Week 1: Legal Environment

Question 1

What 3 branches is the Canadian Legal System divided into?

Answer 1

The Canadian Legal system is divided into 3 branches:
1. The legislative branch creates law in the form of statues and regulations

2. The executive branch formulates and implements government policy and law
3. The judicial branch adjudicates on disputes

Question 2

What is the supreme law of Canada

Answer 2

Constitutional law - the supreme law of Canada - is charged with ascertaining and enforcing limits on the exercise of power by the branches of government. Also charged with upholding the values of a nation

Question 3

What values is the constitutional law tied to?

Answer 3

Values are tied to the political philosophy known as liberalism - political philosophy that emphasizes the individual freedom as its key organizing value

Question 4

How does the 3 branches of law impact businesses

Answer 4

Legislative branch = Passes laws that have an impact on business operations (could be favorable or could result in a closure)

Executive branch = implements and generates policies that may be directed at a business

Judicial branch = provides rulings that not only resolve existing legal conflicts but also impact on future disputes

Question 5

What are the key elements of the Canadian Constitution

Answer 5

Constitution Act, 1867 - part of which divides legislative power between the federal and provincial governments

Canadian Charter of Rights and Freedoms - identifies the rights and freedoms that are guaranteed in Canada. The documents provide the framework and values informing Canada’s system of government

Question 6

Constitutional conventions

Answer 6

Constitutional conventions- more of a code of ethics that governs the political process, not binding in a way that the constitutional rules contained in legislation would be

Question 7

key components of the charter of rights and freedoms

Answer 7

Judicially enforceable guarantee that the government will act consistently with the values associated with a liberal democratic state. There are two protections that are relevant to business

Fundamental Freedoms - everyone has the following fundamental freedoms Freedom of conscience and religion  Freedom of thought, belief, opinion and expression, including the freedom of press and other media communication  Freedom of peaceful assembly  Freedom of Association 

Equality Rights - Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and without discrimination based on race, age, gender, sex., etc

Question 8

How do you determine if something is unconstitutional

Answer 8

How is something unconstitutional - must determine whether it violates a Charter right. The charter governs the relationship between the person and the state restraining government action that is discriminatory

Question 9

give examples of statute law and jurisdiction in canada & why it is divided

Answer 9

Each level of government has jurisdiction (the power that the government has to enact laws) within its proper authority or sphere.

Why is it divided - because Canada is a federal state which means that government power is split between the central, national authority (the federal government) and regional authorities (the provincial governments)

Federal: Interprovincial/International Trade and Commerce, Postal Service, National Defense, Navigation and Shipping, Criminal Law, Banking ex.,
Provincial: Hospitals, Administration of justice, local matters (ex., highway regulation), incorporation of provincial companies ex.,
Municipalities: Zoning, licensing ex.,

Question 10

Exclusive Jurisdiction

Answer 10

Exclusive Jurisdiction - jurisdiction that one level of government holds entirely on its own and not on a shared basis with another level (ex., the Criminal Code)

Question 11

Concurrent Jurisdiction

Answer 11

Concurrent Jurisdiction - Jurisdiction that is shared between levels of government (ex., the Environment)

Question 12

Bill vs bylaw

Answer 12

Bill - proposed legislation that is going through the process of becoming law

Bylaws - laws made by the Municipal level of government

Question 13

Executive branch of government: Formal Executive

Answer 13

Formal Executive - branch of government responsible for the ceremonial features of government - significant role in the legislative process which is represented by the Governor General or Lieutenant Governor (Queen’s Principal Representative); the FINAL step in creating statute law
Ex. Federally its the Prime Minister and Provincially its the Premier

Question 14

Executive branch of government: political executive

Answer 14

Political Executive - branch of government responsible for day to day operations, including formulating and executing government policy as well as administering all departments of government. Typically the level of government that businesses will lobby to secure favorable treatment under legislation

Question 15

what are the 3 systems of courts in canada

Answer 15

Judges operate within a system of courts which have 3 basic levels:
Trial
Intermediate appeal
Final appeal

Question 16

two types of trial courts

Answer 16

Trial Courts are of two types:
Inferior Court - presided over by a judge appointed to the provincial government. Organized by type of case such as Criminal, Family, and Civil (sometimes called Small Claims Court)

Superior Court - judges are appointed by the Federal government - have the jurisdiction to handle claims involving a unlimited monetary amount and are for more serious criminal matters

Question 17

what do judicial decisions create

Answer 17

Judicial decisions create what we call common law
Such decisions have as much force of law as a piece of legislation drafted, debated, and passed by an elected government body
Appeal courts generally take the lead in creating new law but lower courts can and do as well (although it often takes an affirmation from a relevant higher court to confirm broad acceptance of a legal principle created by a lower court)

Question 18

two main sources of law in Canada

Answer 18

There are two main sources of law in Canada:
Statute Law - legislation
Judge Made Law - is the end product of disputes that come before the judiciary. To resolve a legal conflict, a judge renders a judgment (decision/formal ruling). The body or collection of Judge-made law as recorded in those judgements is called the common law

Question 19

what two rules can a judge apply when resolving a legal dispute

Answer 19

When resolving a legal dispute a Judge can apply 2 kinds of rules:
Common law rules - more confining, ridgid, predictable
Rules of Equity - flexible, discretionary, and individualized; evolved to provide assistance to the deserving person who would otherwise would not receive adequate help under the strictly applied rules for common law

Statute law vs judge made law

Question 20

domestic law vs international law

Answer 20

Domestic Law - internal law of a given country and includes both statute and common law. Domestic law deals primarily with individuals and corporations and to a lesser extent the state

International Law - governs relations between states and other entities with international legal status, such as the UN and the World Trade Organization. Important source of international law is treaty law. International Law mainly focus on states and international organizations

Question 21

substantive vs procedural law

Answer 21

Substantive Law - refers to law that defines the rights, duties, and liabilities. They are concerned the duty of the government to legislate in accordance with the Charter as well as the right of the plaintiff to challenge the government for failing to meet that standard

Procedural Law - refers to the law governing the procedure or machinery used to enforce rights, duties, and liabilities. For example, the fact that a trial judges decision can be appealed to a higher court is a procedural matter

Question 22

public vs private law

Answer 22

Public Law - describes all those areas of the law that relate to or regulate the relationship between persons and government at all levels. Important aspect is the ability to constrain government power according to rules of fairness. Consider, criminal law, tax law, and administrative law

Private Law - concerns dealings between persons. Consider contract law, property law, tort law, and company law

Question 23

administrative law

Answer 23

Administrative Law - rules created and applied by those having governmental powers. One of the primary legal areas in which government and business interact. Refers to the rules created and applied by various boards, agencies, commissions, tribunals, and individuals. How do administrative bodies exercise their authority? (ex., Canada employment insurance commission processing a claim for benefits)

Question 24

name some alternative dispute resolutions (ADR)

Answer 24

Negotiation
Mediation
Arbitration
Litigation

Question 25

In litigation who is the plaintiff and defendant

Answer 25

Litigation arises when one party brings a legal action against another.
There is a Plaintiff/Claimant - it would sue, initiate legal action
Defendant - the party being sued

Question 26

stage of a lawsuit: pleadings

Answer 26

Pleadings- the formal documents concerning the basis for a lawsuit. Initiates the action by preparing a document that contains the allegations supporting the claim. (plaintiffs allegations against the defendant)
Does not include evidence but outlines the key points that the plaintiff needs to prove at trial in order to succeed
If there are matters in dispute then the defendant will report a formal response to the claim called a defense and ALSO has the option of filing a counterclaim

Question 26

what are the stages of a lawsuit

Answer 26

In superior courts, a lawsuit that goes through the full court process comprises of 4 stages:
Pleadings
Discovery
Trail & Decision
Enforcement

Question 27

stage of a lawsuit: discovery

Answer 27

Discovery - the process of disclosing evidence to support the claims in a lawsuit - both parties ust reval and demonstrate the facts that support their allegations (ex., testimony, documents, email archives)
Undefined timeframe
Purpose is to test the strength of the opposing positions
This stage is when other methods (ex., Negotiation) may be revisited

Question 28

stage of a lawsuit: trail and decision

Answer 28

Trial and Decision - a formal hearing before a judge that results in a binding decision.
Timing depends on the courts and how long it takes the parties to prepare for the formalities of the trial
Burden of proof, the obligation of the plaintiff to prove its case, falls on the plaintiff
The plaintiff must introduce evidence according to established rules and the defense has the opportunity to challenge the plaintiffs evidence and introduce its own to challenge the claim
The judge will identify and apply the relevant legal rules to those factual findings to produce a decision

Question 29

stage of a lawsuit: enforcement

Answer 29

Enforcement - enforcement of judgment awarded to the winning party. Winner must enforce the judgment with the assistance of the court
The judge issues a judgment for a certain amount of money which in turn can be enforced against the loser, known as the judgment debtor
A party who does not accept the trial decision may consider an appeal to the next court in the hierarchy; would include an appellant and respondent