BLAW 1320
Overview of the Canadian Legal System
Fall 2025
Robert Omura
Sources of Law in the Business Context
Public Law vs. Private Law
 What is Public Law?
Rules that govern the relationship between the state or government and
individuals in society such as criminal law, administrative law, and regulatory
law.
 What is Private Law?
Rules that govern the relationship between persons in society such as contract
law, torts, and property law.
 Required Reading: Chapters 1 and 2: McInnes, Kerr & VanDuzer, Managing
the Law
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Sources of Law in the Business Context
State Legal Authority
 When you think about law in Canada it is often the English common law
system adopted, used and enforced by the state that come to mind. This
includes:
(1)
(2)
(3)
the Constitution,
the codified laws or legislation found in statutes, regulations, and bylaws, and
the case law based on the decisions of judges made in a court of
law or before a tribunal that are made on a case-by-case basis.
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Sources of Law in the Business Context
State Legal Authority
The Canadian Constitution
4
Sources of Law in the Business Context
State Legal Authority: Constitution
 The Constitution was established by Imperial Decree of the British
Parliament in London, England (video).
 In 1867, the British North America Act, 1867, 30-31 Vict., c. 3 (U.K.) created
Canada and gave it a basic constitution.
 The BNA Act has been amended a number of times.
 In 1982, the Canada Act 1982, 1982, c. 11 (U.K.), passed by the British
Parliament in London, England, renamed the whole of Canada’s
constitution as the Constitution Acts, 1867 to 1982. It included a number of
amendments as Part II through Part VII and established Part I, The Charter
of Rights and Freedoms.
 That was the last time the British Parliament will amend the Canadian
Constitution.
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Sources of Law in the Business Context
State Legal Authority: Constitution
 The Constitution is the highest law of the land.
 Section 52 of the Constitution Act, 1982:
Primacy of Constitution of Canada
52 (1) The Constitution of Canada is the supreme law of Canada, and any law that
is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
 The Constitution establishes the Federal Parliament (Part IV) and each
Provincial and Territorial Legislature (Part V), and invests each with the
authority of the Crown (Part III) then divides that authority between the
Federal Parliament and the Provincial and Territorial Legislatures.
 As a result of this division of power, the Federal government and the
Provincial governments often “butt heads”.
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Sources of Law in the Business Context
State Legal Authority: Constitution
 The Constitution sets out a division of power between the Federal
Parliament and each Provincial and Territorial Legislature.
 Under s. 91, the Federal Parliament has authority over such things as:
•
•
•
•
•
•
•
•
•
•
Public Debt and Borrowing on the
Public Credit
Taxation
International/Interprovincial
Trade and Commerce
Unemployment Insurance
Postal Service
Military
Quarantine and Marine Hospitals
Navigation and Shipping
Sea Coasts and Inland Fisheries
Transnational and Interprovincial
Ferries
•
•
•
•
•
•
•
•
•
•
•
Currency, Coinage and Legal
Tender
Banking
Bills of Exchange and Promissory
Notes
Interest
Bankruptcy and Insolvency
Patents and Copyrights
Indians and Reserves
Immigration and Naturalization
Marriage and Divorce
Criminal Law and Penitentiaries
Such other classes of subjects not
assigned to the Provinces
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Under s. 92, the Provincial Legislatures have authority over such things as:
•
•
•
•
•
•
•
•
•
Direct Taxation within the Province
Borrowing Money on the Credit of
the Province
Management and Sale of Public
Lands in the Province
Prisons in the Province
Hospitals in the Province
Municipalities
Licensing Liquor and Taverns
Local Works and Undertakings
Incorporations of Companies for
Provincial Objects
•
•
•
•
•
Solemnization of Marriage in the
Province
Property and Civil Rights in the
Province
Administration of Justice in the
Province
Punishment and Fines for enforcing
Provincial laws
Matters of a merely local or private
Nature in the Province
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Non-renewable natural resources to the Provinces (i.e., oil and gas, timber,
electricity), s. 92A.
 Education to the Provinces, ss. 93 and 93A.
 Old Age pension to the federal Parliament, s. 94A.
 Agriculture and Immigration in the province to the Provinces, but subject
to the paramountcy of the federal Parliament to pass laws of general
application, s. 95.
 Superior Court Judges: Appointment, Salaries and Termination of Superior
Court Judges (i.e., B.C. Supreme Court) to the federal Parliament, s. 96.
 Establish the Supreme Court of Canada to the federal Parliament, s. 101.
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Sources of Law in the Business Context
State Legal Authority: Constitution
A third party enters the fray
 Section 91(24): Indians and Reserves to the federal Parliament.
 Part II, Constitution Act, 1982 sets out the Rights of Aboriginal Peoples of
Canada.
 Section 35(1) states:
Recognition of existing aboriginal and treaty rights
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Section 25 states:
Aboriginal rights and freedoms not affected by Charter
25 The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other rights
or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of
October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may
be so acquired.
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Charter of Rights and Freedoms, Part I, Constitution Act, 1982:
12
Sources of Law in the Business Context
State Legal Authority: Constitution
 The Charter guarantees certain rights and freedoms, s. 1.
 These include the following:
•
•
•
•
•
•
•
Freedom of conscience and religion,
s. 2(a)
Freedom of thought, belief, opinion
and expression, s. 2(b)
Freedom of peaceful assembly, s.
2(c)
Freedom of association, s. 2(d)
The right to vote, s. 3
Mobility rights, s. 6
The right to life, liberty and security
of the person, s. 7
•
•
•
Criminal and penal rights, ss. 7-14
Equality rights, ss. 15 and 28
English and French language
rights, ss. 16-23
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Sources of Law in the Business Context
State Legal Authority: Constitution
 What are the limits of rights and freedoms under the Charter?
 The Charter is a check on improper government action.
 First, the Charter has limited application. It only applies against
infringements by government actions or actors, or those “clothed” with
government authority. See s. 32:
Application of Charter
32 (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and
Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.
[Emphasis added]
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Second, some government actions that infringe rights and freedoms may
still be valid law. The Charter balances government actions against the
rights and freedoms protected. See s. 1:
Rights and freedoms in Canada
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society. [Emphasis added]
 When is government infringement of a Charter right reasonable?
15
Sources of Law in the Business Context
State Legal Authority: Constitution
 Oakes test: This is assessed by balancing the government’s action against
the right being infringed on a case-by-case basis. See R. v. Oakes, [1986] 1
S.C.R. 103. Discussion. The test considers the following:
1. The government must show that the goal of the law at issue is both “pressing
and substantial”
2. The court then does a “proportionality” analysis:
a. The government must show that the provision in question is “rationally
connected” to the law’s purpose.
b. The provision must “minimally impair” the Charter right being
infringed.
c. On balance, is the effect on the Charter right being infringed too high for
the benefits of achieving the law’s purpose (proportionality).
Further Reading: Oakes Test, Centre for Constitutional Studies, Faculty of Law, University of
Alberta.
16
Sources of Law in the Business Context
State Legal Authority: Constitution
Consider the case of R. v. Keegstra, 1990 CanLII 24 (SCC).
Keegstra was a high school teacher who taught his students that the Holocaust never
occurred and promoted racist views of Jews. He was charged under s. 319(2) of the
CCC which at the time read: Everyone who, by communicating statements, other than
in private conversation, wilfully promotes hatred against any identifiable group is
guilty.
Defence in s. 319(3) states that No person shall be convicted …
(a) If he establishes that the statements communicated were true;
(b) If, in good faith, the person expressed or attempted to establish by argument an
opinion on a religious subject or an opinion based on a belief in a religious text;
(c) If the statements were relevant to any subject of public interest, the discussion
of which was for the public benefit, and if on reasonable grounds he believed
them to be true; or
(d) If, in good faith, he intended to point out, for the purpose of removal,
matters producing or tending to produce feelings of hatred toward an
identifiable group in Canada
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Sources of Law in the Business Context
State Legal Authority: Constitution
He argued that s. 319(2) infringed on his Charter rights, in particular, s. 2(b)
which states: freedom of thought, belief, opinion and expression, including
freedom of the press and other media communication.
Clearly, s. 319(2) infringed on Keegstra’s Charter right to freedom of opinion.
The court found that the goal of curbing the promotion of hatred against
identifiable groups was “pressing and substantial”.
Rationally connected: Yes, the measure aim at the public promotion of hatred
against an identifiable group.
Minimally impair: Yes, it carved out true or good faith efforts to find the truth
or for a public good in the defence. Yes, it only went after public promotion of
hatred against an identifiable group.
Proportional: It carved out a narrow category of behaviours.
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Sources of Law in the Business Context
State Legal Authority: Constitution
 Third, a government may invoke the “notwithstanding clause”, s. 33.
Further Reading: Aaron Wherry, “Ford’s retreat notwithstanding, the fight over charter rights is far
from over” (CBC News, Nov 9, 2022).
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Sources of Law in the Business Context
State Legal Authority: Constitution
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
Statutory Law
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 Statutory Law or Legislation is the written laws (codes) created by the
federal Parliament, the Provincial Legislatures, the Municipality, or by
authorized Administrative organs of government.
 There are three main types of legislation:
1. Statutes – establish broad principles or rules and passed by the federal
Parliament or the Provincial Legislatures.
2. Regulations – principles or rules established by regulatory bodies responsible
for implementing a statute.
3. By-Laws – principles or rules established by a municipal authority.
Regulations and By-Laws are “delegated legislation” as the power to enact them
is delegated by statute to a particular Minister or administrative body.
Further Reading: Step 2: Primary Sources of Law: Canadian Legislation, Bora Laskin Law Library,
University of Toronto.
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 An example of a Provincial statute includes:
B.C. Business Corporations Act, S.B.C.
2002, c. 57.
Formation of company
10(1) One or more persons may form a
company by
(a) entering into an incorporation
agreement,
(b) filing with the registrar an
incorporation application, and
(a) complying with this Part.
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 An example of a Federal statute includes:
Incorporators
5(1) One or more individuals or bodies
corporate may incorporate a corporation
by signing articles of incorporation and
complying with section 7.
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 An example of a Provincial regulation includes:
B.C. Business Corporations
Regulations, B.C. Reg. 65/2004.
Preparation of financial statements
21(1) The financial statements required
for a company under Part 6 of the Act
must be prepared in accordance with
generally accepted accounting principles
and must include
(a) a balance sheet,
(b) a statement of retained earnings,
(c) an income statement, and
(d) a cash flow statement.
(2) Despite subsection (1), the financial
statements required for a company under
Part 6 of the Act for a financial year need
not be prepared in accordance with
generally accepted accounting principles if
the shareholders of the company, whether
or not their shares otherwise carry the right
to vote, resolve, by unanimous resolution, to
waive those principles for that financial year.
(3) The financial statements referred to in
subsection (1) or (2) need not be designated
by the names set out in subsection (1) (a) to
(d).
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 An example of a Federal regulation includes:
Financial Statements
71(1) Subject to subsection (2), the
annual financial statements referred to in
paragraph 155(1)(a) of the Act shall be
prepared in accordance with Canadian
GAAP.
(2) For an SEC registrant, the financial
statements may be prepared in
accordance with US GAAP.
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Sources of Law in the Business Context
State Legal Authority: Statutory Law
 An example of by-laws include:
Business Prohibition
4. A person must not carry on any business,
trade, profession or other occupation set out
and described in Schedule A to this By-law.
27
Sources of Law in the Business Context
State Legal Authority: Case Law
Case Law
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Sources of Law in the Business Context
State Legal Authority: Case Law
 Case Law is the written decisions of judges heard in court or from tribunals.
 Judges review and interpret the Constitution, the Statutory Law, and the
Case Law when deciding a case.
 Judges follow the principle of “stare decisis” when deciding a case. Stare
decisis requires a judge to follow similar decisions from higher courts in the
Province or from the Supreme Court of Canada. Similar decisions from the
same court or from other jurisdictions are not binding on a judge but may
be persuasive.
Further Reading: Step 2: Primary Sources of Law: Canadian Case Law, Bora Laskin Law Library,
University of Toronto.
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Sources of Law in the Business Context
State Legal Authority: Case Law
 Examples of case law and stare decisis:
[17] Although the term stare decisis is generally
used in reference to the relationship of higher courts
to lower courts, the principle also applies to courts
at the same level in the same jurisdiction. However,
courts at the same level are not as tightly bound by
the principle. A judge may depart from the principle
of stare decisis if certain criteria are met: (a) where
the decision cannot stand with a subsequent
decision of a higher court; (b) where it is shown that
some binding authority was not considered; or (c)
where the decision was an unconsidered one given
in exigent circumstances without the opportunity to
consult authority fully: Re Hansard Spruce Mills Ltd.,
[1954] 4 D.L.R. 590 (B.C.S.C.) [Hansard Spruce
Mills].
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Sources of Law in the Business Context
State Legal Authority: Case Law
 Examples of case law and stare decisis:
V. THE LAW
A. Stare Decisis
[25] Stare decisis is a foundational principle of the
common law. The rule “promotes predictability,
reduces arbitrariness, and enhances fairness, by
treating like cases alike”: United States of America
v. Sriskandarajah, 2012 SCC 70 at para. 18.
[26] The Supreme Court of Canada in Bedford
recently considered the application of the doctrine
in the context of a constitutional challenge to three
former criminal offences related to prostitution. One
of the issues before the Court was whether the
application judge, who had declared the laws
unconstitutional, was entitled to rule on their
constitutionality in the face of the Court’s earlier
1990 advisory opinion in Reference re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.), [1990] 1
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Sources of Law in the Business Context
State Legal Authority: Case Law
S.C.R. 1123 (the “Prostitution Reference”), which
upheld the constitutionality of two of the three
provisions challenged.
[27] The Ontario Court of Appeal took the view that
a trial judge asked to depart from a precedent on
the basis of new evidence, or new social, political
or economic assumptions, may make findings of
fact for consideration by the higher courts, but
cannot apply them to arrive at a different
conclusion from the previous precedent. However,
the Supreme Court disagreed. In addressing the
precedential effect of the Prostitution Reference on
the application judge, the Chief Justice said the
following:
[38] Certainty in the law requires that
courts follow and apply authoritative
precedents. Indeed, this is the
foundational principle upon which the
common law relies.
[39] The issue of when, if ever, such
precedents may be departed from takes
two forms. The first “vertical” question is
when, if ever, a lower court may depart
from a precedent established by a
higher court. The second “horizontal”
question is when a court such as the
Supreme Court of Canada may depart
from its own precedents.
[40] In this case, the precedent in
question is the Supreme Court of
Canada’s 1990 advisory opinion in the
Prostitution Reference, which upheld
the constitutionality of the prohibitions
on bawdy-houses and communicating
— two of the three provisions
challenged in this case. …
[41] The application judge in this case
held that she could revisit those
conclusions because: the legal issues
32
Sources of Law in the Business Context
State Legal Authority: Case Law
under s. 7 were different, in light of
the evolution of the law in that area;
the evidentiary record was richer and
provided research not available in
1990; the social, political and
economic assumptions underlying
the Prostitution Reference no longer
applied; and the type of expression
at issue in that case (commercial
expression) differed from the
expression at issue in this case
(expression promoting safety). The
Court of Appeal disagreed with
respect to the s. 2 (b) issue, holding
that a trial judge asked to depart from
a precedent on the basis of new
evidence, or new social, political or
economic assumptions, may make
findings of fact for consideration by
the higher courts, but cannot apply
them to arrive at a different
conclusion from the previous
precedent (para. 76).
[42] In my view, a trial judge can
consider and decide arguments based
on Charter provisions that were not
raised in the earlier case; this
constitutes a new legal issue.
Similarly, the matter may be revisited if
new legal issues are raised as a
consequence of significant
developments in the law, or if there is
a change in the circumstances or
evidence that fundamentally shifts the
parameters of the debate.
…
[43] … however, a lower court is not
entitled to ignore binding precedent,
and the threshold for revisiting a
matter is not an easy one to reach. In
my view, as discussed above, this
threshold is met when a new legal
33
Sources of Law in the Business Context
State Legal Authority: Case Law
issue is raised, or if there is a
significant change in the
circumstances or evidence. This
balances the need for finality and
stability with the recognition that
when an appropriate case arises for
revisiting precedent, a lower court
must be able to perform its full role.
[45] It follows that the application
judge in this case was entitled to rule
on whether the laws in question
violated the security of the person
interests under s. 7 of the Charter.
[Emphasis added.]
based on Charter provisions that were not raised
in the previous case; where new legal issues are
raised as a consequence of significant
developments in the law; or if there is a change in
the circumstances or evidence that fundamentally
shift the parameters of the debate.
[29] However, where the legal issue remains the
same and arises in a similar context, the
precedent still represents the law and must be
followed by the courts: Canada (Attorney General)
v. Confédération des syndicats nationaux, 2014
SCC 49 at para. 24.
[28] From Bedford it is apparent that trial
judges may depart from binding precedent in
very limited circumstances. Those limited
circumstances are met where the trial judge is
asked to consider and decide arguments
34
Sources of Law in the Business Context
Legal Pluralism
 Legal Pluralism - The idea that laws are a patchwork of overlapping
systems and processes designed to guide people with how to govern
themselves, their relationships, and their interactions, and to provide a
mechanism for resolving disputes when they arise and for enforcing rules.
Further Reading: Keebet von Benda-Beckmann & Bertram Turner, “Legal pluralism, social theory,
and the state” (2018), 50(3) Journal of Legal Pluralism and Unofficial Law 255-274.
35
Sources of Law in the Business Context
Legal Pluralism: Reception of English Law
Reception of English Law into Canada is about when English law was
adopted into Canada and the colonies such as British Columbia.
On November 19, 1858 Governor James Douglas proclaimed English law into
British Columbia.
Section 2, Law and Equity Act, R.S.B.C. 1996, c. 253:
… the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as
they are not from local circumstances inapplicable, are in force in British Columbia, but those
laws must be held to be modified and altered by all legislation that has the force of law in
British Columbia or in any former Colony comprised within its geographical limits. [Emphasis
added]
Further Reading: J. E. Côtė, “The Reception of English Law” [1977] 15 Alta. Law Rev. 29.
36
Sources of Law in the Business Context
Legal Pluralism: Reception of English Law
 Conseil scolaire francophone v. B.C., [2013] 2 S.C.R. 774.
In an application alleging the violation of French language rights under the Charter, a French
language school and a federation of Francophone parents sought to introduce an affidavit into
evidence with exhibits only in the French language. British Columbia objected to the admission
of the affidavits without an English translation on two grounds, first, an old English law that
required all court documents to be in English, and second, Rule 22-3 of the B.C. Supreme
Court Rules, B.C. Reg. 168/2009 that required court proceedings and any document prepared
for use in court to be in English.
The majority of the Supreme Court of Canada held that the Legislature had exercised its power
to regulate the language to be used in court proceedings by adopting provisions requiring civil
proceedings to be in English.
The court also found that the 1731 Act was received into B.C. law by the proclamation of
Governor James Douglas on November 19, 1858, and into the rest of B.C. by the English Law
Ordinance, 1867, S.B.C. 1867, No. 7. This is repeated into modern times by s. 3 of the Law
and Equity Act, R.S.B.C. 1996, c. 253. The 1731 Act has not been repealed or modified.
See: Proceedings in Courts of Justice Act (G.B.), 1731, 4 Geo. II, c. 26.
37
Sources of Law in the Business Context
Legal Pluralism: Reception of English Law
 Bessette v. B.C., [2019] 2 S.C.R. 535.
. The accused was charged with a provincial driving offence in British Columbia. He applied to
be tried in French, in accordance with s. 530 of the Criminal Code, R.S.C. 1985, c. C-46, which
grants the accused the right to be tried by a provincial court judge in an official language of
Canada that is the language of the accused. The Crown opposed the application, arguing that
English is the only language of provincial offence prosecutions in British Columbia according to
the 1731 Act. The provincial court judge agreed with the Crown and dismissed the accused’s
application.
The Supreme Court of Canada unanimously held that the accused was entitled to stand trial in
French. Section 530 of the Criminal Code is mandatory. Section 133 of the Offence Act,
R.S.B.C. 1996, c. 338 provides that any gaps in the Act are to be filled by the provisions of the
Criminal Code. Since neither the Offence Act nor the particular legislation (the Motor Vehicles
Act, R.S.B.C. 1996, c. 318) specify trial in English alone, s. 530 of the Criminal Code applies
by reference. The 1731 Act does not apply.
See: Proceedings in Courts of Justice Act (G.B.), 1731, 4 Geo. II, c. 26.
38
Sources of Law in the Business Context
Legal Pluralism: the Law Merchant
 Law Merchant (Lex Mercantoria) – a transregional system of selfregulation enforcing customary laws, practices and rules, and governing
mercantile transactions.
Further Reading: Leon Trakman, “The Twenty-First Century Law Merchant”, [2011] UNWSLRS, 32.
Further Reading: Aleksi Ollikainen-Read, “Law and Commerce: The Fortunate Crisis of the
Eighteenth Century” (2022), 43(1) Journal of Legal History 56-83.
 Today, there are a number of organizations that establish guidelines for
international trade and commerce, and provide dispute resolution services
outside state authority, including the International Chamber of Commerce
(ICC). The ICC attempts to standardize Incoterms and Transnational
Commercial Contracts.
39
Sources of Law in the Business Context
Legal Pluralism: the Lex Sportiva
 Lex Sportiva – an international body of rules governing international sports
and athletes.
Further Reading: Ken Foster, “Lex Sportiva and Lex Ludica: the Court of Arbitration for Sport’s
Jurisprudence” (2016) 3(2) Entertainment and Sports Law Journal 2.
 Sagen v. Vancouver Organizing Committee for the 2010 Olympic and
Paraolympic Winter Games, 2009 BCSC 942, aff’d 2009 BCCA 522, leave to
appeal refused, 2009 CanLII 72220 (SCC).
Several high-ranked women ski jumpers brought a Charter challenge against VANOC alleging
gender discrimination as women ski jumpers were excluded from the 2010 Winter Olympic
Games because of their sex, contrary to s. 15 of the Charter.
The right to compete at the Olympic Games is not a benefit of the law. It does not derive from
legislation nor from a governmental activity, but from a decision of the IOC alone.
40
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
 Indigenous Peoples have been here since time immemorial. Indigenous law
applies in Canada and is not superceded by English law.
 Indigenous Peoples have their own customary practices that have not been
extinguished by the Crown.
 Indigenous Peoples have the right to self-determination.
 Indigenous rights are legal rights.
Further Reading: Kate Gunn and Cody O’Neil, “Indigenous Law & Canadian Courts” (First Peoples
Law: January 20, 2021).
41
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
 There are three main sources of indigenous laws and rights in
Canada:
1. Law and custom as protected by the Royal Proclamation of
1763;
2. Law and custom protected by the Canadian Constitution
(especially s. 35) and statutes of the Parliament of Canada;
and
3. Treaty rights negotiated at the time those treaties came into
force.
42
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
 Royal Proclamation of 1763:
43
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
 What did the Royal Proclamation of 1763 do?
 According to Prof. Brian Slattery the Royal Proclamation did seven things:
(1) recognized Indian nations as autonomous entities living under the protection and asserted
sovereignty of the Crown;
(2) confirmed Indian rights to unceded lands in their possession;
(3) prohibited colonial Governors from making grants of unceded Indian lands;
(4) prohibited private individuals from settling on such lands;
(5) outlawed the private purchase of unceded Indian lands;
(6) provided that such lands could only be purchased for the Crown in a public meeting of the
Indians called by government officials;
(7) created an ‘Indian Country’, located to the west of a provisional line drawn along the
Appalachian watershed.
Further Reading: Brian Slattery, Aboriginal Title and the Royal Proclamation of 1763: Origins and
Illusions (December 7, 2019).
44
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
Indigenous Rights and the Canadian Constitution
 Section 91(24), Constitution Act, 1867, 1867, 30 & 31 Vict., c. 3 (U.K.):
24.
Indians, and Lands Reserved for Indians.
 Section 35(1), Part II, Constitution Act, 1982, Schedule B to the Canada Act,
1982, 1982, c. 11 (U.K.):
35(1)
The existing aboriginal and treaty rights of the
aboriginal peoples of Canada and hereby recognized and
affirmed.
45
Sources of Law in the Business Context
Legal Pluralism: Indigenous Law
 Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257.
Aboriginal title includes the right to decide how those lands and resources are used and
managed, including through the exercise of the Indigenous Peoples’ (the right holders’) own
laws and customs.
 Treaties (see map)
46
Sources of Law in the Business Context
Court System
Court System
47
Sources of Law in the Business Context
Court System: Overview
VIDEO
Source: The Judicial Structure, Dept. of Justice Canada, Government of Canada, 2021-09-01.
48
Sources of Law in the Business Context
Court System: Superior Courts
 Superior courts are the highest courts in the Province (video).
 Superior courts are established under s. 96 of the Constitution.
 The superior courts in British Columbia are the Supreme Court of British
Columbia and the British Columbia Court of Appeal (video).
 Justices of the superior courts have “inherent jurisdiction” (i.e. judicial
review, equity).
 Under s. 3 of the Supreme Court Act, R.S.B.C. 1996, c. 443:
Powers and privileges
3(1) The Chief Justice, Associate Chief Justice and judges have all the
powers, rights, incidents, privileges and immunities of a judge of a superior
court of record, and all other powers, rights, incidents, privileges and
immunities that on March 29, 1870, were vested in the Chief Justice and the
other justices of the court. [Emphasis added]
 On March 29, 1870, Matthew Baillie Begbie was appointed as the first
Chief Justice of the United Colonies of Vancouver Island and British
Columbia. Reception of the English Court system into B.C.
49
Sources of Law in the Business Context
Court System: Superior Courts
• Begbie had been appointed by
Governor James Douglas as Judge
of the colony of British Columbia
in 1859 “with full power and
authority to hold Courts of
Judicature, and to administer
Justice” and with “complete
cognizance of all pleas
whatsoever” and “jurisdiction in
all cases, civil as well as criminal.”
(video)
• Appeals from the Supreme Court
of B.C. may be heard by the B.C.
Court of Appeal.
50
Sources of Law in the Business Context
Court System: Superior Courts
Law and Equity
 What is the difference between Law and Equity?
The common law system was developed by the English Courts over centuries
(video).
Law is the set of rules set out by government authority or developed over time
by judges (i.e., breach of contract).
Equity is the set of rules guided by principles of “natural law” and fairness (i.e.,
unconscionable contract, specific performance).
 Law requires the court to stay inside the lines when making a decision.
 Equity permits the court to reach “outside the box”, in a principled way, to
find a fair resolution.
51
Sources of Law in the Business Context
Court System: Superior Courts
 In the English common law system, Law and Equity developed from two
different court traditions.
LAW
EQUITY
Common Law Courts
Court of Chancery
Court of
Common Pleas
Court of King’s
Bench
 Equity developed as a “check” by the Lord Chancellor of England on the
common law courts to ensure fairness in the justice system.
52
Sources of Law in the Business Context
Court System: Superior Courts
 In England, Law and Equity merged when the courts were unified as the
Supreme Court of Judicature in 1873.
 Law and Equity merged in British Columbia far earlier, back when Governor
Douglas made his Declaration appointing Begbie as a judge in 1859 with all
powers of a judge over all matters, but for greater clarity, the B.C.
Legislature passed a Judicature Act in 1879.
 Today, the superior court can decide cases based on both Law and Equity.
This continues today in the Law and Equity Act, R.S.B.C. 1996, c. 253. See,
for example, ss. 4, 5, 7 and 8.
 This was typical for many English colonies with limited resources in trained
personnel and avoided the “in-fighting” typical of the English courts at the
time.
53
Sources of Law in the Business Context
Court System: Superior Courts
 The B.C. Court of Appeal is the highest court in the Province.
 The B.C. Court of Appeal is established under the Court of Appeal Act
S.B.C. 2021, c. 6.
 The Justices of the B.C. Court of Appeal are made up of superior court
justices. Their ranks are set out in s. 7 of the Court of Appeal Act.
 It reviews the decisions of the lower courts.
 It may dismiss an appeal, vary or cancel an order, or set aside an order
and send the matter back for a new trial.
 Appeals from the B.C. Court of Appeal may be heard by the Supreme
Court of Canada.
54
Sources of Law in the Business Context
Court System: Provincial Courts
 Provincial Courts are statutory courts. Judges only have the authority
granted to them by the words of the statute.
 Judges of the Provincial Courts do not have “inherent jurisdiction” like
superior court Justices.
 Provincial Courts are established under the Provincial Court Act, R.S.B.C.
1996, c. 379.
 Judges of the Provincial Court have jurisdiction over such matters as:
Criminal Court (summary matters) – Criminal Code, R.S.C. 1985, c. C-46
Small Claims Court – Small Claims Act, R.S.B.C. 1996, c. 430
Family Court – Family Law Act, S.B.C. 2011, c. 25
Youth Court – Youth Justice Act, S.B.C. 2003, c. 85 and Youth Criminal
Justice Act, S.C. 2002, c. 1
Traffic, Ticket and Bylaw Cases
 Appeals from decisions made by the Provincial Court go to the Supreme
Court of B.C.
55
Sources of Law in the Business Context
Court System: Supreme Court of Canada
 The Supreme Court of Canada is the highest court in Canada (video).
 The Supreme Court of Canada hears appeals from Provincial Courts of Appeal or
by Reference from an Attorney-General (Federal or Provincial).
 The Supreme Court of Canada is established by s. 101 of the Constitution.
 The Supreme Court of Canada hears matters of national importance.
 The Supreme Court of Canada hears matters by leave, not right.
56
Sources of Law in the Business Context
Court System: Appeals
57
Sources of Law in the Business Context
Court System: Federal Courts
 The Federal Court and Federal Court of Appeal are established by the Federal
Courts Act, R.S.C. 1985, c. F-7.
 The Federal Court has concurrent original jurisdiction with the Superior Courts
to hear matters related to any claim against the Federal Crown, s. 17(1).
 The Federal Court hears appeals from Federal Administrative Tribunals.
 Appeals from the Federal Court go to the Federal Court of Appeal.
 Appeals from the Tax Court of Canada go to the Federal Court of Appeal.
 Appeals from the Federal Court of Appeal go to the Supreme Court of
Canada.
 Matters typically heard in Federal Court include patents and copyrights;
citizenship, immigration and refugee appeals; federal benefits like
unemployment, Veteran affairs, and CPP appeals; CRTC appeals; and Indian
Act appeals.
58
Sources of Law in the Business Context
Court System: Administrative Tribunals
 There are a number of administrative tribunals that review decisions made by
a Ministry or Municipal authority. Decisions of administrative tribunals are
subject to judicial review by the courts.
 A few examples you might run across are:
Property Assessment Appeal Board
of British Columbia
Building Board of Appeal (Vancouver)
Building Code Appeal Board of British
Columbia
B.C. Environmental Appeal Board
Environmental Protection Tribunal of
Canada
Civil Resolution Tribunal
Safety Standards Appeal Board
Board of Variance (North Vancouver)
Forest Appeals Commission
59
Sources of Law in the Business Context
Court System: Process
 A lawsuit typical begins with pleadings, i.e., claim, defence, counterclaim, defence to
counterclaim (video). Sets out the “story” of the lawsuit.
 Discovery process – document production and oral questioning of witnesses (video).
No trial by ambush permitted. This stage is about sharing all the evidence about the
lawsuit.
 Interlocutory steps – intermediate steps to move a lawsuit toward settlement or trial.
Maybe a hearing before a judge for an order. Interim orders to deal with matters that
come up from time to time before trial.
 Trial – a hearing of the evidence by a judge who provides a judgment (video). Where
the parties get their chance to prove their case before a judge.
 Appeal – a review of the decision of the hearing/trial judge on the basis of an error of
law, fact, or both law and fact. If you don’t like the decision because the trial judge
erred, you can appeal the decision to a higher court.
60
Sources of Law in the Business Context
Court System: Arbitration
 Arbitration offers an “alternative dispute resolution” mechanism to the court
system (video).
 Arbitration is often seen as a cheaper, faster means to resolve disputes.
 The choice to use arbitration is recognized by B.C. law:
Arbitration Act, S.B.C. 2020, c. 2.
Commercial Arbitration Act, S.B.C. 1986, c. 3.
International Commercial Arbitration Act, R.S.B.C. 1996, c. 233.
Civil Resolution Tribunal Act, S.B.C. 2012, c. 25.
Further Reading: Arbitration, Vancouver International Arbitration Centre.
Further Reading: How to Commence an Arbitration Under the ADRIC Arbitration Rules, ADR Institute
of Canada.
61
Thank you
62