Test 1: Ch1-2-3 Flashcards
What is the definition of the law?
A system of rules and regulations that govern a community and enforced by a political authority and its legal system.
Where did law come from? (origins)
Specialization of skills over time forced greater interaction and dependency between people
What does law provide?
- Security of each member
- Certainty for future planning
What was the first example of written law
Code of Hammurabi engraved in a stone column
Why did laws increase in complexity? (3)
- Population increased
- Technological advances.
- Immigration patterns
What are the roles of law in society today? (3)
- ensure security
- enforce standards of conduct
- maintain status quo
why doesn’t law always equal justice?
- the law is written
- enforced by judges
- laws are decided upon by a majority
Ethics definition
a set of principles or moral values of a society, distinguishing right from wrong
What is the difference between law and ethics?
law can reflect ethical values, but the two can also conflict
T/F: Ethics plays a balancing role to law
True: law is founded in moral values, so need ethics to apply
Law is not always clear, so use ethics to develop
Law may not exist to address new issues, so ethics must mold
When does an ethical value become law?
- When it gains a large consensus amongst the population
- When it addresses an issue considered a serious threat to the wellbeing of the community
(Private/Public) Law: Rules that regulate the legal relationship between individual citizens
Private
(Private/Public) Law: Rules that govern the relationship between citizens and their state
Public
Do these apply to private or public law:
Contract law, commercial law, employment law, property law
Private law
Do these apply to private or public law?
Criminal law, highway law, tax law, bankruptcy law
Public
Is this civil law or common law?
Legislative authority to make law. Legislature codifies laws. Courts simply apply the law. France.
Civil law
Is this civil or common law?
Basis for law is grounded in principle of precedence and case law or jurisprudence. Judge made law. England. Ex: Criminal code in Canada
Common law
What is the law where we can find the “substance” of our rights?
Substantive law
Associate each of the following to either substantive law or adjectival law:
a) Civil Code of Quebec
b) Quebec Code of Civil Procedure
a) Substantive law
b) Adjectival law
What is the name of the procedures to protect substantive law?
Adjectival law
What are the 5 Ws to sue?
Why sue?
What is involved?
Who are the parties
Where do you sue
When can you sue?
Why would someone sue?
Somebody owes you money or an obligation and refuses to perform
What is involved when suing
Start legal proceedings to convince a judge to order the other person to perform obligations.
Begins with an exchange of documents between the parties and then a court appearance.
Who are the parties in a court case?
Plaintiff (person suing) and defendant (person being sued)
if there is more than one plaintiff (many), what is it called?
Class action
Where can you sue? (5)
where:
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 someone?
from the moment we become aware: limited in time
In quebec, what is the most common prescription/statutes of limitation?
10 years
In case of personal injury or damage to property (most common in business), what is the prescription/statutes of limitation?
3 years
in case of municipality for civil liability, what is the prescription/statutes of limitation?
6 months, but you have to wait 15 days
In case of libel/slander, what is the prescription/statutes of limitation?
1 year
In case of execution of judgement, what is the prescription/statutes of limitation?
10 years
What are 3 elements that make up a legal system?
- the legislative mechanism
- laws (sources of law)
- administration and enforcement of laws
Associate the definitions to the terms:
(Legislative mechanism, sources of law, administration and enforcement of laws)
1. a system to impose punishment for breaking a law
2. the rules of behaviour imposed or accepted by society
3. how laws are adopted
- administration and enforcement of laws
- sources of law
- Legislative mechanism
What laws are federal and provincial governments allowed to make?
Federal: Laws that affect several provinces
Provincial: Laws that affect their own province only
What are the 5+ areas the federal government has legislative power over? (Per s.91)
- postal service
- Military and defence
- Currency
- Interest
- Criminal law
and residual powers clause (wtv that wasnt thought of initially)
What are the 5 areas the provincial government has legislative power over? (Per s.92)
- Hospitals
- Municipal Institutions
- Shop, Saloon, Tavern, Auctioneer, and other licences
- Property and civil rights in the province
- Generally all matters of a merely local or private nature in the province
The legislative process:
1. ___ usually introduces laws
2. What are “Private Members Bills”
- Cabinet
- Private member: anyone in the parliament not in the cabinet.
What are the 3 elements in the legislative process? (Quebec and Canada)
- Legislature (House of Commons/Provincial Legislatures)
- Senate (abolished in Quebec)
- Queen (Governor General/Lieutenant GG - Royal Assent)
=> 3 in Canada, 2 in Quebec
What are the 6 sources of Law that develop or restrict new laws
- Constitution
- Statutes
- Jurisprudence
- Doctrine
- Custom
- Administrative Laws
What does section 52 “the supreme law of Canada” mean?
no law can bypass constitution
What are statutes? Are they permanent?
they are laws passed by government. they can be changed at any time by simple majority
Who can change precedence?
highest court + state are the only ones who can change precedence
what is jurisprudence?
philosophy of law
what is a doctrine?
written commentaries on the law
who comes up with doctrines?
usually ex-judges, scholars. make recommendations to set which cases should be the precedence etc.
what is a custom? are they accepted in court? what can they be made into?
a tradition or usage accepted by a community. they are accepted in court provided no conflict with existing statute. can be made into statute
what are administrative laws? why do they exist?
made by administrative boards (ex: CSST) empowered by statute to pass regulations. State is not big enough to make laws on everything
Forum (jurisdiction): How do we determine which court will hear a case?
- Nature of the case (type/amount of $ involved)
- Geography (location of issue/defendant)
what are the 7 courts in the canadian court system?
- Municipal court
- Small claims court
- The court of Québec
- Superior Court
- The Court of Appeal
- Supreme court of Canada
- Administrative tribunals (boards)
What is the municipal court in charge of?
municipal by-laws (traffic, zoning, taxes)
minor criminal matters (mischief, theft under 1000$)
What is the small claims court in charge of? are lawyers allowed?
cases under 15000$. no lawyers allowed: judge acts as lawyer
What are some particularities for businesses in the small claims court?
business must be represented by an employee, who can be a lawyer. not available to businesses with more than 10 employees.
in the small claims court, can the creditor reduce the debt to sue at this level? are they entitled to the remaining debt? can they appeal?
yes they can, but they forfeit the remaining debt, no appeal
What is the Court of Quebec in charge of? Where can you appeal to?
all cases up to 85000$, except alimentary pension and federal cases. Appeals to quebec court of Appeal. No appeals for cases under 60 000$
What is the Superior court in charge of?
Court of first instance. all cases over 85000$. all cases not assigned to other courts.
What is the only court with a jury? in what matters?
Superior court: in criminal matters
Which Court is the court of first instance? what does it mean?
superior court. a court in which legal proceedings are begun or first heard.
How many judges are in the court of appeal?
7 judges (3, 5, or 7 will hear a case)
In the court of appeal, what are decisions based on?
majority present
What court can argue error of law or error of fact?
Court of Appeal
What are the 3 possible outcomes from the court of Appeal?
- Uphold the lower court decision
- Overturn the lower court decision
- Send the case back down to trial
What does “apply for leave to be heard” mean for the court of appeal?
the “applicant” must successfully apply to the Supreme Court of Canada for leave to appeal before the appeal itself can be heard
how many judges are at the supreme court of Canada? How many are from quebec?
9 judges (3, 5, 7, or 9). 3 from quebec
What are the only 2 reasons to access the supreme court?
Error of law or Error of fact
In order to access the supreme court, what do you need?
With Leave (permission)
What are administrative tribunals (Boards) in charge of? Can they have appeals?
Enacted by administrative regulations. internal review mechanism of Administrative decisions. No appeal usually
The court system is adversarial, not inquisitive. What does that mean?
Except for what?
Acts as a referee, only steps up when needed. except for small claims court: no lawyers.
To become a lawyer, what must you be a member of?
the Quebec bar
Can notaries represent in court and if yes in what cases? What do notaries have exclusive right on?
No, except for uncontested cases. They have exclusive right to prepare certain contracts
What does “make proof of their own contents” mean for notaries documents?
they produce authentic documents
can mediators/arbitrators represent in court? what are they?
no. they are an objective third party
What are 2 reasons why democracy has challenges
- Diverging opinions on issues with majority rule over minorities
- trying to balance individual rights with societal objectives
What is the aim of Charters and personal rights legislation?
to keep a balance between individual rights and societal objectives
what does entrenched mean?
For example, the Charter was entrenched in the Consitution, hence protecting the rights
How can you change
a) Statute
b) Charter
a) Simple majority
b) constitutional amendment (7/50 formula)
Which violations of the Charter are protected and not protected?
Protected: Governments (federal, provincial, municipal, any government associated organization and employee)
not protected: violations between private individuals
in what cases can I use the charter to protect my rights in x scenario?
it depends! if the individual/organization is governmental associated, you can. If private individual: no.
What are the 5 categories of rights protected by the Canadian Charter of Rights and Freedoms?
- Fundamental Freedoms (s.2) (freedom of religion, thought, expression, association)
- Democratic Rights (s. 3-5) (Right to vote and run for office)
- Mobility Rights (s. 6) (Freedom to travel and work anywhere in Canada. Also a right to work and profit anywhere)
- Legal Rights (s. 7-14) ( Right to life, liberty, security, and judicial protections)
- Equality Rights (s. 15) (Protection from discrimination)
What are the 3 conditions to discrimination? is it an exhaustive list?
- it causes a differential treatment based on a personal characteristic or doesnt take into consideration the characteristic.
- it is described or associated to what is listed in s.15
- it imposes an unnecessary burden on the person or perpetuates a stereotype.
What is the Notwithstanding Clause? Can it be applied to all rights? Is it permanent?
It is a clause that gives the right to the government to limit rights found in s.2 and s. 7-15 only. It must be renewed every five years and face public scrutiny again (sunset clause)
What is the Oakes test? What is it for? What aspects is it on?
It is a test that allows the government to limit rights if it can demonstrate 2 things:
1. The issue is serious enough
2. It is reasonable (the least intrusive)
What is the difference between the Canadian and the Quebec Charters?
- Quebec Charter can also be used for violations between private individuals.
- Quebec Charter is not entrenched in a Constitution so easier to change
By the Quebec Charter, what are the fundamental freedoms and rights?
s.1 right to life and security
s. 2 right to assistance (except for fear or other valid reason)
s. 3 freedom of expression, opinion and religion, right to associate
s. 4-6 safeguard of dignity and privacy
What are the 3 conditions for someone to take a picture of you?
- permission
- who you are (public sector: legal)
- newsworthy (is it important for people to know about it)
What is discrimination defined as?
an act that nullifies or impairs a right
but only rights listed are protected
What happens if there are discriminatory clauses in a contract?
Per s.13 of the Quebec Charter, they are void.
can someone deny access to public place to someone?
not under s.15 of the Qc charter, except for “undue hardship” proven: action requiring significant difficulty or expense
in what cases can someone ask questions about s.10 in an application form and interview?
if aptitude and qualification related (s. 20)
based on affirmative action program
per s. 18.2, one cannot discriminate against job applicants due to past criminal record if … (2)
Not related to job, obtained a pardon
under what conditions can there be in-equal pay for equal work?
based on aptitudes and qualifications, based on pay equity plans
In what cases does an organization have discretion in hiring?
based on aptitudes and qualifications. if a non-profit community or religious organization
T/F: Insurance and retirement plans allow for discretion
True
section 49 allows victims to sue for: (4)
- Injunction (cessation of violation)
- Material damages
- Moral damages
- Punitive damages (conditions)
In the Multani vs Commission Scolaire MB,
a) What was the appellant’s governing board and council of commissioner’s decision?
b) What was the Superior Court’s reaction to the council of commissioner’s decision? What was their judgment?
c) What was the appellant’s reaction to the Superior Court’s decision? Was it granted?
d) Why could the respondents use the Charter to their advantage in this case?
a) Prohibit the respondent from wearing a kirpan to respect the school’s Code of Conduct, without the possibility to accommodate, and by allowing the respondent to wear a symbolic kirpan.
b) They declared it null and void, and rendered a declaratory judgement allowing the respondent to wear a kirpan by respecting certain conditions.
c) They demanded permission to appeal. Yes, granted.
d) Because the CSMB is a governmental association.
In the Multani vs CSMB case,
a) What was the Court of Appeal’s judgement?
b) What did the Supreme Court say?
a) Initially agreed with the Superior Court’s judgement. But, then, restored to the council of commissioner’s judgement. The Court of Appeal recognized that this would limit the respondent’s freedom of religion, but that it was in the right of their administrative law.
b) The Court of Appeal was wrong in assessing the reasonableness standard. Administrative law here is irrelevant as it violates the Charter. Religious tolerance is an important Canadian value, and with the safety facts + the conditions of this case, the limits suggested by the Superior Court were reasonable.
In the British Columbia vs BCGSEU case,
a) Explain the main issue at hand
b) What was the Court of Appeal’s mistake?
c) What did the Court decide?
d) What are the 3 steps of a BFOR test?
e) What is the difference between an Oakes test and the BFOR test?
f) What was concluded by the Supreme Court?
a) Meiorin was hired as a BC forest firefighter, but got fired due to failing one of the new fitness tests by 49.4 seconds. The issue is about the aerobic standard and discrimination.
b) It mistakenly understood that the standard was necessary to the safe and efficient performance of the work, hence there is no discrimination. However, it was established that Meiroin did not pose a threat to her, her colleagues, or society. Hence, issue of whether the new aerobic standard is discriminatory within the meaning of the Code.
c) Found need for a 3-step test to determine a discriminatory standard: BFOR test.
d) 1: Is the standard rationally connected to the job performance
2: Was it adopted in good faith?
3: Demonstrate the standard is reasonably necessary
e) The BFOR test is for occupation only.
f) it was established that the aerobic test in this case was discriminatory. The appeal was allowed and the order to reinstate Meiorin to her position and compensate for any lost wages was restored.
In the Therrien vs Minister of Justice case,
a) What is the main case scenario?
b) What was the Court of Appeal’s judgement?
c) What did Therrien argue? How did the Court react?
a) Therrien was sentenced in 1970 for one year in prison for assisting 4 FLQ members. He then proceeded to study and practice law for 20 years. During those years, he obtained a pardon. Therrien tried 5 times to be appointed judge, which he finally was. However, his record was discovered and removal process started.
b) CoA held that the appellant knew he could not simply not mention his past when applying to be judge, even with a pardon. He purposefully ignored to mention it.
c) Therrien argued violation of s.18.1 and 18.2. Court dismissed 18.2 because criminal record is not in the s.10 list. Court dismissed 18.2 because of the “nature, characteristics and requirements of the office” Court also found non-discrimination via s.20
In the Syndicat Northcrest vs Amselem case,
a) What is the main situation?
b) What was convened by the Supreme Court?
a) The renters set up succahs on their balconies for 9 days for religious practices. Northcrest claimed danger and property values. They proposed a common succah. They claimed that by signing the building’s by-laws, the renters waived their rights.
b) The appellants were right to use their appartment’s balconies as they wish. An entity not governmental cannot limit someone’s rights. And if it did through a contract, it would need to be very clear.
