Lesson 1

Question 1

What is law?

Answer 1

• A set of rules and principles
• To govern conduct of society
• Promotes goals of peace, order and good governance
• Should be in written form: if laws are not in written form, there is a risk of unfairness in application.
• Adopted by government (lawmakers)

Question 2

Difference between law and justice?

Answer 2

• Law is a set of rules to maintain order and provide fair treatment to all.
• Justice is the process of applying the law.
• Law is enforced by the courts (judges).
• Judges need to be respected in order for people to have faith in their decisions.
• Justice has to be perceived by the public as rendered fairly.

Question 3

Difference between law and ethics?

Answer 3

• Ethics are moral values, our personal views on what is right and wrong.
• Ethical principles are not decided by government lawmakers.
• Society’s ethical views on appropriate behaviour and acceptable conduct changes over time.
• Changes in ethical beliefs held foster changes to the law (laws will change to reflect changes in society’s views over time).
• Laws are often slow to change since lawmakers must deal with conflicting ethical views on their constituents (concern for government is you might gain and lose votes of certain groups of constituents).
• Laws set out defined standards and are enforced by the courts (e.g., legal minimum wage rate).
• Ethical principles are subjective in nature and are not enforced by the courts (e.g., is the minimum wage rate fair?).

Question 4

What is private law?

Answer 4

Deals with the relationships between persons.
- Contractual responsibility (obligations in a contractual situation)
- Non-contractual responsibility (civil, duty under the law not to injure)
- Does not involve the government acting in its official capacity (private law does cover the actions of government where the government is acting in a commercial capacity, e.g. government is an employer or is purchasing goods and services).

Question 5

What happens in a breach of private law?

Answer 5

Compensation for bodily, moral, and material injury (damage).
- Looks at actual and direct damage you have suffered.

Question 6

What is public law?

Answer 6

This course only deals with issues of private law.
Deals with the relationship between the government acting in an official capacity and its citizens.
- Enforcement of citizen’s duties to the sate, i.e., criminal law and income tax.
- Breach of public law: punishment (for not respecting public law, and to set precedence for others).

Question 7

What is civil law?

Answer 7

Deals with matters under Quebec provincial jurisdiction.
- Historically based on the private law used in France prior to the 1760s.
- French law continued to apply after the colonies were ceded to Britain.
- All general principles of law are collected and codified into one rule book known as a Civil Code.
- When faced with a legal question, lawyers and judges refer to:
1. Civil Code
2. Jurisprudence (previous court cases)

Question 8

What is common law?

Answer 8

Deals with Federal laws that have common application all across Canada, also applies in all other Canadian provinces for matters under provincial jurisdiction.
- Historically based on the British law system.
- Under the British system general principles of law were not codified into a Civil Code.
- When faced with a legal question, lawyers and judges refer to:
1. Jurisprudence (previous court cases) in order to determine how judges treated similar situations in the past.
2. Statues (law) would be examined.

Question 9

What is substantive law?

Answer 9

Sets out the specific rights and responsibilities that persons are bound by.
Example: Civil Code, consumer protection act.

Question 10

What is adjectival/procedural law?

Answer 10

This course only deals with issues of substantive law.

Sets out rules on how substantive laws should be applied.
Example: Code of Civil Procedure sets out the steps to take and the order to file documents when instituting a lawsuit, there are time delays that have to be respected.

Question 11

What is litigation?

Answer 11

• The process of going to court.
• The formal procedure by which a person takes a court action against another person to claim damages/recover a debt/enforce an obligation.
• Litigation is also referred to as a lawsuit.

Question 12

What are: creditor, debtor, plaintiff, and defendant?

Answer 12

Creditor: the person to whom a debt is owed.
Debtor: the person who owes a debt/obligation to another.
Plaintiff: the person who initiates a lawsuit (litigation) against his/her debtor (usually creditor.
Defendant: the person against whom the lawsuit is taken (usually debtor).

Question 13

What is a class action?

Answer 13

Where multiple persons have a similar claim against a common defendant, where the proof of one person’s claim will be sufficient to prove the damages suffered by all plaintiffs.

Question 14

What are the benefits of a class action?

Answer 14

• Saves court time, one lawyer represents all of the plaintiffs collectively, presents proof once.
• Saves legal costs to plaintiffs, facilitates access to court for those who may not be able to afford a lawsuit on their own.

Question 15

What is the general rule regarding where to institute a lawsuit?

Answer 15

The plaintiff (creditor) sues the defendant (debtor) in the city in which the defendant is domiciled.

Question 16

What happens if the plaintiff and defendant live in different cities, provinces, or countries?

Answer 16

If the lawsuit is based on breach of contract, then:
- the parties can stipulate in the contract which court (city) will be competent to hear the case. The clause is called the choice of venue (forum).
- the parties can stipulate in the contract which law will apply to govern the contract. This clause is called choice of law.
- Can choose either regions law or a totally separate region’s law.

Question 17

What is prescription?

Answer 17

• After a certain lapse of time, from the date that the obligation was due or from the date that the damage was caused, a creditor will not be permitted to take a lawsuit to enforce his/her rights.
• Under common law this is referred to as a limitation period.
• General rule under the civil code of quebec for breach of contract and for non-contractual liability: prescription 3 years or less.
• Must check rules of prescription if you want to sue to check if your right to sue has not been prescribed.

Question 18

What does federal authority include?

Answer 18

• criminal
• currency/banking
• immigration
• universities
• IT property (intellectual)
• apply the same way across Canada, won’t be dealing with very many laws under the federal government authority.

Question 19

What does provincial authority include?

Answer 19

• property
• ownership
• civil rights
• contracts
• employment law
• non-contractual responsibility (civil responsibility)
• civil code of quebec deals with issues under the authority of the government of quebec.

Question 20

What are the 4 sources of law available to assist judges in rendering a decision?

Answer 20

1. Statutes: written laws adopted by the government, provincial or federal.
2. Jurisprudence (case law): court judgements, decisions rendered by judges interpreting statutes or making new law if the statutes are silent (previous decisions judges have already made, look at previous cases for help).
3. Doctrine: articles/essays written by legal experts analyzing particular areas of legal concern, especially relevant in areas of law which are new and emerging (example: internet transactions, liability for defamation on social media, cyber bullying).
4. Custom and Usage (Tradition): commonly accepted historical practices used in a particular community, or practices used by the same parties in previous transactions, can look for a pattern of previous activity and that can be relevant in interpreting how a transaction should be interpreted today.

Question 21

What is the quebec court system?

Answer 21

There are 3 distinct levels:
1. Trial Court (court of first instance)
- two parties, one judge, trial, witnesses, etc.
- the “trial” court that we see on TV.
- divided into two specific courts: court of quebec and quebec superior court.
2. Quebec Court of Appeal
- decisions from both the previous courts would go to quebec court of appeal.
3. Supreme Court of Canada
- common, final, appelant court.
- hears appeals from all of the courts of appeals from all of the provinces in Canada.

Question 22

What are the characteristics of the Trial Court?

Answer 22

• All lawsuits start here (aka court of first instance).
• Cases are heard by one judge.
• In Quebec, civil law court cases have no trial by jury (non-criminal cases). Only by the judge alone. This is unlike the other provinces or in the states (common law, always a jury for civil cases in common law).
• Plaintiff vs. Defendant
• Approximate 4-year time frame from the date the lawsuit is filed until the judgement is rendered.

Question 23

What are the 2 divisions of authority between trial courts?

Answer 23

1. Court of Quebec:
   - judges appointed by the provincial government.
   - handles all monetary claims for an amount greater than $15,000 and less than $85,000.
   - Small Claims Court: a branch of the court of quebec. Claims for an amount of $15,000 or less. Plaintiff must be an individual or a company with 5 or less employees. There is no appeal, no lawyers, judge effectively acts as an arbitrator (hear arguments, ask questions and render a final decision, which cannot be appealed).
2. Quebec Superior Court:
   - judges appointed by federal government
   - deals with claims for an amount equal or greater than $85,000.

Question 24

What are the characteristics of the Quebec Court of Appeal?

Answer 24

• Cases heard by 3 judges and decision by majority not by unanimity.
• Appellant (the party who is appealing the trial court decision) vs. Respondent.
• Will hear appeals from both trial courts.
• Approximate 3-year time frame from the date the trial court rendered its judgement.
• Just because you aren’t happy with trial court decision does not mean you can just get an appeal, 2 factors to get an appeal:
  1. Grounds for appeal: judge made a material error in interpreting the facts or the law.
  2. Right to appeal:
• automatic right of appeal where the object in dispute in the trial court is equal or greater than $60,000
• with permission from the quebec court of appeal in all other cases (not often granted).

Question 25

What are the characteristics of the Supreme Court of Canada?

Answer 25

• Highest court, no appeal beyond.
• Cases usually heard by all 9 judges and decision by majority not by unanimity.
• Appellant (the party who is appealing the quebec court of appeal decision) vs. Respondent.
• Approximate 3-year time frame from the date the quebec court of appeal rendered its judgement (10 years now from date you first filed your court documents is how long it takes for it to work its way through the whole court system).
• Special cases: can be much quicker (less than a year), available in very special situations, but rare.
• Hears the appeals from the courts of appeal of all provinces and territories (very busy).
• Grounds for appeal (same as quebec): judge made a material error in interpreting the facts or the law. Supreme court can modify a court decision, or modify a trial decision, but their judgement will be final.
• Right to appeal:
• in all cases, only with permission from the supreme court of canada (no automatic permission here).
• as a general rule, the supreme court of canada will respect the decisions of the provincial courts of appeal (generally refuse request to appeal).
• the supreme court of canada may agree to hear a case where a new law, that the supreme court of canada has not ruled on before, is at issue.
• supreme court of canada may agree to hear cases involving issues of public order and national importance and those dealing with potential charter of human rights infringements.
• The amount of money in dispute is not a relevant factor in deciding if the supreme court of canada will hear a case.