CML2118 Introduction To Law 2008, Lecture 6

Today:

1. Finish History and Heritage of the

Canadian Legal System

2. Introducing divisions of law

Joining of Common Law and Equity

Rules of law and equityRules of law and equityRules of law and equityRules of law and equity

96.96.96.96.(1)Courts shall administer concurrently all rules of equity and the common law. R.S.O. 1990, c. C.43, s. 96 (1); 1993, c. 27, Sched.

Rules of equity to prevailRules of equity to prevailRules of equity to prevailRules of equity to prevail

(2)Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails. R.S.O. 1990, c. C.43, s. 96 (2); 1993, c. 27, Sched.

Courts of Justice ActCourts of Justice ActCourts of Justice ActCourts of Justice Act, , , , R.S.O. 1990, C.43.

Political Developments and the Courts

• Parliament composed of regional representatives

• Acted as court of last resort

• 1332: Split into House of Commons and House

of Lords

• Lords retain judicial function today

• Parliamentary Supremacy, Responsible

Government, and Judicial Independence

Adoption of English Law in Canada

• Date of Introduction vs. Date of Reception

• Continued oversight by Judicial Committee of the

Privy Council until 1949

• Confederation through the BNA

(Constitution Act, 1867)

Introducing Divisions of Law

System of writs

led to modern

branches of law

Contract Law: covenant, assumpsit, debt

Tort Law: trespass vi et armis, trespasson the case, trover

Administrative Law: certiorari,

habeus corpus

modern divisions in law

but also

recent collapsing of divisions

Conflict of Laws

Domestic vs. Foreign Law

Domestic vs. International Law

Domestic vs. Foreign Laws

Conflict of Laws example

MorguardMorguardMorguardMorguard Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De SavoyeSavoyeSavoyeSavoye, [1990] 3 S.C.R. 1077.

Conflict of Laws example

MorguardMorguardMorguardMorguard Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De SavoyeSavoyeSavoyeSavoye, [1990] 3 S.C.R. 1077.

De Savoye

Morguard Investments

Conflict of Laws example

MorguardMorguardMorguardMorguard Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De Investments Ltd. v. De SavoyeSavoyeSavoyeSavoye, [1990] 3 S.C.R. 1077.

De Savoye

Morguard Investments

Ratio: “real and substantial connection”

Conflict of Laws example 2

UnifundUnifundUnifundUnifund v. ICBCv. ICBCv. ICBCv. ICBC, [2003] 2 S.C.R. 63, 2003 SCC 40.

Conflict of Laws example 2

UnifundUnifundUnifundUnifund v. ICBCv. ICBCv. ICBCv. ICBC, [2003] 2 S.C.R. 63, 2003 SCC 40.

Marcia and Ronald Brennan

Owner, driver Unifund

and garage of Ontario

Insurance Corp

of British Columbia

Conflict of Laws example 2

UnifundUnifundUnifundUnifund v. ICBCv. ICBCv. ICBCv. ICBC, [2003] 2 S.C.R. 63, 2003 SCC 40.

Marcia and Ronald Brennan

Owner, driver Unifund

and garage of Ontario

Insurance Corp

of British Columbia

Ratio: Ontario Insurance Act inapplicable to ICBC

Domestic vs. International Law

Domestic vs. International Law

• Treaties

• Domestic law

• International courts and tribunals

• Application of Canadian law in Canada to nonCanadians

• Application of Canadian law outside Canada

Application of Canadian law outside Canada

6. (2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.

Criminal Code of Canada, R.S., 1985, c. C-46, s. 6.

Anyone with internet access? Look up ss. 7(1)(b) and 7(2.31).

Form vs. Substance

Procedure vs. Substantive Law

Substantive Law

• Establishes legal relations

• Provides for substantive rights

• Provides for consequences of violations

• Substantive law applied as at time of events

Procedural Law

• Deals with the legal process used to enforce

substantive rights

• Different areas of substantive law have different

procedural rules

• Provides for process, parties, limitations, appeals and

review, evidence, questioning

• Procedural law applied as at time of trial

Evidence

• A branch of procedural law

• Differs in different areas of law

• Best Evidence rule

• “Hearsay”

• General rule: To be admitted, evidence must be

relevant and reliable

• “Examination in chief” vs. “Cross−examination”

Distinguishing Proc. and Subst. rights

• Substantive law applied as at time of events

• Procedural law applied as at time of trial

• Courts required to categorize rights

• Justification for this difference?

For next class…

Legal Reasoning

• Pages 114−131

• In class, we will discuss the cases on pp. 132−146

(Carbolic Smokeball and Donoghue v. Stevenson)