week 1 - intro to law (1)

The Law

Definition of Law

  • Rules that govern behavior.

  • Carry legal consequences.

  • Enforceable by the state.

  • Legitimacy accepted by the authority of the state.

Purpose of Law

  • Provides "justice"; often referred to as the justice system.

  • Justice: Can refer to fairness of outcome or fairness of process.

Sources of Law: The Common Law

Historical Background

  • Common Law emerged in England around pre-1066 after the fall of the Roman Empire.

  • England was divided into various jurisdictions.

Norman Conquest

  • William the Conqueror invaded in 1066.

  • Legitimated his claim to the throne through Anglo-Saxon law.

  • Offered "King’s Justice" to the people.

King’s Justice

  • Aimed to avoid local biases; disputes could be settled by the king or justiciar.

  • Established a system of law that was common throughout the kingdom.

  • By the 11th century, traveling judges recorded cases and judgments.

Development of Common Law

  • Judgments recorded in a central location (1272 AD).

  • Judges referenced previous cases to make decisions in current cases.

  • Utilized existing legal resources to determine law.

Law Merchant

  • Merchant guilds developed rules for transactions.

  • Judges applied these rules to evolve common law, especially regarding contract and property law.

Canon Law

  • Established rules concerning religion, family, and morality by the church.

  • Introduced rules of equity that allowed petitions for relief in cases where common law seemed unjust.

Common Law Mechanism

Judge-Made Law

  • Court decisions in previous cases applied to new cases with similar facts.

  • Stare Decisis: Means "the decision stands"; relies on previous case precedents.

Legal Concepts

  • Ratio Decidendi: The reason for the decision; only this aspect is binding.

  • Obiter Dicta: Remarks made in passing; not binding on future cases.

Court Hierarchy

  • Higher courts’ decisions bind lower courts.

  • Trial courts do not create binding precedents but can appeal on points of law.

Common Law Strengths and Weaknesses

  • Exploration of strengths and weaknesses needed.

Statute Law

Definition

  • Codified laws enacted by legislative bodies at provincial or federal levels.

  • Example: Ontario’s Queens Park and Canada’s House of Commons.

Relationship to Common Law

  • Statutes can clarify or override common law.

  • Example: Parental Responsibility Act, 2000.

Statute Law Strengths and Weaknesses

  • Exploration of strengths and weaknesses needed.

Aboriginal & Indigenous Law

Definitions

  • Aboriginal Law: Legal rights of indigenous people and their relationship with the crown, covering treaty rights and land claims.

  • Indigenous Law: Rules created internally by indigenous peoples.

Legal Protections

  • Aboriginal rights protected under the Charter.

  • Recognizes existing sets of rights under land claims agreements.

Quebec: The Civil Code

Jurisdiction

  • Related to s. 91 of the Constitution Act 1867; provinces can legislate on property and civil rights.

  • In Ontario, private law encompasses common law and some statutes.

Civil Code of Québec Overview

  • Aligns with the Charter of Human Rights and governs personal and property relations.

  • The primary source of legal principles in Quebec, unlike binding decisions in common law.

Administrative Law

Overview

  • Regulatory statutes create administrative tribunals (e.g., Landlord and Tenant Board).

  • These tribunals make legally binding decisions within their narrowly defined authority.

Administrative Tribunals Examples

  • Include Ontario Human Rights Tribunal and Social Benefits Tribunal.

Importance of Administrative Law

  • Reasons for using administrative tribunals explained.

Constitutional Law

Overview

  • Defines limits of state authority through constitutional documents, including the Canada Act 1982.

The Charter of Rights and Freedoms

  • An entrenched bill of rights, amendable through a special formula requiring provincial consent.

Supreme Law

  • Any law inconsistent with the Charter is void.

  • s.1 limits the interpretation of rights by law as justified in a democratic society.

Judicial Activism

  • Comparisons between the Supreme Court of Canada and the U.S. Supreme Court with an emphasis on judicial activism.

Classification of Laws

Public vs. Private Law

  • Public Law: Involves state as a party (e.g., criminal law, regulatory offenses).

  • Private Law: Involves private entities (e.g., tort law, contract law).

Substantive vs. Procedural Law

  • Substantive Law: Principles concerning rights and obligations (e.g., contract formation).

  • Procedural Law: Guidelines on how rights are enforced, ensuring due process.

The Courts

Hierarchy of Courts

  • Provincial Court of Justice: Limited jurisdiction by statute.

  • Superior Court of Justice: Greater jurisdiction with a federal judge.

  • Small Claims Court: Limited to $35,000 claims.

Appeal Courts

  • Divisional Court: Hears appeals from administrative tribunal orders.

  • Ontario Court of Appeal: Has binding decisions over lower courts.

  • Supreme Court of Canada: Final appeals, with binding decisions at federal level.

Process in the Judiciary

Onus of Proof

  • In civil cases, the plaintiff carries the burden; in criminal cases, it's on the state.

Discovery

  • Criminal cases require full disclosure to the accused.

  • Civil cases involve a discovery process where documents are examined.

Legal Evidence

  • Types of evidence: Direct, Expert, and Hearsay.

Privilege

  • Solicitor-client privilege prevents lawyers from reporting client conversations.

Appeals

Process and Outcomes

  • Error of law may lead to several remedies for appeals.

  • Provincial appellate courts consist of 3-5 judges.

Law Reports

  • Various reporting services include All England Reports, Carswells, and Canlii.

Enforcement of Judgments

  • Processes to enforce court orders include garnishment and seizure of assets.

Alternative Dispute Resolution

Types

  • Negotiation: Parties work together informally.

  • Mediation: Incorporates a third party for facilitated discussion.

  • Arbitration: More formal, with arbitrators making binding decisions.

Damages

Remedies

  • General Damages: Non-quantifiable amounts.

  • Pecuniary Loss: Future earnings and costs of future care.

  • Non-pecuniary Loss: Pain and suffering.

  • Punitive Damages: To punish wrongdoers or make examples.

Costs in Litigation

  • Legal fees usually follow the cause; the losing party often pays the winning side's costs.