Introduction to Canadian Law

Peter Bowal Barrister and Solicitor Professor of Law Haskayne School of Business University of Calgary

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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
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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
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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
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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

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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

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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

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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

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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
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THE LEGAL SYSTEM

Law plus:
Institutions/facilities
People and occupations Bound together by core principles
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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

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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

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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
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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
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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
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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)

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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)

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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.

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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
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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
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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
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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
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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)
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Reporting of Judicial Decisions

Judicial decisions are also called cases Oral (from the bench) decisions Need to be able to find written precedents

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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)

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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
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Briefing a Case
FILAC:
Facts Issues Law Analysis Conclusion

[any other comments/observations?]

See sample Newfoundland Telephone case brief

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QUESTIONS and COMMENTS?

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