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2101 Law > Module 1 : Introduction to the Legal System > Flashcards

Module 1 : Introduction to the Legal System Flashcards

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1
Q

What is law? (4)

A
  1. the publicly prescribed rules that we must follow, and if we fail to follow we may suffer some adverse consequences
  2. a reflection of common values in society
  3. the process by which disputes are resolved
  4. a moving target (not static)
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2
Q

Sources of law

A
  1. statutes
  2. regulations (‘subordinate legislation’)
  3. common law/case law
  4. Constitution
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3
Q

Sources of law…

Statutes

A
  • broad and broadly applicable rules passes by legislatures
  • what most people think of when they think of where law comes from
  • highly diverse (thousands)
  • Can be enacted in anticipation of future events (address problems before they arise)
  • before it becomes a statute, an act proceeds through the legislature in the form of a bill
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4
Q

Sources of law…

Regulations (‘subordinate legislation’)

A
  • detailed rules refining, applying or further describing broad statutory statements (making statutes more detailed)
  • created and passed by the governor-in-council or cabinet (this power comes from the legislatures)
  • flexible regulations (we can change them more frequently)
  • easily hidden?… government can change things without getting it approved or much public scrutiny
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5
Q

Example of a regulation

A
  • Ontario employment standards act…
  • the lieutenant governor in council can make regulations for carrying out the purposes of this act and may make the following regulations…
  • (1) prescribe the threshold (for certain jobs they made it more hours until overtime pay)
  • (2) can say the act doesn’t apply to certain people (certain jobs didn’t get the overtime)
  • and they did
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6
Q

Sources of law…

Common law/case law

A
  • ‘rules’ laid down by the courts
  • based on decisions resolving particular disputes
  • each decision determines the law as it applies to that dispute and (in theory) helps determine the law applicable to other similar matters
  • deals with changing social/legal conditions as they emerge
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7
Q

common law/case law is based on the principle of stare decisis…

A
  • the idea that alike cases should be decided alike
  • court decisions guide the determination of future similar matters by courts
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8
Q

Sources of law…

Constitution

A
  • supreme law of the country, and all other laws must confirm to it
  • very broad statements of the general principles that are given concrete applications by the courts
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9
Q

Law makers (who makes the law?)…

A
  1. federal parliament
  2. provincial legislatures
  3. municipal councils
  4. aboriginal governments
  5. judges
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10
Q

Law makers (who makes the law)…

Federal parliament

A
  • can make laws that apply across the country
  • Authorized to make laws respecting matters assigned to it by the Constitution Act, 1867
  • also technically responsible for government of the territories
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11
Q

Law makers (who makes the law)…

Provincial legislatures

A
  • laws only apply within the province
  • authorized to make laws respecting matters assigned to it by the Constitution Act, 1867
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12
Q

Law makers (who makes the law)…

Municipal councils

A
  • laws only apply within the municipality
  • authorized to make laws respecting matters assigned to it by provincial government
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13
Q

Law makers (who makes the law)…

Aboriginal governments

A
  • arrangements made with aboriginal communities that they can govern themselves
  • with respect to various matters
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14
Q

Law makers (who makes the law)…

Judges

A
  • judges make laws in the course of resolving particular disputes
  • they are not elected… they are appointed
  • do not (usually) just make up the law… instead they are guided by a variety of sources… precedent (prior decisons), principles, statute and constitution
  • Independent and as imparial as possible
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15
Q

Divisions of law…

Public vs. private

A
  • public… law relating to relationship between the individual & society and the powers of various levels of government… matters of public concern (everyone) e.g. constitutional law, criminal law
  • private… law relating to relationship between private individuals, corporations and other entities… only of private concern e.g. torts, contracts
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16
Q

Divisions of law…

Civil vs. criminal

A
  • civil… private lawsuit between individuals, etc.
  • criminal… prosecution by the government (crown) to enforce a public law
17
Q

Divisions of law…

Civil law vs. common law

A
  • civil… private law system operating in Quebec based on a civil code
  • common … whole body of decisions rendered by courts in particular matters (private and public)… applies to private matters outside of Quebec & applies to public law matters everywhere
18
Q

Divisions of law…

Substantive vs. procedural

A
  • substantive… laws dictating what rights ppl have (e.g. law saying you have ownership over a specific peice of property)
  • procedural… laws dictating how rights can be enforced (e.g. how you go about sueing somoene who did smth to ur property… procedure to do so)
19
Q

Divisions of law…

Common law vs. equity

A
  • these are no longer an official division… but
  • equitable doctrines continue to have importants… e.g. trusts
20
Q

Court cases…

The Court System

A
  • we have a hierarchical court system in which the decision of higher courts are binding on lower courts… both in the matter at hand and for future cases (stare decisis)
  • court cases almost always start in the lower (trial) courts and , and if appealed, move up to the higher courts
  • different lower courts are assigned original jurisdiction over different matters
  • different courts fulfill different functions (fact finding trial court [we have 3] vs. review by appeal courts)
21
Q

Court cases…

Ontario court structure…

A
  • highest court is the Ontario Court of Appeal (binding to Supreme court)
  • below is the Superior Court of Justice (civil matters & more serious criminal matters)
  • below is the Ontario court of Justice
22
Q

court cases…

Adversarial system

A
  • we operate the adversarial system… described by the ontario court of appeal in the Phillips v Ford Motor case
  • in an adversarial system the judge plays a more passive role and we assign that to the parties (plaintiff, defendent, etc.) to get and present necessary evidence to the court
  • it is not a scientific inquiry and the deicision is to be based on the evidence given by parties
  • judge is not an advocate for either side and needs to be a neutral arbiter
  • distinguished from the inquisitorial system
23
Q

Interpreting the law…

The law, through various mechanisms, sets down various rules…

A
  • But… those rules, or thier application to a future matter, are not alwasy clear
  • the rules must be interpreted
  • there are rules as to how those rules should be interpreted
24
Q

Interpreting the law…

Intepreting statutory provisions

A
  • statutes are often in general language
  • so, the courts have to decide if facts of particular cases fit within the general language
  • this involves… (1) determining the meaning of statutory terms and (2) determining the applicability of statutory terms
  • there is no set formula for determining legislative meaning… ‘rules’ of statutory intepretation are better understood as guidelines
25
Q

Interpreting the law…

statutory interpretation is best described as a processs that requires the exercise of judgement in…

A
  • balancing ordinary meaning of words, context of entire statute and purpose of the statute (modern rule of interpretation)
  • the weight given to each of these elements in a certain case is not concrete, so judgement & arguement are critical
26
Q

Interpreting the law…

Interpreting case law (court decisions)… Stare decisis

A
  • stare decisis… to stand by decisions and not to disturb settled matters
  • courts must follow decisions of higher courts in same jurisdiction and decide like cases alike (following precedent)
  • this creates certainty in the law (fairness & equity)… with this ppl can organize their legal affairs to avoid disputes and try to settle disputes once they arise
27
Q

Interpreting the law…

Interpreting case laws… in legal system with multiple jurisdictions, what’s the relevance of decisions from non binding courts?

A
  • courts are only bound to follow the decisions of the courts higher in the same juducial hierarchy
  • decisions of other courts can be persuasive tho, depending on a variety of factors
28
Q

Interpreting the law…

Interpreting case laws…how do you know what a case has decided?

A
  • a case is only binding authority for the legal principles on which the case was decided (ratio decidendi)
  • other statements in the decision are obiter dicta (things said by the way) and this is also not technically binding… can be persuasive tho
  • Distinguishing between the two is not always easy
29
Q

Interpreting the law…

Intepreting case law… a court is only bound to follow precedent if…

A
  • it deals w the same issue
  • the facts are sufficiently similar, with no new material facts
30
Q

10 steps to reading & briefing an online case

A
  1. read w legal dictionary
  2. identify where decision fits in court structure in hierarchy
  3. identify chronology which had led to decision ( any previous?)
  4. get the parties straight
  5. identify judges and the way they contribute
  6. be alert to the reputation and career of the judge
  7. read the case more than once
  8. sort out factual disputes and identify key facts
  9. identify legal issues (plaintiff claim) and result that the court reaches
  10. be critical of what you are reading

2101 Law (8 decks)

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