PART I
LEGAL FUNDAMENTALS
CHAPTER 1
LAW AND THE LEGAL SYSTEM
LEARNING GOALS
1. To provide an understanding what a law is, its sources, and how it is enforced.
2. To provide an outline of the legal system and its operation.
3. To outline alternative methods of resolving disputes between persons or
businesses.
CHAPTER COMMENTARY
Chapter 1 is introductory in nature, and provides a general background concerning the
nature of law, how laws developed, the general need for some rules to govern the behaviour
of individuals, and the establishment of the various fundamental rights and duties of
persons in society. It also examines the legal system and how it is used to resolve disputes.
In class discussion, special emphasis should be placed upon the sources of law in
order that students may have a clear idea of what they are and where they may be found.
Many students fail to realize that the common law and equity represent a large body of law,
and the scope and application of these sources of law should be emphasized in class
discussion of the chapter. In the context of the courts and the law, the doctrine of precedent
should be noted, and its purpose and application discussed with emphasis on the need for
"predictability" in the application of the law to cases that come before the courts. It would
be worthwhile to note as well that some judges of the Supreme Court of Canada have
expressed the view that they, as judges of the highest court in the land, do not consider
themselves bound by the doctrine, but would only change a common law rule where it had
become inappropriate in a modern social setting. (This point is not set out in the text).
The role of the courts as the chief interpreter of the constitution is also noted, and
should be emphasized in any class discussion of the enforcement of rights under the
Charter. The Charter of Rights and Freedoms is set out in Appendix ‘A’ of the text for
,reference by students. As an approach to teaching this part of the chapter, a systematic
examination of the fundamental rights and freedoms may be made with the class requested
to provide a fact situation related to a freedom or right, and then have the class speculate as
to how the Charter might be interpreted by the court as it relates to the matter. With each
fundamental right or freedom it is important to emphasize that the freedom or right must
be viewed in the light of s.1 which makes the right "subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society," and
not absolute. The "notwithstanding" clause (s. 33) which permits legislatures or parliament
to override the Charter rights should be noted as well. Students should note that the
province of Quebec used (s. 33) to override this decision of the Supreme Court of Canada,
and passed Bill 178 to require "French only" signs on all Quebec businesses.
The organization of the Charter itself provides an orderly approach to discussion of
the nature of the rights and freedoms granted under it, as well as the method of
enforcement. With respect to the latter, it is readily apparent that most of the rights and
freedoms are those which the framers of the constitution felt should be enshrined to protect
them from encroachment or interference by governments.
A final point to note and to emphasize in class is that the constitution includes ore
than the Charter of Rights and Freedoms. It also includes the original British North
America Act of 1867 (as amended over the years) which establishes the structure of our
government, and the legislative powers and jurisdiction of the provincial governments and
Parliament. Consequently, it is a lengthy and complex document which sets out not only the
rights and freedoms of the individual, but how Canada as a democratic society governs
itself. On this point it should be emphasized that legislative bodies may not exceed the
powers granted to them under the constitution, as the exercise of jurisdiction when none
exists renders such an act ultra vires and a nullity.
Statute law is defined on p. 7 of the text, and the process associated with this type of
law-making is described very briefly. Students should be informed that this process is
legislative as distinct from judicial. Discussion may then lead into the topic of Civil Codes,
and students may be asked to discuss the pros and cons of a civil code system vs. the
Common Law/equity system.
Chapter 1 also focuses upon the administration of the law. The text material includes
the structure of the courts in Canada, and as a class exercise, it might be useful to carry simple
criminal and civil actions (based upon easily understood incidents) through the various steps
and appeals to their final resolution at the highest appeal levels. In this fashion, the text
material may be re-enforced, and the various limitations on appeal, etc., noted in the process.
The distinction between criminal and civil proceedings should be emphasized, as
experience has indicated that students frequently fail to realize that an incident which gives
rise to both civil and criminal proceedings (such as a "criminal negligence" incident) would
follow two separate legal paths, one dealing with the criminal act, and the second, dealing with
the civil aspect.
, Some time should be given to the procedure by which judgments of lower courts
may be appealed. The conditions under which a judgment may be appealed should be
stressed (error of law, rejection of important evidence in reaching a decision, etc.) and the
appeal routes examined for both civil and criminal cases. These are depicted on the charts
in the text, but it should be noted that a number of provinces are in the process of revising
their court system, and the names of the courts and the appeal routes may change as well.
Since alternate dispute resolution (ADR) is considered by many business firms as a
more efficient system of resolving disputes, the topic should be opened for class discussion
as an alternative to the court system. Discussion should note the particular advantages of
(ADR) over the court system (speed of resolution, lower costs, etc.) but it should also be
noted that certain kinds of disputes still lend themselves to the courts for settlement.
Some time should be spent on the regulatory processes that governments use to
control business activities. It differs from what students may view as a legal process in the
sense that most of the ‘law’ or the rules are made by bureaucrats and enforced by them.
Students should be made aware that administrative agencies and commissions play a
significant role on the business scene as they represent the means by which the government
seeks to protect the public health and safety, ensure fair competition in the market place,
and generally protect the consumer from unfair business practices. The regulation of the
professions also ensures that a level of competence is established and maintained through a
licensing process.
Discussion of administrative agencies or commissions should also emphasize the
fact that the usual methods of regulating business and the professions is through a
registration or licensing system. The registration or license is the means by which control is
maintained, since in most cases the failure of a business or professional person to comply
with the rules or requirements set down for the business or profession could mean the loss
of the registration or license to carry on the business or practice the profession. Students
should also be made aware that the termination of a registration or the lifting of a license to
practice a profession or carry on a business must be in accordance with the rules of natural
justice, and a hearing process, and perhaps an appeal process must be made available to the
affected party to ensure fairness in the decision.
Students should also be made aware that administrative tribunals set down rules
and procedures to carry out the policy objective of the government, and that these ‘rules’
are usually set out in regulations made under the particular statute. These regulations
have much the same effect as statutes, but are subordinate legislation in the sense that they
do not follow the enactment process for ordinary legislation.
The Review Questions at the end of the chapter should provide a sufficient test of
student knowledge of the essential material, and are reproduced here with draft answers
and the appropriate page references for answer review.
, REVIEW QUESTIONS
1. What is the purpose of the law?
Answer:
The law is a means of social control as well as a method of resolving disputes.
2. How are laws usually enforced?
Answer:
The courts are the principal means of enforcement of laws.
3. Explain the common law system and how it relates to the function of the courts.
Answer:
The Common Law system is a system where the laws are not codified, but may be found in the
recorded judgments of the courts. Courts maintain a degree of consistency in the law by
following the doctrine of precedent (Stare Decisis).
4. What is the role of the doctrine of precedent with respect to the common law?
Answer:
The doctrine of precedent is an important theory. Judges are expected to apply previous
decisions to similar cases which come before them in order to maintain a degree of
consistency in the law. By following this doctrine, the law is not only consistent, but others
can predict how the law may be applied in similar cases.
5. How is Statute law created?
LEGAL FUNDAMENTALS
CHAPTER 1
LAW AND THE LEGAL SYSTEM
LEARNING GOALS
1. To provide an understanding what a law is, its sources, and how it is enforced.
2. To provide an outline of the legal system and its operation.
3. To outline alternative methods of resolving disputes between persons or
businesses.
CHAPTER COMMENTARY
Chapter 1 is introductory in nature, and provides a general background concerning the
nature of law, how laws developed, the general need for some rules to govern the behaviour
of individuals, and the establishment of the various fundamental rights and duties of
persons in society. It also examines the legal system and how it is used to resolve disputes.
In class discussion, special emphasis should be placed upon the sources of law in
order that students may have a clear idea of what they are and where they may be found.
Many students fail to realize that the common law and equity represent a large body of law,
and the scope and application of these sources of law should be emphasized in class
discussion of the chapter. In the context of the courts and the law, the doctrine of precedent
should be noted, and its purpose and application discussed with emphasis on the need for
"predictability" in the application of the law to cases that come before the courts. It would
be worthwhile to note as well that some judges of the Supreme Court of Canada have
expressed the view that they, as judges of the highest court in the land, do not consider
themselves bound by the doctrine, but would only change a common law rule where it had
become inappropriate in a modern social setting. (This point is not set out in the text).
The role of the courts as the chief interpreter of the constitution is also noted, and
should be emphasized in any class discussion of the enforcement of rights under the
Charter. The Charter of Rights and Freedoms is set out in Appendix ‘A’ of the text for
,reference by students. As an approach to teaching this part of the chapter, a systematic
examination of the fundamental rights and freedoms may be made with the class requested
to provide a fact situation related to a freedom or right, and then have the class speculate as
to how the Charter might be interpreted by the court as it relates to the matter. With each
fundamental right or freedom it is important to emphasize that the freedom or right must
be viewed in the light of s.1 which makes the right "subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society," and
not absolute. The "notwithstanding" clause (s. 33) which permits legislatures or parliament
to override the Charter rights should be noted as well. Students should note that the
province of Quebec used (s. 33) to override this decision of the Supreme Court of Canada,
and passed Bill 178 to require "French only" signs on all Quebec businesses.
The organization of the Charter itself provides an orderly approach to discussion of
the nature of the rights and freedoms granted under it, as well as the method of
enforcement. With respect to the latter, it is readily apparent that most of the rights and
freedoms are those which the framers of the constitution felt should be enshrined to protect
them from encroachment or interference by governments.
A final point to note and to emphasize in class is that the constitution includes ore
than the Charter of Rights and Freedoms. It also includes the original British North
America Act of 1867 (as amended over the years) which establishes the structure of our
government, and the legislative powers and jurisdiction of the provincial governments and
Parliament. Consequently, it is a lengthy and complex document which sets out not only the
rights and freedoms of the individual, but how Canada as a democratic society governs
itself. On this point it should be emphasized that legislative bodies may not exceed the
powers granted to them under the constitution, as the exercise of jurisdiction when none
exists renders such an act ultra vires and a nullity.
Statute law is defined on p. 7 of the text, and the process associated with this type of
law-making is described very briefly. Students should be informed that this process is
legislative as distinct from judicial. Discussion may then lead into the topic of Civil Codes,
and students may be asked to discuss the pros and cons of a civil code system vs. the
Common Law/equity system.
Chapter 1 also focuses upon the administration of the law. The text material includes
the structure of the courts in Canada, and as a class exercise, it might be useful to carry simple
criminal and civil actions (based upon easily understood incidents) through the various steps
and appeals to their final resolution at the highest appeal levels. In this fashion, the text
material may be re-enforced, and the various limitations on appeal, etc., noted in the process.
The distinction between criminal and civil proceedings should be emphasized, as
experience has indicated that students frequently fail to realize that an incident which gives
rise to both civil and criminal proceedings (such as a "criminal negligence" incident) would
follow two separate legal paths, one dealing with the criminal act, and the second, dealing with
the civil aspect.
, Some time should be given to the procedure by which judgments of lower courts
may be appealed. The conditions under which a judgment may be appealed should be
stressed (error of law, rejection of important evidence in reaching a decision, etc.) and the
appeal routes examined for both civil and criminal cases. These are depicted on the charts
in the text, but it should be noted that a number of provinces are in the process of revising
their court system, and the names of the courts and the appeal routes may change as well.
Since alternate dispute resolution (ADR) is considered by many business firms as a
more efficient system of resolving disputes, the topic should be opened for class discussion
as an alternative to the court system. Discussion should note the particular advantages of
(ADR) over the court system (speed of resolution, lower costs, etc.) but it should also be
noted that certain kinds of disputes still lend themselves to the courts for settlement.
Some time should be spent on the regulatory processes that governments use to
control business activities. It differs from what students may view as a legal process in the
sense that most of the ‘law’ or the rules are made by bureaucrats and enforced by them.
Students should be made aware that administrative agencies and commissions play a
significant role on the business scene as they represent the means by which the government
seeks to protect the public health and safety, ensure fair competition in the market place,
and generally protect the consumer from unfair business practices. The regulation of the
professions also ensures that a level of competence is established and maintained through a
licensing process.
Discussion of administrative agencies or commissions should also emphasize the
fact that the usual methods of regulating business and the professions is through a
registration or licensing system. The registration or license is the means by which control is
maintained, since in most cases the failure of a business or professional person to comply
with the rules or requirements set down for the business or profession could mean the loss
of the registration or license to carry on the business or practice the profession. Students
should also be made aware that the termination of a registration or the lifting of a license to
practice a profession or carry on a business must be in accordance with the rules of natural
justice, and a hearing process, and perhaps an appeal process must be made available to the
affected party to ensure fairness in the decision.
Students should also be made aware that administrative tribunals set down rules
and procedures to carry out the policy objective of the government, and that these ‘rules’
are usually set out in regulations made under the particular statute. These regulations
have much the same effect as statutes, but are subordinate legislation in the sense that they
do not follow the enactment process for ordinary legislation.
The Review Questions at the end of the chapter should provide a sufficient test of
student knowledge of the essential material, and are reproduced here with draft answers
and the appropriate page references for answer review.
, REVIEW QUESTIONS
1. What is the purpose of the law?
Answer:
The law is a means of social control as well as a method of resolving disputes.
2. How are laws usually enforced?
Answer:
The courts are the principal means of enforcement of laws.
3. Explain the common law system and how it relates to the function of the courts.
Answer:
The Common Law system is a system where the laws are not codified, but may be found in the
recorded judgments of the courts. Courts maintain a degree of consistency in the law by
following the doctrine of precedent (Stare Decisis).
4. What is the role of the doctrine of precedent with respect to the common law?
Answer:
The doctrine of precedent is an important theory. Judges are expected to apply previous
decisions to similar cases which come before them in order to maintain a degree of
consistency in the law. By following this doctrine, the law is not only consistent, but others
can predict how the law may be applied in similar cases.
5. How is Statute law created?
