Business and Family Law – Lesson One –

Introduction and the Canadian Legal System

Welcome to Business and Family Law!
• This course concentrates on business and family legal issues that are of interest to
financial planners.
▫ Subject matter includes an exploration of business organization, contract, property and
negligence law.
▫ The course examines areas of family law that impact financial planning, including
marriage, marital breakdown, cohabitation, property division, custody, child and spousal
support.

• This week's activities include:

▫ Introducing ourselves
▫ Reviewing learning objectives, the course outline, course supplement, and class structure
▫ Lesson #1: The Canadian Legal System
Introductions
• Professor Sarah Levy
▫ I am a PhD candidate at the University of Oxford Faculty of Law, and my doctoral research will
focus on Canadian sealing activities.
▫ I completed my Articles of Clerkship at the Ministry of Environment, Conservation and Parks at
the Government of Ontario, and have been called to the Bar of Ontario.
▫ I am a graduate of the Juris Doctor and Master of Environmental Studies program at Osgoode
Hall Law School.

• CRN82888
▫ Question for the whole class: what are your majors?
▫ Open question: what interests you about the law, and are there any subjects in particular you
are eager to learn about?
▫ Invitation to post introductions on Discussion Board on BlackBoard
Learning objectives
• Upon successfully completing this course, you will be able to:
▫ Examine the role and importance of law in Canadian Society,
emphasizing the various legal systems in Canada
▫ Explain the tort of negligence
▫ Investigate the components of valid contracts and the various
methods of discharging contracts
▫ Examine the law of real and intellectual property
▫ Explore the different forms of business organization
▫ Discuss and assess areas of family law that should be considered in
a financial plan
Course outline and course supplement
• See BlackBoard: “Course materials” tab
Class structure
• Going forward, class will begin at 9 AM EST unless stated otherwise

• Lecture with polls, questions, and case studies to ensure an interactive learning
environment

• Each lesson will include check-in questions and review questions posted with the
lecture slides on BlackBoard
▫ Check in questions are to guide your learning during class
▫ Review questions are to be taken up after class, and we will go over the ones from the
previous week at the beginning of each lesson

• Office hour?
 LESSON ONE:
THE CANADIAN LEGAL SYSTEM
Learning outcomes
• What is law
• What are the sources of Canadian Law
• What is the hierarchy of law in Canada
• The role of Parliament and the legislatures
• The structure and role of the courts
• The legal process
• Criminal versus civil law
• Other forms of governance e.g. Administrative law
• Alternatives to the court system
What is law?
• Law is a collection of rules and norms
designed to govern social behaviour
and interaction
• Without law we have anarchy
• Thomas Hobbes – life in a state of
nature is “nasty, brutish and short.”

• https://www.iep.utm.edu/hobmoral/
What is not law
• Law and morality are not the same
• Ethics are an element of law but sometimes not written
• Social custom is not law
• All elements govern behaviour but are not enforceable in a court
of law
Law versus the rule of law
• Law is what the courts, codes and legislation indicate the proper course of legal
conduct happens to be
▫ Laws can be changed

• The rule of law is a foundational principle of our society

▫ Law not things such as vigilante justice govern how we mediate disputes
▫ While the laws can change the notion that we live in a society governed by law
does not
• See: https://plato.stanford.edu/entries/rule-of-law/

• Nobody is above the law under the concept of the rule of law
Categories of law
• Substantive law
▫ Legislation
▫ Cases
• Procedural Law
▫ The means by which the legal process works
▫ For example: Ontario Rules of Civil Procedure
▫ https://www.ontario.ca/laws/regulation/900194
Spheres of law
• Public Law
▫ Between the state/ government and individuals
▫ Criminal law
▫ Constitutional law including the Charter of Rights and Freedoms

• Private or Civil Law

▫ Between Individuals and/ or other private actors such as corporations
▫ Tort law
▫ Contract law
▫ Property law
Systems of law in Canada
▫ We have 3 systems of law in Canada
 Legislation and the common law
 The Quebec Civil Code
 Aboriginal Law

▫ This course focuses mainly on legislation and the common law

 This is the system of law that most frequently impacts business
The Constitution
• The Constitution Act, 1982 is the supreme law of Canada
• The Constitution Act includes the Canadian Charter of Rights and Freedoms
• Origins are the British North America Act, 1867 (
https://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t11.html)
• Further modified by the Statute of Westminster, 1931 which gave Canada
control over its own foreign policy (
https://www.thecanadianencyclopedia.ca/en/article/statute-of-Westminster)
• Further modified by the Letters Patent, 1947 which expanded the powers of the
Governor General (
https://www.thecanadianencyclopedia.ca/en/article/letters-patent-1947)
Important Constitutional sections
• Arising from the British North America Act sections 91 and 92 of the
Constitution set out what are known as the Federal and Provincial heads
of Power
▫ These sections define the authority of the two levels of government
▫ Where there is conflict, that is, overlapping authority, the doctrine of
“paramountcy” grants the Federal government final authority over matters
 Logic – a strong federal government is better for a very large country
• The British North America Act came into force very shortly after the
American Civil War
▫ British Authorities wanted to avoid the possibility of a similar type of conflict
between the provinces
The Constitution Sections 91 and 92
• Section 91 sets out the Federal heads of power
• Section 92 sets out the Provincial heads of power
• https://laws-lois.justice.gc.ca/eng/const/page-4.html
• For our purposes, section 92 (13) is most important
• It gives to the provinces control over “Property and Civil Rights in
the Province”
Exceptions to the Charter
• The Canadian Charter of Rights and Freedoms protects individual rights.
These guarantees are not absolute
▫ Section 1 says that Charter rights can be limited if such limits can be
demonstratively justified in a free and democratic society
▫ Section 32 – The Charter only applies to government
• The Charter does not apply to private businesses
▫ Provincial Human Rights codes do however apply
▫ Section 33 – a province can say that ‘notwithstanding’ a courts interpretation
of the Charter that decision will not apply in the province
 Seldom used. Quebec’s English/ French sign law is one of the few examples
where it has been used
The Common Law
• Common law is judge made law
• As a former British colony, Canada inherited the common law system from Britain as
did other former colonies such as Australia, New Zealand, South Africa and the United
States
• It relies on the concept of stare decisis or precedent
▫ Courts are expected to follow previous court decisions on similar matters
 Bound to follow precedent case if:
 Decision made by higher court
 In the same jurisdiction
 Based on similar facts
▫ Courts my distinguish cases on the facts
 In the Common Law FACTS matter immensely
 The courts and the Common Law

• It is the role of the courts to interpret and apply the law

• Trial courts hear all matters
• Courts of Appeal including all provincial courts of appeal and the
Supreme Court of Canada decide which cases they wish to hear
• Appeal courts do not hear a trial for a second time
• Appeal courts address questions of law
• Facts are taken as given based upon the findings of the trial court
Court hierarchy
 Courts of Appeal
• Appeal courts hear cases from trial courts where there has
been an error either in law, or in criminal cases, in the judge’s
charge to the jury
• Courts of appeal do not have to hear all appeals
• Courts of appeal do not hear no evidence
• On the basis of stare decisis a court of appeal’s decision is
bind on all courts within their province of jurisdiction e.g. the
decisions of the Ontario Court of Appeal are binding on all
Ontario courts
• Court of appeal decisions are not binding on other provinces.
However if a matter arises that is similar a appeal court
decision from another province can be persuasive in how
other provincial courts make decisions
• This ensures consistency in the law across Canada
The Supreme Court
• Decides cases of national importance
• Like courts of appeal it gets to decide
which cases it wants to hear
• Supreme Court of Canada decisions
are binding on all Canadian Courts
The role of legislation
▫ Laws can be created by legislative bodies
▫ The doctrine of “Parliamentary supremacy”
 The legislature – Parliament or provincial legislatures can override or modify
the common law or government regulations
 Cannot override the Constitution except for laws enacted utilizing Section 33 of
the Canadian Charter of Rights and Freedoms
 Seldom used in Canada
The Powers of tribunals
• Administrative tribunals may act on behalf of the government in making
decisions and enacting projects
• Administrative tribunals are created through legislation – either Federal or
Provincial
• The scope of their authority is determined through the concept of delegated
authority
▫ Examples include the Ontario Securities Commission, the National Energy Board
and the Ontario Human Rights Commission
Burden of proof – Criminal law
• The burden of proof is an important level of the
trial process
• Criminal trials are between the state (commonly
referred to as “the Crown” or in court cases R.)
and an individual. For example R. v. Jones
• Typically these cases are criminal law
• In criminal law a case must be proven “beyond a
reasonable doubt”
• This is because there can be prison time
associated with a finding of guilt
Burden of proof – civil Law
• In civil trials the matter is between two individuals/
companies. For example Jones v. Smith
• Burden of proof is based on a balance of probabilities.
If it is 51% more likely that a wrong occurred, then a
plaintiff will prevail
• Civil law is focussed on tort law, contract law and
property law
• No prison time can be imposed in a civil trial
• The remedy is damages => monetary compensation
• Other remedies may exist for example an injunction to
prevent my neighbour from intruding on my land
The legal process
• In a civil trial the following process is followed
• Statement of Claim – a plaintiff files a statement of
claim against another party, know as the defendant
• Statement of Defence – a defendant is required to
submit a statement of defence to the courts explaining
why the plaintiff’s claim is not correct
• Failure to file a statement of defence can lead to what
is know as ‘default judgment’ => the plaintiff wins their
claim without having to attend court
The legal process
• If both parties file their documents with the court – statement of claim and
statement of defence the process proceeds through the court
• Discovery – this is a process whereby each party must produce all
documents that they intend to rely upon at trial
▫ This can include contracts, emails, memoranda of understanding etc.
▫ The purpose of discovery is to all parties to understand the other party’s case
▫ Each party must present one witness for discovery who can explain the
documents that have been produced in the case
• Post-discovery is often where litigation comes to an end
• Parties are more likely to settle when they have a better understanding of the
strengths and weaknesses of their positions
Alternatives to the courts
• In civil matters disputes may be resolved in ways that do not involve the courts
• This is known as Alternative Dispute Resolution (ADR)
• Usually done through a dispute resolution clause in a contract, as agreed
upon by the parties
▫ Negotiation – parties may resolve their dispute before having to go to court
▫ Mediation – A mediator, agreed to upon by the parties, will listen to both sides
arguments and offer insight into the relative merits of each sides claims. Mediation
is not binding. It is up to the parties to decide if they wish to follow the mediators
recommendations. Often this leads back to negotiation
▫ Arbitration – an arbitrator behaves as a judge. The arbitrator hears the case and
makes a decision regarding which party prevails
Benefits of ADR
• Parties can control the solution. The parties set the rules, the substantive and
procedural law that applies; select the mediator or arbitrator
• The schedule at which proceedings occur is left to the parties as opposed to the
courts
• Privacy – negotiation, mediation and arbitration are private. This is particularly
important in situations where a dispute might involve trade secrets, methods etc.
Any decision regarding damages also remains private
• For on-going business relationships ADR can help avoid the confrontational nature
of the court system
• ADR is cheaper – it depends. Parties must pay the fees of the mediator or
arbitrator as well as their own legal costs, but often the process is less drawn out
than litigation
Disadvantages of ADR
• Potentially more limits on access to information between the parties. This is
particularly true where ADR is simply about negotiation. In mediation or
arbitration however, the contract between the parties will usually involve a
discovery clause
• Decisions are not based on precedent – in theory. In practice precedent
based upon the law and jurisdiction that the parties have selected is highly
persuasive
• Enforcement may prove difficult unless the agreements are produced by
lawyers
• Lack of a public record can be a problem when it comes to enforcement
which may have to be enforced by the courts
Next:
• Post an introduction to yourself in the Discussion Board on
BlackBoard.
• Complete the Review Questions for this lesson before next week’s
class.
• We will be exploring Negligence next week.

And finally…

• Please feel free to e-mail me with any questions you may have about
the course between now and then!