Business Law 1
Module 1
The Canadian Legal System
Lectures and handouts by:
Barbara Cox
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Business Law 1
Business Law in Canada
Richard Yates
8th edition
Readings as noted in the Module Notes
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Ethics Readings Handbook (ERH)
3rd edition
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Business Law 1
• Glossary @ page 608 in text
• Online Law Glossary
• Use for definitions of legal terms
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Business Law 1
Introduction to Business Law 1
• Found at beginning of Module Notes
• Review this Introduction
• See note regarding provincial jurisdiction
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Business Law 1
Use of Audio Recordings & Slides
• The audio & slides are meant to be used together
• Neither is suitable as a stand alone resource
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Contradictions:
-
If I inadvertently contradict the Module Notes, the
Module Notes are deemed to be correct
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Business Law 1
The Exam
• I have not seen the exam, nor will I see it prior to you
writing it!
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The Exam
– Past exams are not updated
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Technical Updates & Information Bulletins
• Students responsibility to review
• May be delivered during the course
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Administrative Issues
• Business Law 1 lectures focus on course content
• For CGA administrative policies and procedures
students must contact their local CGA office
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Business Law 1
Module 1:
The Canadian Legal System
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Module 1: The Canadian Legal
System
1.1: Nature of Law
1.2: Categories of Law
1.3: Origins of Law
1.4: Sources of Law
1.5: The law in Canada
1.6: Human Rights Law
1.7: The Canadian Charter of Rights & Freedoms
1.8: The System of Courts
1.9: Using the Courts
1.10: Legal Costs
1.11 Alternatives to Court Action
1.12: Advantages & Disadvantages to ADR
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Business Law 1
Module 1.1: Nature of Law
– Pages 13-17
– Pages 20-21
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Nature of Law
Law:
- a body of rules that can be enforced by
the courts or by other government
agencies
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Nature of Law
What makes a law?
1.
Has to be made by the proper authorities
2.
Has to be enforceable by the proper authorities
3.
There must be sanctions for disobeying the law
eg. Fines, penalties or imprisonment
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Nature of Law
Moral Rules:
- not legally enforceable
- not enforced by the courts or other government
agencies
- can be the same as legal rules, for example, it is
morally & legally wrong to steal or murder
- may be more stringent than enforceable laws
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Nature of Law
Example:
Law: Shops & Businesses may open on Sunday
Moral Rules: Sunday shopping may be allowed, but
Sunday openings are against religious or
moral standards
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Nature of Law
Ethical Behaviour
• Unethical behaviour can result in discipline by governing
professional body
• Even where no crime has been committed
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Module 1.2: Categories of Law
• Page 21
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Categories of Law
There are:
-Substantive laws
-Procedural laws
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Categories of Law
Substantive law:
-accumulated laws which govern
our society
- laws which regulate & define
our rights
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Categories of Law
• Procedural law:
- how the substantive law is enforced
- The method through which the substantive law
is enforced
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Categories of Law
• Laws are either Public or Private
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Categories of Law
• Public laws:
• Laws which apply to everyone across the country
• Govern the relationship between governments, or
governments & individuals
• Legal proceedings are started by the Crown, or
are against the Crown
• Include criminal law, tax law & constitutional law
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Categories of Law
• Private laws:
• Govern the relationships between individual people
= actions by people against people
• The government is not involved
• Include contracts, torts & trusts
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Categories of Law
• There are different rules & procedures for private and
public laws
eg. Burden of proof for a criminal law = beyond a
reasonable doubt
Burden of proof for a tort = on the balance of
probabilities
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Module 1.3 Origins of Law
• Pages 22-25
Module 1.4: Sources of Law
• Pages 25-27
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Origins & Sources of Law
• Civil law system is based on codified laws
• Judges may only base their decisions on what is stated
in the code
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Origins & Sources of Law
• Common law system follows the use of precedents
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Origins & Sources of Law
The Use of Precedents, or “Stare Decisis”
– Judges make decisions based on how previous
similar cases were decided – a previous case
becomes the authority for how future cases are
decided
– “stare decisis” – let the previous decision stand
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Origins & Sources of Law
Precedent Cases & Stare Decisis:
– Must be a decision of a higher court & the same
province, or of the Supreme Court of Canada
– Judges must follow binding precedents unless they
can distinguish the case on its facts
– Allows for stability & predictability
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Origins & Sources of Law
– Judges must follow binding precedents unless they
can distinguish the case on its facts
– Allows for stability, predictability, consistency
– Judges will distinguish a current case from the
precedent case in order to not follow a “bad”
precedent
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Origins & Sources of Law
The Law of Equity
• Developed due to the rigidity of the common law
• Courts of Chancery or Equity decided cases on
their merits
• Equity prevails over common law
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Origins & Sources of Law
• Courts of Equity merged with the common law courts
around 1875
• Equitable principles are still applicable in many current
legal cases, for example in trusts and unconscionable
transactions
• Equity prevails over common law
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Origins & Sources of Law
Statute Laws
• are parliamentary enactments, made by the
legislature
• statute law overrides any existing law on the same
point
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Origins & Sources of Law
Can - codify the common law
- create new laws
- change existing laws
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Business Law 1
Chapter 1.5: The Law in Canada
• Pages 27-36
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Confederation, the Constitution & the
Division of Powers
A constitution is the rules, both written & unwritten, that
define the fundamental structures of the state.
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The Constitution
Canada has 2 important constitutional acts:
1. Constitution Act (1867)
2. Constitution Act (1982), which includes the
Charter of Rights and Freedoms
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Constitution Act, 1867
• Set up the fundamental structures of the state, the
executive & judicial branches of government
• Set up the division of powers between the federal &
provincial governments
• S. 91 & 92 of the Constitution Act
• S. 91 – “peace, order and good government”
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The Constitution
Canada is a federal state
• Different levels of governments have jurisdiction
over different matters
• Any powers not specifically delegated are federal
• Courts decide jurisdictional disputes
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Constitution Act, 1982
• Contains the Charter of Rights & Freedoms
• Effected parliamentary sovereignty
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Module 1.6: Human Rights Law
• Pages 36, 50-55
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Human Rights Legislation
Human rights Codes: federal or provincial
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Human Rights Codes
Federal: -Canadian Bill of Rights, 1960
-Applied only to the federal government
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Human Rights Codes
• Provincial: -valuable as they apply to
private relationships
-not entrenched, apply only within the
jurisdiction of the government that adopts
the
code
-easily amended
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Chapter 1.7: The Canadian Charter of
Rights & Freedoms
• Pages 37-50
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Charter of Rights & Freedoms
• In Constitution Act, 1982
• Cannot be repealed by an ordinary act of Parliament
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Canadian Charter of Rights & Freedoms
• Applies only to the government
– Controls all government agencies
– Does not apply to private relationships
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Charter of Rights & Freedoms
• Rights are not unlimited:
– s.1: reasonable limits
– s. 32(1): only applies to government
– s. 33: override clause – law valid for up to 5 years
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Charter Provisions
• S.2: fundamental freedoms
• S. 3 - 5: democratic rights
• S. 6: mobility rights
• S. 7 - 14: legal rights
• S. 15: equality rights
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Module 1.8: The System of Courts
• Pages 59-66
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The Court or Trial Process
• Canada has an open-court policy
• In-camera proceedings for security or sensitive matters
• Courts hear both private matters & public matters
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Differences in Civil & Criminal Trials
• The Parties are different:
– Criminal: Crown vs Accused
– Civil: Plaintiff vs Defendant
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Differences in Civil & Criminal Trials
• Procedure:
• Different procedures
– Civil cases involve the exchange of written
documents
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Differences in Civil & Criminal Trials
• Proof:
– Criminal: proof beyond a reasonable doubt
– Civil: proof on the balance of probabilities
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Differences in Civil & Criminal Trials
• Outcome:
– Criminal: jail, fine or other court-ordered process
– Civil: damages, injunction, specific performance
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Using the Courts
• Canada has a pyramid court structure:
– Lower level courts
– Superior courts & provincial appeal courts
– Supreme Court of Canada
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Federal Court System
• Hears federal matters over which the federal
government has exclusive jurisdiction
• 3 levels:
– Tax Court of Canada
– Trial Division of the Federal Court
– Appeal Division of the Federal Court
– Final appeal to the Supreme Court of Canada
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Business Law 1
Module 1.9: Using the Courts
• Pages 66-72
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From pre-trial to judgment
Must have:
1.
Standing to sue
2.
Must be within limitation period
3.
Must sue in correct jurisdiction
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Jurisdiction
May be defined in several ways:
– By the type of cases heard
eg. Criminal vs family
– By the geographical area
eg. B.C. vs Ontario
– By the value of the claim
eg. Small Claims for claims up to $25,000 in British
Columbia
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Civil Litigation Process
1.
Plaintiff files writ of summons
2.
Defendant files an appearance
3.
Pleadings begin: Statement of Claim
Statement of Defence
Counterclaim
Discovery
4.
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Civil Litigation Process
5.
Pre-trial conference
6.
Trial
7.
Judgment
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Findings
• Damages - general
- special
- punitive
• Specific performance
• Injunction
• Declaration as to rights
• Order as to costs
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Module 1:10: Legal Fees
• Page 72
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Costs
• Paid by unsuccessful party, in addition to any damages
awarded
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Party & Party Costs
– Only a portion of the actual costs incurred
– Set out in a published tariff
– Party & party costs are the usual costs awarded
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Solicitor-client costs
• Awarded in special circumstances
– For example, a frivolous or vexatious claim
• Include actual costs, lawyers fees
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Legal Costs
Risks to Successful Party
• Not all fees of the lawsuit are covered
• Difficulty in collecting an award
• Court decision may be appealed, with a long delay
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Legal Fees
Retainer
– Paid by client in advance
– Works as a deposit on fees & disbursements
– Held in lawyer’s trust fund
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Legal Fees
Lump Sum Payment
•
Fixed fee for a particular task
•
eg. Agreed upon price for a will
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Legal Fees
Hourly Fee
• Itemized list of time spent provided
• Fee based on number of hours spent
• Rate charged usually based on lawyer’s seniority
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Legal Fees
Contingency Fee Basis
• Lawyer charges a percentage of proceeds of successful
lawsuit
• Frequently used for motor vehicle claims and product
liability cases
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Legal Fees
Disbursements
• Paid by lawyer on behalf of client’s case
• Are costs such as court fees, expert’s opinions
• Client reimburses lawyer
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Business Law 1
Module 1:11: Alternatives to Court Action
Page 84
Module 1:12: Advantages & Disadvantages
of ADR
Pages 84-90
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Alternate Dispute Resolution
Negotiation
• Either casual or formal meeting between the parties,
perhaps through representatives, to try to solve the
dispute
• Non-binding
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Alternate Dispute Resolution
Mediation
– Mediator chosen by the parties
– Helps facilitate a non-binding settlement
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Alternate Dispute Resolution
Arbitration
– Arbitrator chosen by parties
– Passive role
– Makes a binding decision
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Why Use ADR?
Advantages:
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Flexibility
Less adversarial
Less expensive
Speed & finality
Confidentiality
Choice of decision maker
Certainty & enforceability
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Why Use ADR?
Disadvantages:
• Stare decisis not followed
• Procedural law not required
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