Lesson 1 Flashcards
What is law?
Set of rules and principles that serve the purpose in a democracy it governs the conduct of society
What does law do?
- Promote goals of peace, order and good governance
2.Should be written: if not written risk of unfairness in application - adopted by government
(lawmakers)
Justice
Process of applying the law, where law is the set of rules to maintain order and provide fair treatment to all
Law enforced by
courts/judges
judges need to be
respected: for people to have faith in their decisions
Justice has to be perceived as
rendered fairly (i.e. what if you cannot pay a judge)
Ethics are
moral values, our personal views on what is right and wrong (ethical principals are not decided by the government)
Society’s ethical views on appropriate behaviour:
change over time
Some changes in ethical beliefs
help foster changes to the law BUT laws are often slow to change because of conflicting ethical views of their constituents (might win/lose votes)
Example of ethics
Law sets the minimum wage rate for everybody and ethics will ask if that rate is fair
Private law (FOCUS)
deals with relationships between persons
Example of private law
contractual responsibility , civil liability
Private law does not involve government if
official capacity. Only if he is the employer or the client. Private law does cover the actions where gov is acting in a commercial capacity
Compensation looks for
actual and direct damage that you have suffered: comes form the breach of private law
Public law:
deals with the relationship between the government acting in an official capacity and its citizens
In public law, enforcement of citizen’s duties
to the state for criminal and income tax
Civil law deals with
matters under QC provincial jurisdiction
Why is civil law QC jurisdiction
based on how the private law used in France prior to 1760s, even after the British took over the French, the law stayed
All general principles of law are
collected and codified into one rule book = civil code
In civil law: when faced with a legal question, lawyers and judges will refer to
- civil code
2. jurisprudence
Common law:
refers to federal laws that have common application all across Canada and other provinces
Common law is historically based off
British system law (not codified)
in Common law: when faced with a legal question
- jurisprudence (previous court cases)
2. statutes (law) would be examined
Law can be divided into two kinds
substantive and adjectival (procedural)
Substantive law
set out specific rights and responsibilities that persons are bound by (civil code or consumer protection)
Adjectival/procedural
sets out rules on how substantive laws should be applied such as steps to take, delays
Litigation aka lawsuit
the formal procedure in which a person takes a court action against another person to claim damages/recover a debt/enforce an obligation
Creditor
the person to whom a debt is owed
debtor
the person who owes a debt/obligaiton to another
plaintiff
the person who initiates a lawsuit against his/her debtor
defendant
the person against whom the lawsuit is taken
Class action
multiple persons having a similar claim against a common defendant
In a class action, the proof of one claimant
is sufficient to prove the damages suffered by all plaintiffs
Example of class action
purchaser of a new car that has manufacturing defects
Benefits of class action
- Saves court time, one lawyer represents all of plaintiffs collectively
- Saves legal costs to plaintiffs, facility access to court for those who may not be able to afford a lawsuit on their own
Where to institute a lawsuit, general rule
the plaintiff sues the defendant in the city in which the defendant is domiciled
What if the defendant lives in a different city, province or country?
if lawsuit is based on breach of contract then:
- choice of venue
- Choice of law
Choice of venue
the parties can stipulate in the contract which court will be competent to hear the case
choice of law
the parties can stipulate in the contract which law will apply to govern the contract (can be where on lives, the other or a common practice)
Prescription
a specific delay that you have to start a lawsuit form the time the damage was caused
If the prescription is done
the creditor will not be permitted to take a lawsuit to enforce his/her rights
In common law a prescription is a
limitation period
General rule under civil code of qC for breach of contract + non-contractual liabilitiy
the prescription is under 3 years
the power to pass laws is divided
federal and provincial depending on area of law; could be exclusive and also shared
Federal laws include:
criminal, currency/banking, immigration, universities, IT property
Provincial laws include
FOCUS: property, ownership, civil rights, contracts, employment, non-contractual responsibility (civil responsibility)
Sources of laws
- Statutes
- Jurisprudence
- Doctrine
- Customs and usage
Statutes
Written laws adopted by the government
Jurisprudence
(case law) court judgements, decisions rendered by judges, interpreting statutes, or making new law if the statute is silent
Doctrine
articles/essays written by legal experts analyzing specific areas of legal concerns (new)
examples of doctrine
Internet law: transactions, duties, responsibilities, jurisdiction
Cyber-bullying/defamation on social media
Customs and usage
traditions: commonly accepted historical practices used in a particular community , based on this we could see how a transaction would be interpreted today
QC legal system
- Trial court
- QC court of appeal
- Supreme Court of Canada
Trial court
court of first instance: where you have two parties and one judge, no trial by jury
How long does trial court take
4 years
Trial courts two sepcific courts
Court of QC and QC superior court
Court of QC
appointed by provincial government
Claims amount for court of QC
between 15000 and 85000
a branch of court of QC
Small claims court
Small claims court
claims for 15000 and less, individuals or companies with 5 or less employees, no appeal and no lawyers, judge acts as arbitrator
QC superior court
appointed by federal government
QC superior court deals with amount
grater than 85000
QC court of appeal
decisions previously made by court of QC and QC superior court
how many judges court of appeal
3 judges: majority, no need for unanimity
How much time take to court of appeal
3 years
grounds for appeal
judge made a material error in interpreting the facts of the law, made serious error
right to appeal
- automatic right to appeal: where the object in dispute equal or bigger than 60K or 2. permission of QC court of appeal for all cases
Supreme Court of Canada
common and finale appellant court from all court of appeals from all provinces of Canada. No other court can challenge it
how many judges in Supreme court
9 (generally all sit) : majority, no need for unanimity
how do we call the parties in Supreme Court
appellant and respondant
how many years does it take in supreme court
about 3 years
How many years total if you go through all courts
10 years some exceptions for special cases
Grounds for appeal in supreme court
same as QC court of appeal: have to show that a judge made a material error
is there automatic right of appeal for supreme court
no, permission required for every case
General rule of supreme court
respect decision of provincial court
Reasons for Supreme Court to agree to hear cases
- new law that the Supreme Court of Canada has not yet ruled on
- issues of public order and national importance
- those dealing with potential human right infringement
* amount of money in dispute is not a factor
