MODULE 1: INTRO TO THE LEGAL SYSTEM

1. Describe the essential sources of legal rules.

2. Explain who makes legal rules.
3. Describe the basic divisions in the Canadian legal system.
4. Describe the basic structure of the Canadian court system.
5. Explain the fundamental ideas behind an adversarial trial system.

-  is a legal system used in the common law countries where two advocates represent their parties' case or position
before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass
judgment accordingly.

6. Summarize the basic rules regulating the interpretation of statutes and court decisions.
7. Explain the concept of stare decisis.

WHAT IS LAW? (1)

- The publicly prescribed rules that we must follow, failing which we may suffer some adverse
consequences
o i.e. jail, pay compensation, court order cease and desist, etc.
- A reflection of the common values of society
o All laws should have some connection to some common value that we as a society hold
- The process by which disputes are solved
o Answers aren’t only clear, have to be argued in court overtime
- ‘law is a moving target’… develop and change overtime

SOURCES OF LAW? (2)

“Courts and the legislature are the primary sources of law”

Statutes:

- Broad and broadly applicable rules passed by legislatures

- Highly diverse
- Can be enacted in anticipation of future events
- Can do things that court decisions or other sources of law can’t
o They can anticipate future problems and try to address them before they arise
 i.e. environmental laws to prevent future damage

Regulations (‘subordinate legislation’):

- detailed rules refining, applying or further describing statutory statements

o statutes are generally drafted in general terms, i.e. employers must have a safe
workplace but what is that exactly? What does the employer/employee have to do?
o Passed by Governor-In-Council
o Flexible or easy to enact regulations, and easily hidden?
o Power comes from the legislatures, but it is delegated to the governments to create and
develop the detailed rules. They are just given the general principles
 - Ex. Ontario Employment Standards Act
o Part VII, s.22. (1) an employer shall pay an employee overtime pay of at least one and
one-half times his/regular rate for each hour of work in excess of 44 hours in each week
or, if another threshold is prescribed, that prescribed threshold
o Ex. Of a threshold is 141. The Lieutenant Governor may make regulations for carrying
out the purposes of this act. and may make the following regulations:
 1. Prescribing anything for the purposes of any provision of this act
 2. Exempting any class of employees or employers from the application of this
act, section or provision of it
- Basically put: the government (LG) is given the power to simply say yes the employment
standards act says this, but we are going to deem that part of the act or all of it doesn’t apply to
some people or corporations.
o Another example: government added regulation for workers packaging fresh fruits or
vegetables… overtime is given at excess of 50 hours/week

Common Law/Case Law:

- ‘Rules’ laid down by the courts

- Based on decisions involving 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
o Based on principle of stare decisis, the idea that like cases should be decided alike
o Court decisions guide the determination of future similar matters in courts
o Many disputes arise and not many of them have an obvious answer that are found in
statues/regulations
 Instead, the courts have to make the decision

Constitution(s):

- Supreme law of the country, to which all other laws must conform
- Very broad statements of general principle that are given concrete application by the courts
o i.e. charter of rights & freedoms states everyone has the right to freedom of speech and
expression. But what does that mean?
o These constitutions have to be given meaning by the courts in disputes
o i.e. international law

LAW MAKERS? (3)

Federal Parliament (democratically elected representatives across the country)

- Can make laws that apply across the country

- Restricted: authorized to make laws respecting matters assigned to it by the Constitution Act,
1867
o Certain matters like criminal law, post office, trade
 - Also, technically responsible for government of the territories

Provincial Legislatures

- Laws only apply within the province

- - Restricted: authorized to make laws respecting matters assigned to it by the Constitution Act,
1867
o Certain matters like healthcare, education, property and civil rights

Municipal Councils

- Laws only apply within the municipality (local, create ‘bylaws’)

- Restricted: authorized to make laws only respecting to matters assigned to it by the provincial
government
o ‘Municipal council of Toronto, London, etc.’

Aboriginal Governments

Judges

- Not elected- but are appointed

- Make law in the course of resolving specific disputes
- Do not just make up the law
o Guided by precedent (past), principle, statute, constitution
- Independent and as impartial as possible

DIVISONS OF LAW? (4)

Public law vs Private law

- Public: law relating to relationship between the individual and society and the powers of various
levels of government
o i.e. constitution law, criminal law
- Private: the law relating to relationship between private individuals, corporations and other
entities
o i.e. torts, contracts

Civil law VS Criminal law

- Private lawsuit between individuals etc. VS. prosecution by the government to enforce a public
law

Civil law VS Common law

 - Civil law can also refer to private law system operating in Quebec based on Civil Code
- Common law: whole body of decisions rendered by courts in particular matters (private and
public)
o Applies to private law matters outside of Quebec
o Applies to public law matters everywhere across the country

Substantive law VS Procedural law

- Laws dictating what rights people have VS. laws dictating how rights can be enforced
o i.e. law dictates that you have ownership over a piece of property. If someone
trespasses and you want to enforce your proprietary rights by having them be removed
or pay compensation. You have to sue that person by following the procedural law to
get those remedies

Common law vs Equity

- merged into one court overtime but kept some equitable principles like a trust
o trust is a relationship in which one person has the legal powers over property but are
under an obligation to make decisions in best interest of the 3 rd party

INTERPRETING THE LAW? (5)

Ontario Mushroom Co. v L…

- Ontario Employment Standards Act enacts a higher minimum wage. Per regulation, the
minimum wage provision does not apply to work performed by a person employed on a farm
whose employment is directly related to the primary production of vegetables. Workers argued
that a mushroom isn’t a vegetable
- Decision: A mushroom is a vegetable, under the common terms that people follow

Interpreting Statutory Provisions

- Statutes are often couched in general language i.e. vegetable

- Courts must decide if facts of particular case fit within general language
o Must determine the meaning and applicability of statutory terms
- Often better understood as ‘guidelines’
- Modern Rule of Interpretation
o “Statutory Interpretation is best described as a process that requires the exercise of
judgement in balancing the ordinary meaning of words, the context of the entire statute
and the purpose of the statute”
o The weight given to each of these 3 have changed over time but modern rule is to
balance them equally

Interpreting Court Decisions

- Stare Decisis, “to stand by decisions and not to disturb settled matters”
 o Courts must follow the decisions of higher courts in the same jurisdiction
 i.e. Ontario court of justice must follow decision of Ontario court of appeal
o Courts should decide like cases alike i.e. following precedent
 Creates certainty in the law
 Ensures equity and fairness
- But in a legal system with multiple jurisdictions (both national and international) what is the
relevance of decisions from non-binding courts?
o Courts are only bound to follow the decisions of those courts that are higher in the
SAME judicial hierarchy
o Decisions of other courts, however, can be persuasive depending on a variety of factors
- And how do you know what a case has decided?
o Technically, a case is only binding authority for the legal principles on which the case
was decided (the ‘ratio decidendi’)
o Other statements in the decision are obiter dicta (things said by the way) and thus not
technically binding
o Have to distinguish between the “ratio and the obiter” and is not easy

Ex. Obiter Example

Zamparo v Brisson: “this is sufficient to dispose of the appeal. However, since my colleague has gone
to support the learned trial judge on the alternate ground on which he found Dr. Bisson liable for
plaintiff’s injury, I feel impelled to make a few brief observations on that issue also”

- Ratio is the first part, everything else added extra is obiter

A court is only bound to follow precedent if;

- It deals with the same issue, and

- The facts are sufficiently similar, with no new material facts

Ex. R. v Mara

- Accused was charged with allowing an ‘indecent performance’

o He operated a strip club and allowed for private lap dances
- He defended by saying they are not indecent because of a previous case, Tremblay, where a
strip club owner was charged with keeping a common body house for purpose of practicing acts
of indecency for allowing lap dances. But are the facts of Mara Materially different than the
facts of Tremblay? Supreme Court of Canada held they were different due to public nature

R. v Ancio
Higher court made a decision then 20 years later a lower court is faced with the same circumstances
but believes the other court got it wrong, can it decide differently? Probably not. But the supreme
court of Canada can but is usually reluctant to do so.

- This appeal involves a consideration of the mental element required for proof of attempted
murder, the subject of this Court’s earlier judgement in Lajoie
o Person must be found that they were actually trying to kill someone. In Lajoie, not
required. In Ancio they changed their mind and it is required
o “For these reasons, it is my view that Lajoie should no longer be followed”