of law include: The protection of rights and privileges The restriction of rights and privileges The control and enforcement of rights and privileges Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-3 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

The common law originated in Britain and is used in all of the provinces and territories except for Quebec It is judge-made law based on the doctrine of precedent, meaning the use of previous judgments as an aid to later decisions When cases have very similar facts, the decisions of higher courts are binding Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-4 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved. THE COMMON LAW

EQUITY The law of equity originated in Britain in the Court of Chancery It was developed when the common law did not provide a suitable remedy through the provision of money damages Specific performance is an example of an equitable remedy from the Court of Chancery Fundamentals of Canadian Business Law, 2nd Canadian Edition Slide 1-5 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

DIVISION OF LAW MAKING AUTHORITY The British North America Act was enacted in 1867 It formally divided the authority to make law between the federal (section 91) and provincial (section 92) governments The subject matter of the law determines which government has jurisdiction Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-6 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE CANADIAN CONSTITUTION The Constitution of 1982 consists of two parts: the British North America Act and the Charter of Rights and Freedoms The Constitution gives to the courts the authority to strike down government action that exceeds jurisdiction or contravenes the principles of The Charter Fundamentals of Canadian Business Law, 2nd Canadian Edition Slide 1-7 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE CHARTER OF RIGHTS AND FREEDOMS The Charter entrenches the fundamental and basic rights of Canadians The Charter cannot be changed or repealed except by an Act of Parliament approved by two-thirds of the provinces which contain at least 50 percent of the population Rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 1) Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-8 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

The Charter The “notwithstanding clause” (section 33) permits a government to enact legislation that overrides some parts of The Charter if its purpose is to achieve an important government goal After five years, such laws expire, although they may be formally re-enacted by a government Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-9 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

STATUTE LAW A statute is a law that arises from a legislative process It is initiated by elected representatives, debated, and if approved, brought into force If there is a conflict between a statute and the common law, the statute law prevails There are three levels of statute law: federal, provincial and municipal Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-10 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE CANADIAN LEGAL SYSTEM: THE ROLE OF THE COURTS The judicial system is organized according to geographical considerations, monetary amounts and jurisdiction by subject matter A litigant commences a lawsuit in a court of original jurisdiction or trial court If one party believes the judge erred in the application of the law to the facts, in the severity of a sentence or in the amount of damages, an appeal may be commenced Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-12 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE FEDERAL COURTS The Federal Court Trial Division handles subject matter such as taxation, patents, trademarks and copyright as well as appeals from federal boards and commissions The Federal Court of Appeal hears appeals from the Trial Division The Supreme Court of Canada may hear an appeal from the Federal Court of Appeal and from a provincial or territorial court of appeal Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-13 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE PROVINCIAL COURT SYSTEM Civil law courts have jurisdiction to hear disputes among corporations, individuals and governments, and some are limited to special subject matters Small Claims Courts generally have jurisdiction to hear disputes concerning less than $25,000 Provincial Supreme, Superior, or Queen’s Bench Courts hear civil matters with an unlimited monetary jurisdiction Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-15 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

OTHER PROVINCIAL COURTS Criminal courts deal with criminal subject matter under federal statutes as well as offences under provincial and territorial statutes and municipal bylaws Courts of appeal receive appeals from the provincial and territorial trial courts Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-16 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

CRIMINAL COURT PROCEDURE A criminal case is brought to criminal court by the Crown by one of two procedures Less serious offences proceed by way of the informal summary conviction rules of procedure More serious offences proceed by way of indictment, which is a formal prosecution process Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-18 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

CRIMINAL COURT TRIAL If the accused pleads not guilty to the charge, the Crown must prove that the accused committed the criminal act and intended to do so Both the Crown and defence counsel call witnesses for their case who are then subject to cross examination by opposing counsel After summations by counsel, the court writes a judgment with reasons explaining the verdict Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-19 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

CIVIL COURT PROCEDURE A civil lawsuit is commenced with an exchange of pleadings between the plaintiff and defendant, detailing facts and claims Examinations for discovery are held under oath, recorded in transcripts and the evidence contained in them may be used at the trial Ordinary and expert witnesses are called by both parties and cross examined by opposing counsel. Hearsay evidence is not permitted Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-20 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

CIVIL COURT TRIAL A judgment is written by a civil court judge providing the legal reasoning for his or her decision and perhaps making an award of damages to compensate the victim for losses Punitive damages may be awarded if the injury caused to the plaintiff was deliberate An appeal may be commenced if, for example, the judge erred in the application of law to the facts or in the admission of evidence Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-21 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

ADMINISTRATIVE TRIBUNALS Boards or commissions may perform a function similar to that of a court, but only within the jurisdiction of a specialized statute Procedural fairness on the part of the tribunal is required in the conduct of a hearing A court may quash the decision of a tribunal if the procedural fairness requirement is not met, if its decision is patently unreasonable, or if the tribunal has exceed its jurisdiction Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-22 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

ALTERNATIVE DISPUTE RESOLUTION Arbitration and mediation are alternatives to the court process for resolution of disputes In commercial arbitrations, both parties have a say in the selection of an arbitrator who hears evidence and makes a decision that is binding Contract disputes, particularly between businesses with longstanding relationships, can be resolved quickly, confidentially and inexpensively Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-23 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

THE ROLE OF THE LEGAL PROFESSION Legislation governs the legal profession, limiting the right to practice law to those who are formally admitted to provincial and territorial law societies Following admission to the bar, lawyers are subject to codes of conduct in the practice of the profession Law societies have the power to discipline lawyers who fail to comply with the codes Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-24 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.

SUMMARY Law governs the conduct of individuals and businesses through government-made statutes and judge-made common law cases Methods of dispute resolution include the court system, administrative tribunals, mediation and arbitration For businesses, commercial arbitration offers confidential, inexpensive and speedy solutions which maintain longstanding relationships Fundamentals of Canadian Business Law, 2nd Canadian EditionSlide 1-25 © 2008 McGraw-Hill Ryerson Ltd., All Rights Reserved.