What is Law? - Set of rules of principles - Govern the conduct of society in a democracy - Promotes goals of peace, order and good governance - Law should be in writing (written form) - If they aren’t written then there is a risk of unfairness in application - The government adopts the laws Law & Justice - Justice: Process of applying the law - Law: Set of rules to maintain order and provide fair treatment to all - Why do we respect the law? 1. Faith in lawmakers 2. Fear of punishment - Law is enforced by the courts (judges) - Important that the people respect the judges. If we don’t respect the judges then we don’t respect their decisions - Justice has to be perceived by the public as having been rendered fairly Law & Ethics - Ethics: moral values, personal views on what is right and wrong - Law: Rules adopted by the government - Ethical principles are not decided by government lawmakers - Ethical principles are society’s views on appropriate behaviour and acceptable conduct - Society’s views will change overtime - Changes in ethical beliefs help foster changes to the law - Laws that were adopted 40-50 years ago may no longer be appropriate since views are always changing - Laws are often slow to change because the lawmakers have to deal with the conflicting ethical views of their constituents (young people can have different views on certain behaviours compared to their parents or grandparents) - Example: Laws set out defined standards and are enforced by the court. Laws set minimum wage rate. Ethical principles are not enforced by the courts. When we refer to minimum wage, ethics asks if the minimum wage fair? Public, Private, Civil, & Common Law Private vs. Public Law - Private law: deals with the relationships between persons - 2 areas of private law: 1. contractual responsibility (deals with obligations in a contractual situation) and 2. non-contractual responsibility or civil liability (duty under the law not to injure) - Private law does not involve the government acting in its official capacity - The government can be involved in private law - Breach of private law: allows an injured person to claim compensation for the bodily moral and material injury as damages - Compensation puts you back into the position before the breach was occurred. Compensation looks at the actual and direct damage you have suffered Public law: deals with the relationship between the government acting in an official capacity and its citizens Public law deals with the enforcement of the citizens’ duties enforcement to the states (ex: duty to respect criminal law and to comply with the income tax act) Breach of public law leads to punishment NOT COMPENSATION This course only deals with issues of private law Civil vs. Common Law - Civil law: Deals with matters under the Quebec provincial jurisdiction - Historically the laws of Quebec were based on the private laws in use in France prior to the 1760s - When Britain took over the French colonies, the French laws continued to apply - Under civil law, all general principals of laws are collected and codified in one rule book known as the civil code (civil code of Quebec) - When faced with a legal question, lawyers and judges refer to 1. Civil code to see if they can find legislation applicable to the legal problem 2. If they cannot find legislation in civil code, they will look at previous court cases (jurisprudence) - Common law: Deals with federal laws that have common application across Canada, also applies in all other Canadian provinces for matters under provincial jurisdiction - Common law based on the British law system NOT THE FRENCH LAW SYSTEM - Under the British system, general principles of laws were not codified into a Civil Code - Lawyers and judges would looks at previous court cases first and secondly if they couldn’t find court cases they would look for specific laws to determine if the laws set out some principles dealing with the issues in question Substantive vs. Adjectival (Procedural) Law - Substantive laws: set out specific rights and responsibilities that people are bound by - Ex: Civil code or the consumer protection act - Procedural laws: Rules set out to govern how substantive laws should be applied - Ex: Code of civil procedure sets out the steps to take and the other to file documents when instituting a lawsuit (time delays) Litigation - Litigation: process of going to court, where one person sues another person (2 parties and a judge) - Litigation: formal procedure by which a person takes a court action against another person to claim damages/recover a debt/enforce an obligation - Litigation is also referred to as a lawsuit - Important terms: creditor (person to whom a debt is owed), debtor (person who owes a debt or an obligation to another), plaintiff (person who initiates a lawsuit against his or her debtor, usually the creditor), defendant (person who is being sued) Class Action - Class Action: multiple people having a similar claim against a common defendant and the proof of one person’s claim will be sufficient to prove all the damages suffered by all plaintiffs - Ex: All purchasers of a new cars, manufacturing defect in the brake system, cost of fixing it is similar, compensating for a large number of plaintiffs - What are the benefits of a class action? 1. Saves court time because 1 lawyer represents all the plaintiffs collectively 2. Saves legal costs to plaintiffs cause lawyers are very expensive and helps those who may not be able to afford the lawsuit on their own Where to institute a Lawsuit - General rule: plaintiff (creditor) sues the defendant (debtor) in the city in which the defendant is domiciled - What If the plaintiff and defendant live in different cities, provinces, or countries? - 1. If the lawsuit is based on breach of contract, then the parties can stipulate in the contract which court (city) will be competent to hear the case. This clause is called the CHOICE OF VENUE (or Choice of Forum) - 2. The parties can stipulate in the contract which law will apple to govern the contract. This clause is called CHOICE OF LAW Prescription - Specific delay that you have to institute a lawsuit - Prescription: after a certain lapse of time, from the date that the obligation was due or from the date that the damaged was caused, a Creditor will not be permitted to take a lawsuit to enforce his/her rights. Under Common Law this is referred to as LIMITATION PERIOD - In Quebec, as a general rule under the Civil Code of Quebec for breach of contract or non-contractual liability: Prescription to institute a lawsuit is 3 years of less Federal & Provincial Authority - The power to pass laws in Canada is divided by the federal government and provincial government - Federal laws: include laws on criminal, currency, banking, immigration, university and intellectual property matters - Provincial laws: property, ownership, civil rights, contracts, employment law, noncontractual responsibility (civil responsibility) Sources of Laws - Laws originate when a judge is trying to render a decision - 4 sources of law: 1. Statues: written laws adopted by the government (p or f) 2. Jurisprudence: case law, historical decisions which judges have already made 3. Doctrine: articles/essays written by legal experts analyzing particular areas of legal concern (especially areas of law that are new and emerging) (ex: internet law, 20 years ago that was not really a thing, doing contract online OR defamation on social media, cyberbullying) 4. Customs and Usage: Traditions, commonly accepted historical practices used in a particular community OR practices used by the same parties in previous transactions Introduction to the Quebec legal system Quebec Court System - 3 distinct levels: - 1. Trial court: court of first instance (what we see on television, 2 parties and 1 judge, trial, witnesses, and cross examination) In Quebec, the Trial Court is divided into 2 specific courts: a) Court of Quebec where the judges are appointed by the QC government b) Quebec superior court where the judges are appointed by the federal government - 2. Quebec court of appeal: decisions from both the court of Quebec and the Quebec superior court would go there - 3. Supreme court of Canada: Common final appellant court which hears appeals from all of the courts of appeal from all of the provinces and territories in Canada Trial Court - All lawsuits start here - Also referred to as the court of first instance Characteristics of the Trial Court (As seen on television) - Cases are heard by 1 judge - In Quebec, civil law court cases have no trial by jury (only by judge alone) UNLIKE in common law provinces and in the united states where they still have jury trials for civil law cases (QC does not have that) - Parties are referred to as the Plaintiff and the Defendant - Approx. 4 years for a judgement to be rendered in a trial court (4 years from the day you file your papers with the court until a judge comes up with their decision) Division of Authority between Trial Courts - 1. Court of Quebec - Judges are appointed by the provincial government - Handles all monetary claims that are greater than 15k and smaller than 85k - Separate division (branch) as part of the court of Quebec: Small Claims Court hears claims for an amount of 15k or less, only human beings or companies with less than 5 employees can be the Plaintiff (court for the people, not for large corporations). For a decision in the small claims court, there is no appeal, no lawyers, judge acts as an arbitrator which is an independent person appointed to settle a dispute) - When you appeal a decision it is a request to have a higher court determine whether mistakes were made by a lower court or tribunal - 2. Quebec Superior Court - Judges are appointed by the federal government - Deals with claims for an amount equal or greater than 85k Quebec Court of Appeal - Hears appeals from both the court of Quebec and from the Quebec superior court Characteristics of the Quebec Court of Appeal - Heard by 3 judges and decisions are rendered by majority DOES NOT HAVE TO BE UNANIMOUS - Person who presents the appeal: Appellant and the party who responds to the appeal: Respondent - Appellant is usually the party who lost the case at trial and is not happy with the decision - Takes approx. 3 years for the court of appeal to render its decision - Just because you were not happy with a decision in the trial court, doesn’t mean you can automatically appeal the decision. To do so, 2 factors have to be looked at: 1. Grounds for appeal (you must be able to show that the judge made a material error in interpreting the facts or in applying the law) 2. Question as to whether you have a right to appeal, certain cases have an automatic right of appeal (this is when the object in dispute in the Trial Court has an amount equal or greater than 60k) In all other cases, you need to ask permission form the Quebec Court of Appeal to appeal the case Supreme Court of Canada - Highest court in the land, no appeal beyond this - Back in the day there was an appeal to the British House of Lords after this court but not anymore - Hears appeals from all provincial courts of appeal and from the Canadian territories Characteristics of the Supreme Court of Canada - 9 judges at the supreme court of Canada - All 9 judges will sit for every case - Decisions are rendered by majority like at the Quebec Court of Appeal, DOES NOT HAVE TO BE UNANIMOUS - Person who files the Appeal at this court is the Appellant and the person who responds to the appeal is the Respondent - Takes approx. 3 years for a decision after the date the Quebec Court of Appeal renders its decision (4+3+3= 10 years) - Grounds of Appeal: show that the trial judge or the court of appeal judge made a material error in interpreting the facts or the law involved in the case - Right to Appeal: If you want to appeal a decision from the Quebec Court of Appeal to the Supreme court of Canada then you have to get permission from the Supreme Court - THERE IS NO AUTOMATIC RIGHT OF APPEAL TO GO TO THE SUPREME COURT OF CANADA, permission is required in all cases - As a general rule, the Supreme Court of Canada will take the approach that the Provincial court of appeal was in the best position to decide this matter therefore they refuse the request for permission to appeal - Supreme Court of Canada may agree to hear a case with a new law, a law that they have not ruled on before Supreme Court usually takes on matters of public order, national importance, dealing with Human Rights infringements The amount of money that is in dispute is NOT a relevant factor in deciding if the Supreme Court will hear a case
