Introduction to Canadian Law
Peter Bowal Barrister and Solicitor Professor of Law Haskayne School of Business University of Calgary
1 9/17/2012
About the Instructor
B.Comm. (Hons.) (U. of A., 1980) LL.B. (Osgoode Hall Law School, 1982) LL.M. (Hons.) (University of Cambridge, 1986) at University of Calgary since 1991 areas of academic interest
employment law and whistleblowing
other:
practising lawyer former Presiding Justice of the Peace former producer and host, LawTalk on QR77 radio
2 9/17/2012
This Course
Significant prescribed reading
text and judicial decisions read in advance of the class meeting analytical, qualitative subject
no single answer to questions
reasoning and oral & written communication are important
3 9/17/2012
HOW TO SUCCEED in this course:
Read all the course material
Attend class and contribute to discussion
Work through practice questions at end of chapters and on textbook website Consider how this material relates to the world around you today
4 9/17/2012
Introduction
most Canadians get no formal education in law
all or nothing approach to legal education entertainment programming/pop culture significant mythology attends the subject this course assumes no prior legal knowledge
law is parochial: bound to territory most potent constraint on business decisionmaking
5 9/17/2012
In this Part . . .
Introduction to our legal system:
what is law and our legal system purpose of law/legal system sources and categories of law judges and courts common law system and how it works the civil litigation process and other methods of resolving disputes
6 9/17/2012
Learning Objectives
Appreciation of the role of law in business
How to find and learn the law
to question it and not be intimidated by it
Basic knowledge of several substantive topics of relevance to business
7 9/17/2012
DEFINING LAW:
Five elements:
Set of rules / prescriptions for human conduct Made by a public law-making authority General application Enforcement by the state Sanctions
8 9/17/2012
LIMITS OF THE LAW:
Unintended consequences: Askov Law cannot fix all our social problems Limitations of the written word
what does it mean in a specific situation?
Enforcement limitations Case Study:
Becker v. Pettkus
9 9/17/2012
THE LEGAL SYSTEM
Law plus:
Institutions/facilities
People and occupations Bound together by core principles
10 9/17/2012
CORE PRINCIPLES OF THE CANADIAN LEGAL SYSTEM
Starting point of the Constitution Rule of Law Personal autonomy Transparency Controls on state (governmental) power Non-retroactivity Content and process of law = moral
11 9/17/2012
CORE PRINCIPLES OF THE CANADIAN LEGAL SYSTEM
Certainty and predictability Independence from government
of judges of lawyers
No contradictions Formality and decorum Justice: means are as important as the ends Compliance must be possible Appeals
12 9/17/2012
CATEGORIES OF LAW
Substantive vs. procedural
what the law is vs. how to use the law
Public law
government always a party in the public interest
Private law
most business law is private law
13 9/17/2012
Categories of Law
LAW
SUBSTANTIVE LAW What the content of the law is PROCEDURAL LAW RULES OF: - CRIMINAL PROCEDURE - EVIDENCE - CIVIL PROCEDURE . these rules determine how legal matters proceed through the legal system
PUBLIC LAW Individual or corporation against the state (on behalf of society)
PRIVATE LAW regulation of private relationships CIVIL . settle disputes between individuals . compensation, usually money (damages)
TAX LAW
PUBLIC CRIMINAL LAW . acts harmful to society INTERNATIONA L LAW . state enforcement . punishment, deterrence, rehabilitation . - Criminal Code - Young Offenders . quasi criminal - provincial statutes
CONSTITUTIONAL LAW . relates to federal/provincial relationships and powers . Charter of Rights
ADMINISTRATIVE AND REGULATORY LAW . . statute creates administrative tribunal and sets out its powers courts to deal with administrative bodies which exceed powers ("judicial review") - eg. Consumer protection and environmental protection
CONTRACTS . making and enforcement of binding promises
REAL ESTATE . ownership and possession of property
FAMILY . marriage . divorce . custody . matrimonial property
WILLS & ESTATES . making and enforcement of wills
COMPANY . formation and operation . buying and selling shares
PATENTS COPYRIGHT
EMPLOYMENT . industrial relations . agreements . disputes - grievances - strikes
TORTS -- "tort": "wrong" in French & Latin nuisance negligence assault & battery false imprisonment defamation . . compensation for civil wrongs remedies - damages - specific performance - injunction
World Legal Systems
[see University of Ottawa website]
Civil Law System most prevalent
Common Law System our Alberta system Muslim Law System
Mixed Legal Systems Canadian system is mixed
15 9/17/2012
SOURCES OF LAW
Depend on the system of law Both major legal systems found in Canada
civil law comprehensive Civil Code common law judges and their written judgments in specific cases primarily for private law
All legal systems have legislatures
not necessarily democratic usually enacts public law
16 9/17/2012
Definition of CIVIL LAW
A system of law (compared to common law system) Private law Civil liberties Local (in the sense of civic govt, defence)
17 9/17/2012
Meanings of Common Law
In the Legal System:
A world system of law (vs. civil law system) Judge-made law (ie. not legislation)
Outside the Legal System:
A form of marriage-like domestic relationship without formal marriage
this meaning has nothing to do with legal system this relationship now recognized by law as equivalent to marriage (rights and obligations)
18 9/17/2012
Common Law Judges
Greatest source of private law Judges are considered a branch of government Judicial independence
Physical security, remuneration, reporting structure, lifetime appointment, no politics
All Canadian judges are appointed (unelected)
accountability? criticisms of judicial activism
Roles of Our Judges
Fill in the gaps with the common law Interpret and apply legislation Interpret and apply constitution (called judicial review of government action) Other:
ceremonial speeches Royal Commissions, etc.
20 9/17/2012
Judicial Precedent
Central concept to common law system Persuasive (non-binding) vs. Binding Binding precedent:
Identical legal issue(s) Similar material facts Same or higher court in the jurisdiction
Judicial dissents
21 9/17/2012
Legislation
Four different legislatures in Canada Various forms of legislation
Usually written by lawyers to be read and used by other lawyers and judges
not easy to find and understand
22 9/17/2012
Legal Jurisdiction
Delineates power of legal authorities
(eg. police, courts, legislatures have power defined by jurisdiction)
Acting outside jurisdiction = error of law Courts: standing (locus standi) geographical/territorial (judicial districts) time (limitations periods) original vs. appellate monetary vs. substantive
23 9/17/2012
Hierarchy of Courts with Jurisdiction in each Province
Supreme Court of Canada
9 judges of which at least 3 from Qubec (others representative of the regions) permanent in Ottawa no new evidence (ie. no issues re-tried here)
Federal Court of Canada
substantive jurisdiction limited to where federal government is a party or over exclusive federal jurisdiction (eg. military, copyright)
Trial Division
Appellate Division
Tax Court
Court of Appeal
does not hear facts again (ie. legal issues only) normally sits in "panels" of judges
General Superior Trial Court
- "inherent jurisdiction" (appellate and original) - unlimited monetary jurisdiction - larger population centres served - all serious criminal offences plus major civil interests such as divorce, large monetary disputes - 1 judge alone or judge with a jury Bankruptcy Court Surrogate Court
Master
Taxation Officer
Provincial Court
Traffic Family/Youth Criminal Civil
monetary limit varies
Justice of the Peace
Courts in Calgary
Calgary Courts Centre 601 - 5 Street SW Calgary, Alberta T2P 5P7
location of the PROVINCIAL COURT OF ALBERTA (all 4 divisions) and
COURT OF ALBERTA
QUEENS
BENCH
OF
25 9/17/2012
Courts in Calgary
COURT OF APPEAL OF ALBERTA
2600, TransCanada Pipelines Tower, 450-1st St., S.W. Calgary, Alberta T2P 5H1
Federal Court of Canada 635 - 8th Avenue S.W. Calgary, Alberta (occasional sittings)
26 9/17/2012
Reporting of Judicial Decisions
Judicial decisions are also called cases Oral (from the bench) decisions Need to be able to find written precedents
27 9/17/2012
Reporting of Judicial Decisions
Commercial reporting of decisions
By jurisdiction By subject (eg. criminal, employment)
Style of cause (ie. name of the case by parties names) Citation (how to find the written case)
28 9/17/2012
Finding Law
Law libraries accessible to the public in Calgary
(all offer reference services during business hours):
Faculty of Law, University of Calgary Law Society Library, 5th floor, Calgary Courts Centre Calgary Public Library (basic collection)
Good free online sources: www.canlii.org
City of Calgary webpage (Bylaws) Alberta courts: http://www.albertacourts.ab.ca/ Supreme Court of Canada: http://scc.lexum.umontreal.ca/en/index.html
29 9/17/2012
Briefing a Case
FILAC:
Facts Issues Law Analysis Conclusion
[any other comments/observations?]
See sample Newfoundland Telephone case brief
30 9/17/2012
QUESTIONS and COMMENTS?
31 9/17/2012
