Module 1: Introduction to the Law & the Legal System

Court hierarchy

Supreme Court of Canada (Highest court; final court of appeal)

Alberta Court of Appeal (Reviews eligible decisions from lower courts)

Alberta Court of King's Bench (Superior trial court; substantial civil claims and other jurisdiction)

Alberta Court of Justice (Provincial court; specified civil and other matters)

Where is the civil law system used in Canada?

Quebec is the only Canadian province that uses a civil law system, and only for private law matters. The rest of the country, including all other provinces and territories, operates under common law

In civil law, law is built by the legislature through codes. Elected bodies write comprehensive codes, and judges apply them to the facts of each case.

Steps in a civil lawsuit

1. Cause of action (Plaintiff identifies the legal wrong)

2. Pleadings (Plaintiff files a claim; defendant files a defence)

3. Service (Documents are formally delivered as required)

4. Discovery (Parties exchange relevant documents and obtain evidence)

5. Settlement / mediation (Parties may attempt to resolve the dispute)

6. Trial (Judge, and sometimes jury, hears evidence and arguments)

7. Judgment (Court decides liability and remedies)

8. Appeal / enforcement (Decision may be appealed or steps taken to collect)

Stare decisis

Requires courts to follow earlier judicial decisions (precedents) when handling future cases with similar facts or legal question

Cause of action

Legal basis for bringing a lawsuit. The set of facts that gives someone a legal right to sue.

What are the advantages of the common law system?

Law is built by courts through precedent. Judges decide real cases, and those decisions become binding rules for future similar cases.

What are the disadvantages of the common law system?

Law is scattered across many decisions, so it’s harder to navigate.

Who enacts statutes?

Legislatures (Federal, Provincial & Territorial)

 Does a statute trump common law or common law trump a statute?

Statute trumps common law (Statutes come from legislatures; common law comes from court decisions)

Regulations

Statutes set the rules, and regulations fill in the details.

Do private employers and businesses have to follow the Charter?

Generally NO. The Charter limits government; human rights and employment statutes limit private employers

Are the Charter (1982) rights limitless?

No. Charter rights have limits.

• Section 1: Limits are allowed if reasonable and justified in a free and democratic society.

• Oakes test: The law must have a pressing purpose and use proportionate means.

• Built-in limits: Some rights have qualifiers in their wording (e.g., “unreasonable” search).

• Section 33 (notwithstanding clause): Governments can override some rights for up to five years, renewable.

• Rights conflict: Courts balance competing rights, like expression vs. protection from hate speech.

Reasonable limits

Even if a law infringes a Charter right, the government may justify the restriction under section 1.

A standard section 1 analysis uses the Oakes test:

1. Does the law have a pressing and substantial objective?

2. Is the measure rationally connected to that objective?

3. Does it impair the right as little as reasonably possible?

4. Are the law's benefits proportionate to its harmful effects on the right?

Example: A government limits certain advertising practices to protect vulnerable consumers. The government could argue that the restriction is a reasonable and justified limitation on freedom of expression.

Section 33 - Notwithstanding clause

What it does: Lets Parliament or a provincial legislature expressly override section 2 or sections 7-15 of the Charter.

Duration: Expires after five years unless renewed.

Human rights legislation

Human rights legislation protects people from discrimination in specified areas, such as employment, services, and accommodation.

Commonly applies to private employers and businesses.

What laws ensure employers and businesses do not discriminate?

• Canadian Human Rights Act: Covers federally regulated employers (banks, airlines, telecom).

• Provincial/territorial human rights codes: Cover most other employers and businesses (e.g., Alberta’s Human Rights Act).

• Employment Equity Act: Federally regulated employers must improve representation of underrepresented groups.

• Pay equity laws: Equal pay for work of equal value.

Potential employer defences

BFOR (Bona Fide Occupational Requirement): An employer can justify a discriminatory rule if it is genuinely necessary for the job, adopted in good faith, and reasonably necessary, meaning accommodation without undue hardship isn’t possible.

Undue hardship: The employer must show accommodation can’t be provided without serious hardship, judged under the governing legislation and circumstances.

Example: A company can’t refuse to hire someone with a disability just because accommodating them is inconvenient.

Key point: Inconvenience is not automatically undue hardship.

What does the acronym ADR stand for?

ADR = Alternative Dispute Resolution

Methods for resolving legal disputes outside of court.

• Negotiation: The parties settle directly.

• Mediation: A neutral third party helps the parties reach their own agreement.

• Arbitration: A neutral third party hears both sides and makes a decision (often binding).

Key point: ADR is usually faster, cheaper, and more private than going to court.

What are the four stages of a lawsuit?

• 1. Pleadings: The plaintiff files a statement of claim, and the defendant responds with a statement of defence.

• 2. Discovery: Both sides exchange documents and information, and may question witnesses under oath (examination for discovery).

• 3. Trial: A judge (or sometimes a jury) hears evidence and arguments, then issues a decision.

• 4. Appeal / Enforcement: The losing side may appeal, and the winning side enforces the judgment (e.g., collecting payment).

Public Law

Governs the relationship between individuals and the government

(Criminal law, constitutional law)

Private Law

Governs disputes between individuals and businesses

(Contracts, torts, property disputes)

Constitutional law

Defines government powers and constitutional rights

Substantive Law

Defines your rights, duties, and what’s prohibited. It says what the law is.

E.g. Criminal Code offences (theft, assault), contract law, tort law (negligence), human rights codes.

Procedural Law

Sets out how the law is enforced and how cases move through the courts. It says how to apply it. E.g. Rules of court, filing deadlines, rules of evidence, the stages of a lawsuit.

Standard of Proof

How convincing the evidence must be for a party to win a case.

• Criminal cases: beyond a reasonable doubt. The Crown must prove guilt to a very high level of certainty. This is the highest standard because a person’s liberty is at stake.

• Civil cases: balance of probabilities. The plaintiff must show their version is more likely true than not (over 50%).

Beyond a reasonable doubt

Criminal.

Guilt must be proven so strongly that no reasonable doubt remains. Close to certainty, but not absolute. The Crown must meet it.

Balance of probabilities

Civil.

The claim is more likely true than not. Usually the plaintiff must meet it.

Burden of proof

Who has to meet the standard. In criminal cases it’s the Crown. In civil cases it’s usually the plaintiff.

Class actions

One or more representative plaintiffs sue on behalf of a larger group with similar claims.