Yates_Ch.2_9Yates, Bereznicki-Korol, Clarke Business Law in Canada, Tenth Edition e

Copyright © 2011 Pearson Canada Inc. 2-1

Chapter 2:

Introduction to the Legal System

Yates, Bereznicki-Korol, ClarkeBusiness Law in Canada, Tenth Edition

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 Canada’s

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

Copyright © 2011 Pearson Canada Inc. 2 - 3


What Is Law?

• Difficult to come up with a definition for law

• Definition is affected by:• History• Theory• Legal system in place• Social realities


Definition of Law for this Course

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


Categories of Law

• Substantive Law– The rules that govern behaviour and set limits

on conduct• Procedural Law

– How rights and obligations are enforced

continued …


Categories of Law, continued• Public Law

– Regulates our relationship with government• Private Law

– Regulates personal, social and business relationships


Civil Law Legal System

Roman Law - Justinian

• Codified

• Modified by Napoleon

• Used in Europe and many developing countries originally colonized by France

• Quebec’s noncriminal legal system is based on the French Civil Code


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


Sources of Law

• Common Law– the precedent-making decisions of the courts

of Great Britain

• Law of Equity– decisions made by Court of Chancery

• Statutes

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


Equity

• Common law courts had limitations

• Court of Chancery (Equity) provided relief

• Resulting principles known as the law of equity


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)



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

“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



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


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


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


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

continued …

Conventions, continued • Prorogue Parliament

– Governor General to follow advice of PM


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


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


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



Question for Discussion

Canada’s constitutional structure is essentially different from Britain’s 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?



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 …


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)

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.



Rights

• Democratic rights (s. 3-5)

• Mobility rights (s. 6)

• Legal rights (s. 7-14)

• Equality rights (s. 15)

• Language rights (s. 16-23)


Remedies

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


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


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.

continued …


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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