Chapter 1: The law and the legal system Flashcards
What is Law?
rule which governs or regulates the conduct of persons and businesses. The law is a jurisdiction-based collection of rules which impose penalties when the rule is ignored or disobeyed.
What are the functions of Law?
- Protection of rights and privileges
- Restriction of rights and privileges
- Control/enforcement of rights and privileges.
What is common law?
Originated in Britain, used in all provinces/territories (except Quebec), its a judge-made law based on precedent (use of previous judgments as aid to later decisions).
What is law of equity?
Originated in Britain in Court of Chancery, developed when common law didn’t provide suitable remedy through provision of money damages.
Examples of Equitable Remedy
- Specific Performance: makes you do something.
2. Injunction: makes you stop doing something.
what is Division of law making authority?
British North America Act (1867) divided authority between federal (section 91) and provincial (section 92) governments.
Which are the 2 parts of The Canadian Constitution of 1982? and what does it do?
Gives the courts authority to strike down government action that exceeds jurisdiction. Has 2 parts: British North America Act + Charter of Rights and Freedoms.
What does the Charter of Rights and Freedoms entrenches?
It entrenches the fundamental and basic rights to Canadians.
Can the Charter of Rights and freedoms be changed/repealed?
Yes, but only by an Act of Parliament approved by 2/3 of the provinces which contain at least 50% of the population.
What is sec. 33 of the Charter?
The “notwithstanding clause” allows the government to enact legislation that overrides some parts of the Charter IF its purpose is to achieve a government GOAL. After 5 years, such laws expire but they may be formally re-enacted by the government.
What is Statute Law?
Law that arises from a legislative process. Initiated by elected representatives, debated and if approved, brought into force. If there is conflict between statute and common law, common law prevails.
What are the 3 levels of Statute Law?
**Figure 1-1
- Federal.
- Provincial.
- Municipal.
how are the courts organized in the Canadian Legal System?
- Geographically
- Monetary amounts
- Subject Matter.
Definition of Litigant
Person who is suing somebody, commences a lawsuit in a court or trial court. If one party disagrees the judges application of facts, severity of sentence, or amount of damages they can commence an appeal.
What are the 3 different Federal Courts and what matters do they handle?
**Figure 1-2
- Federal Court Trial Division: taxation, patents, trademarks, copyright, and appeals from federal boards and commissions.
- Federal Court of Appeal: appears from Trial Division.
- Supreme Court: appeals from Federal Court and from provincial and territorial court of appeal.
What are the 3 different Provincial Courts and what matters do they handle?
- Civil Law Court: corporation’s disputes, individual vs government disputes, special subject matters.
- Small Claims Courts: disputes concerning less than $25,000.
- Provincial Supreme/Superior/Queens Bench Courts: unlimited monetary jurisdiction.
What are the other kinds of Provincial Courts and what matters do they handle?
**Figure 1-3
Criminal Courts: criminal subject matters, offences under provincial/territorial statutes, municipal laws.
Courts of Appeal: appeals from provincial/territorial trial courts.
What is the Criminal Court Procedure?
A case is brought to criminal court by the Crown by one of 2 procedures. LESS SERIOUS offences proceed by INFORMAL SUMMARY CONVICTION RULES of procedure, but MORE SERIOUS offences proceeds by way of INDICTMENT (formal prosecution process)
How is the Criminal Court Trial?
If the accused pleads not guilty, the Crown must prove that the accused committed the criminal act AND intended to do so. Both Crown/defence call witnesses. After summations by counsel, the court writes a judgement with reasons explaining the verdict.
What is the Civil Court Procedure?
A civil lawsuit is commenced with exchange of pleadings between plaintiff and defendant. Examinations for discovery are held under oath, recorded in transcripts and the evidence may be used in trial.
Ordinary and expert witnesses are called by both parties and examined by the opposing counsel.
How is the Civil Court Trial?
A judgement is written by a judge providing the reasoning for the decision and perhaps awarding damages to compensate the victim for losses. Punitive damages may be awarded if the injury caused to the plaintiff was deliberate. There can be an appeal if judge erred the application of law to the facts or admission or evidence.
What is an Administrative Tribunal?
Board or commissions that may perform similar functions of courts (but only within the jurisdiction of a specialized statute). Procedural fairness is required from the tribunal, if there is no Procedural fairness (decision is unreasonable, or tribunal exceeded jurisdiction) a court may quash the decision.
What is Alternative Dispute Resolution (ADR)?
Alternatives to the court process for resolution disputes by Arbitration and Mediation. In commercial arbitrations, both parties can select an arbitrator. Contract disputes can be resolved quickly, confidentially and inexpensively using ADR.
Who is a Mediator and who is an Arbitrator?
Mediator: Expert is subject matter in dispute and helps parties to reach agreement (non-binding).
Arbitrator: May have similar qualifications to a mediator, but participants agree in advance that the Arbitrator can make a decision, similar to a judge (binding).
