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COMM 315 > Important terms > Flashcards

Important terms Flashcards

1
Q

Jurisprudence

A

All the decisions made by the courts in Canada.

How other judges have interpreted the law.

Decisions of some courts carry more weight.

The Supreme Court of Canada is indeed the highest court in the country, and its decisions are considered paramount, meaning they hold the highest authority and are binding on all other courts in Canada.

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2
Q

Precedence

A

Precedents lay down rules in their rationes(rational/reason), and such rules are binding in later cases whose facts fall within the scope of those rules.

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3
Q

Civil Law

A

-Based on Legislative authority and Codified law{legislature codifies laws}
-France

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4
Q

legislative

A

Having the power to make laws.

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5
Q

Common Law

A

-Based on Jurisprudence [Judge made law]/[Case law] and precedence.
-England

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6
Q

Domains of Law

A

-Public Law
-Private Law

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7
Q

Private Law

A

Rules that regulate the legal relationship between individual citizens:
-Contract Law
-Employment Law
-Commercial Law
-Property Law

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8
Q

Quebec, Civil or Common law

A

The civil law applies in Québec in all matters of private law, including matters of family and child law.
Public law is federal even in Quebec.

Quebec is one of the rare jurisdictions in the world where bijuralism applies, civil law stands where private law applies and common law is used in public law.

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9
Q

Public Law

A

Rules that govern the relationship between the citizens and their state:
-Tax Law
-Criminal Law
-Bankruptcy Law
-Highway Law

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10
Q

Substantive vs Adjectival Law

A

Substantive Law, is where we can find the “substance” of our rights such as:
-Civil Code of Quebec.

Adjectival Law or Procedural law, are the procedures to protect substantive law i.e:
-The Quebec Code of Civil Procedure

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11
Q

To Sue: The 5 W’s

A

Why sue?
-Somebody owes you money or an obligation and refuses to perform

What is involved?
-Start legal proceedings
-Convince a judge

Who are the parties?
-Before Lawsuit is filed, Creditors and Debtors
-Inside court proceedings; PLAINTIFF AND DEFENDANT.

Where do you Sue?
1. The defendant lives.
2. The defendant has property.
3. The cause took place
4. The contract was finalized.
5. The property in dispute is situated.

When can you Sue?
-From the moment we become aware, the right is limited in time. A lapse of time extinguishes the right to sue, in most cases that corresponds to 3 years.
So have 3 year delay to Sue.

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12
Q

Creditors V.S Debtor

A

Creditors are individuals/businesses that have lent funds to another company and are therefore owed money.

By contrast, debtors are individuals/companies that have borrowed funds from a business and therefore owe money.

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13
Q

Judicial district

A

Judicial district, or legal district denotes the territorial area for which a legal court has jurisdiction.

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14
Q

3 Elements make up the legal System

A

-Structure
-Laws
-Administration & Enforcement

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15
Q

First element of the Legal System: Structure

A

_Sovereignty & Authority to Enact Law:
_Constitution Act, 1982
_Federal (s.91) and provincial governments.[This refers to specific sections of the Constitution Act, 1867 (formerly the British North America Act, 1867), which outline the distribution of legislative powers between the federal government ]
_The authority is granted to elected representatives.

The Legislative Process

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16
Q

Constitution act, 1982

A

The Constitution Act, 1982, is a significant piece of Canadian constitutional law. It includes the Canadian Charter of Rights and Freedoms and various provisions related to the division of powers between the federal and provincial governments, among other things.

///////MORE CONTEXT\\\

The Constitution Act of 1982, also known as the Canada Act 1982, is a significant piece of Canadian constitutional legislation. It marks a critical moment in Canada’s history as it led to the full patriation of the Canadian Constitution, meaning that Canada gained full control over its constitution without requiring approval from the British Parliament. Here are its key components:

Canadian Charter of Rights and Freedoms: The most well-known part of the Constitution Act, 1982, is the Canadian Charter of Rights and Freedoms. This section of the act guarantees a wide range of civil liberties and fundamental rights to all Canadian citizens. It includes rights such as freedom of expression, freedom of religion, and the right to a fair trial.

Patriation of the Constitution: Before the Constitution Act of 1982, Canada’s Constitution was a set of British statutes, and changes to it required approval from the British Parliament. The 1982 Act patriated the Constitution, which means it was brought to Canada in its entirety. Canada gained full control over its constitution and the ability to amend it without British involvement.

Amending Formula: The Constitution Act of 1982 outlines a process for amending the Constitution. It defines how amendments can be made, either with the consent of the federal government and all provinces or with the consent of certain subsets of provinces, depending on the nature of the change.

Supremacy of the Constitution: The Constitution Act of 1982 establishes that the Constitution is the supreme law of Canada, and all laws, including federal and provincial laws, must comply with it. This principle is crucial in Canadian constitutional law.

Aboriginal and Treaty Rights: The act also recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada.

The Constitution Act of 1982 was a significant milestone in Canada’s history, providing a framework for the protection of individual rights and freedoms, the ability to amend the constitution domestically, and the recognition of Indigenous rights. It was accompanied by the patriation of the Constitution from the United Kingdom, symbolizing Canada’s growing independence and sovereignty as a nation.

17
Q

Constitutional law

A

Constitutional law is the branch of law that deals with a country’s fundamental rules, government structure, individual rights, and the power of its branches of government, all outlined in its constitution.

-Outlines the separation of power between the judicial, executive and legislative branches.

Constitution:
A constitution is a written or unwritten document that sets out the fundamental rules and principles by which a government operates.

18
Q

Legislative Process

A

Part of Structure(first element):
_Cabinet usually introduces laws
_” Private Members Bills”
_Three elements in the process
1-Legislature (House of Commons/ Provincial legislatures)
2-Senate (Abolished in Quebec)
3-Queen (Governor General / Lieutenant GG – Royal Assent)

Parliament consists of three elements: the Crown, the Senate and the House of Commons. Parliament makes laws in the form of statutes or “Acts.” All three elements must assent to a bill (draft Act) for it to become law.

IN QUEBEC:
The legislature is made of two elements: the lieutenant governor of Quebec, representing the King of Canada, and the unicameral assembly called the National Assembly of Quebec.

19
Q

Second Element - LAWS

A

_Laws are rules of behaviour imposed or accepted in society.
_Six sources of law that develop or restrict new laws.
-1- Constitution

-2- Statutes

-3- Jurisprudence

-4- Doctrine

-5- Customs

-6- Administrative laws

20
Q

Constitution(6 elements of Laws)

A

a. Sections 91 and 92 of the Constitution act, 1867(Parliamentary Supremacy)

b. Constitution act, 1982(Constitutional Supremacy)

c. Section 52 “the supreme law of Canada”

21
Q

Sections 91 and 92 of the Constitution act, 1867(Parliamentary supremacy)

A

Sections 91 and 92 of the Constitution Act, 1867, are key provisions that outline the distribution of legislative powers between the federal government (referred to as “the Parliament of Canada”) and the provincial governments in Canada. They are significant in understanding the concept of parliamentary supremacy within Canada’s federal system. Here’s a brief overview of these sections:

Section 91 (Powers of the Federal Parliament):

Section 91 enumerates the areas of legislative authority granted exclusively to the federal government. These areas are often referred to as “federal powers” or “national powers.” Some examples of subjects falling under federal jurisdiction include:
Currency and coinage
National defense
Criminal law
Immigration and naturalization
Banking and banking regulation
Copyright and patents
Postal service and telecommunications
Section 92 (Powers of Provincial Legislatures):

Section 92 outlines the areas of legislative authority granted to the provincial governments. These areas are often referred to as “provincial powers” or “local powers.” Some examples of subjects falling under provincial jurisdiction include:
Education
Health care
Property and civil rights
Local works and undertakings
Administration of justice
Natural resources within the province
Municipal institutions
Together, Sections 91 and 92 establish the division of powers in Canada’s federal system. While both levels of government have significant authority in their respective areas, the federal government is granted authority over matters that have a national or interprovincial scope, while the provincial governments have authority over matters that are more localized and directly affect the daily lives of residents within each province.

Parliamentary supremacy, in the context of Sections 91 and 92, means that each level of government has authority within its own sphere, and their respective laws are supreme in those areas. However, if a conflict arises between federal and provincial laws in areas of shared jurisdiction or if a law is found to be unconstitutional (inconsistent with the Constitution Act, 1867), the federal law prevails under the principle of federal paramountcy. This ensures a degree of legal order and consistency in Canada’s federal system

22
Q

Statutes (6 Elements of Law)

A

a.Statute is a law passed by government.
b.Can be changed at any time by simple majority.

23
Q

Jurisprudence(6 elements of Law)

A

a. Case Law
b. Precedence: courts decide similar cases in a similar manner
c. Doctrine of Stare Decisis :
i. Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin
d. Who can change precendence? — A higher court
e. Juridicial activism: is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.

24
Q

Doctrine(6 elements of Law)

A

Written commentaires on the law.

///More Context\\

“In the context of law, ‘doctrine’ refers to written commentaries that legal experts produce to analyze, interpret, and explain various aspects of the law. These written commentaries help clarify legal concepts, provide insights into recent legal developments, and offer critiques or suggestions for improving existing laws.”

25
Q

Custom (6 elements of law)

A

a. A tradition or usage accepted by a community
b. Accepted by court provided no conflict with existing statute
c. Can be made into statute

//// More Context \\

Custom in law is a tradition or practice accepted by a community. Courts can recognize and enforce it as long as it doesn’t conflict with existing laws. Sometimes, customs can even become official laws if they’re widely accepted.

26
Q

Administrative laws (6 Elements of Law)

A

a. Administrative Boards empowered by statute to pass regulations ie: CRTC, CSST, etc..

||| MORE CONTEXT |||

Administrative laws are rules and regulations created by specialized government boards established by statute, such as the CRTC or CSST. These rules have legal authority and govern specific areas or industries.

27
Q

Third Element - Administration & Enforcement

A

How do we determine which court will hear a case?
1. Nature of the case (type of case and amount of money involved)
2. Geography (location of issue or defendant)

28
Q

The court System

A
  1. Municipal Court
    a.Municipal by-laws (traffic, zoning, taxes)
    b.Minor criminal matters (mischief, theft under $1000)
  2. Small Claims Court
    a.No lawyers
    b.Cases no more than $15000
    c.Business must be represented by an employee.
    d.Not available to business with more than 10 employees
    e.Employee can be lawyer
    f.Creditor can reduce debt to sue at this level (forfeits remaining debt)
    g.No appeals
  3. Administrative Tribunals (Boards)
    a.Enacted by administrative regulations
    b.Internal review mechanism of Administrative decisions
    c.No appeals usually
  4. The court of Quebec: (Provincial or Territorial Court)
    a.All cases up to $85,000
    b.Except alimentary pension and federal cases
    c.Appeals to Quebec Court of Appeal
    d.No appeals for cases under $60,000
  5. Superior Court
    a.Court of first instance
    b.All cases over $85,000
    c.All cases not assigned to other courts.
    d.Has superintending and reforming power over lower courts and corporations.
  6. The Court of Appeal
    a.7 Judges (3,5 or 7 will hear a case)
    b.Decisions based on majority present.
    c.Apply for leave (permission) to be heard.
    d.Can argue error of law or error of fact.
  7. The Supreme Court of Canada
    a.9 Judges(3,5,7 or 9)
    b.3 from Quebec
    c.With leave (permission)
    d.Error of Law of Error of Fact
29
Q

The legal Profession

A

_ Judges
_ Lawyers
_Notaries
_Mediators / Arbitrators

30
Q

Constitution & Constitution Act

A

The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982. It is the supreme law of Canada.

31
Q

Judges

A

a.Selected by government.

b.The court system is adversarial not inquisitive(means they don’t investigate or proactive in seeking evidence), except Small Claims Court(because its citizens and no lawyers, so they will be more proactive in seeking evidence).

32
Q

Lawyers

A

a. Must be a Member of the Quebec Bar

33
Q

Notaries

A

I. Can give advice, notaries and lawyers went to the same law school, lawyers went 6 months to the bar and notaries went 8 months to the notaries chamber.
II. Difference between the 2 is that the lawyer has the exclusivity to litigation, if a case is contested only a lawyer can represent you not a notary. (Notary has the ability to create a type of document called an authentic document) (Notaries can also marry people)
a. Can’t represent in court, except non-contested issues.
b. Exclusive right to prepare certain contracts.
c. Produce authentic documents, which “make proof of their own contents”

Notaries are responsible for important documents such as when there is a sale of a house, or when business has important legal documents. Or funerals.

34
Q

Mediators / Arbitrators

A

a.Can’t represent in court.
b.Objective third party

COMM 315 (1 decks)

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