Summary of Chapter 1: The Canadian Legal System
Historical Basis
The legal system in Canada’s nine common-law provinces and territories is rooted in the
English common-law system, which has evolved to address various needs over time.
Initially, English law provided limited remedies through the "common law," a rigid system
with specific remedies for specific situations. When common-law remedies were
inadequate, individuals could appeal directly to the English monarch for equitable relief.
Over time, these appeals led to the establishment of separate "courts of equity," offering
fairer remedies grounded in principles of fairness and conscience.
Eventually, the common-law and equity systems merged into a single system, combining
established legal precedents with equitable principles to form a more flexible and just legal
framework. This unified system, still referred to as the common law, became the
foundation for the current Canadian common-law system.
The Theory of Precedent
Courts apply legal principles from previous decisions, known as the "theory of precedent."
This allows for flexibility in decision-making; courts can exercise equitable discretion to
adapt to changing societal values. However, changes to established precedents tend to
evolve slowly, providing predictability within the legal system.
Common Law and Legislation
Judge-made law is a key source of Canadian law, complemented by legislation enacted by
elected bodies.
Legislation refers to statutes created by elected legislatures, codifying either existing
common law or introducing new law. In lawsuits, the applicability of a statute may arise,
and courts are responsible for interpreting and applying the statute to the specific facts of
the case.
Some statutes also provide for regulations as an additional source of law. For instance, the
Professional Engineers Act of Ontario allows an elected and appointed council to establish
rules on examination scope for registration and regulate other professional matters,
including the designation of specialists.
Regulations, when created under an authorizing statute, become an enforceable part of the
law. Engineers must comply with relevant federal and provincial statutes and stay informed
of any amendments or new laws that impact their professional practice.
Federal and Provincial Powers
Under the Canadian Constitution (originally the British North America Act, 1867, and later
renamed the Constitution Act, 1982), legislative powers are divided between the federal
and provincial governments. Section 91 gives the federal government authority to make
laws for the “Peace, Order, and good Government of Canada” on matters not exclusively
assigned to provinces, such as trade, commerce, criminal law, and banking. Section 92
grants provinces power over matters of local concern, like property rights, direct taxation,
and provincial courts.
Disputes over jurisdiction may lead to challenges on whether a statute is “ultra vires”
(beyond authority). Before 1982, courts could void laws only if they exceeded the
government’s authority, following the British doctrine of Parliamentary Supremacy, which
left civil liberties unprotected from legislative infringement.
The Canadian Charter of Rights and Freedoms, introduced in 1982, changed this by
establishing fundamental rights, such as freedom of expression and association, and
empowering courts to strike down laws that violate Charter rights. The Charter limits
Parliamentary Supremacy but allows “reasonable limits” on rights if justified. Section 33,
the "notwithstanding clause," allows governments to override certain Charter rights
explicitly, though this is expected to be used sparingly.
The Federal and Provincial Court Systems
In Canada, the most authoritative legal precedents come from the Supreme Court of
Canada, followed by provincial Courts of Appeal. If a provincial court lacks a higher
domestic precedent, it may follow cases from other provinces or from other common-law
jurisdictions like England or the United States, with English precedents often preferred over
American ones.
Each Canadian province’s court system mirrors the English model, containing various
courts that handle specific matters. For example, Ontario’s court structure includes the
Superior Court of Justice and the Ontario Court of Justice. The Superior Court addresses
significant claims, federal criminal cases, and includes a Small Claims Court for minor
disputes. The Ontario Court handles domestic issues (excluding divorce) and provincial
criminal matters. Ontario’s court system is organized into eight regions, each with a
regional Senior Judge overseeing judicial resources.
The Court of Appeal is the highest appellate court within a province, while federal matters,
such as intellectual property cases, are handled by the Federal Court of Canada. The
Supreme Court of Canada serves as the nation’s final court of appeal for all matters.
The Canadian Charter of Rights and Freedoms
Enacted in 1982, the Charter limits the powers of government and ensures fundamental
rights for all Canadians, allowing courts to invalidate statutes that violate these rights.
Although it retains the doctrine of Parliamentary Supremacy, governments can impose
"reasonable limits" on rights, and Section 33 allows for certain overrides.
Court Systems
The Canadian court system includes federal courts, like the Federal Court of Canada and
the Supreme Court of Canada, and provincial courts, modeled after the English system.
Precedents from the Supreme Court hold the highest authority, with provincial courts
following their own appeal processes.
Public and Private Law
Laws are generally categorized as either public or private. Public law governs the rights and
duties between the government and individuals or private entities, with examples including
criminal law and constitutional law. Private law pertains to the rights and duties among
individuals or private organizations themselves. Key areas of private law covered in this text
include contracts and torts.
The Law of Quebec
Quebec's legal system is based on the Civil Code of Quebec, derived from the Napoleonic
Code, rather than the English common-law system used in other Canadian provinces. This
unique framework is detailed by Quebec lawyer Olivier Kott, a specialist in construction
and engineering law, in Chapter 34. Engineers working in Quebec are advised to consult
Quebec legal experts for accurate guidance. The term "civil law" in Quebec refers to a
codified legal system, unlike in the common-law provinces where "civil" typically indicates
"private" law, distinguishing it from criminal law matters.
The Rule of Law
Canada’s legal framework is founded on two main sources: court decisions and statutes
enacted by democratically elected legislatures. In this system, the judiciary and the
legislature operate independently, upholding the core principle of the Rule of Law—that no
one is above the law. An independent judiciary enforces laws and safeguards fundamental
rights and freedoms. Canada’s legal system also plays a critical role in business,
supporting interactions by enforcing contracts and using precedents to ensure predictable
outcomes in disputes. This structure exemplifies the protections provided by Canada’s
Rule of Law.
Basic Terminology
Basic Terminology
In order to appreciate references in this text, an understanding of some basic terminology
is important.
(a) Litigation—A lawsuit.
(b) Plaintiff—in civil litigation, the party bringing the action or making the claim in the
lawsuit. In criminal matters, the “plaintiff” is usually the Crown.
(c) Defendant—The party defending the action, or the party against whom the claim has
been made. In criminal matters, the “defendant’ is called the “accused.”
(d) Appellant—The party appealing the decision of a lower Court, in either civil litigation or
criminal matters.
(e) Respondent—The party seeking to uphold a decision of the lower Court that is being
appealed. The term applies in both civil litigation and criminal matters.
(f) Privity of contract—Describes the legal relationship between parties to a contract.
(g) Creditor—A party to whom an amount is owing.
(h) Debtor—A party that owes an amount to a creditor.
(j) Indemnification is essentially a promise to cover someone else’s losses directly,
without requiring them to pursue the original responsible party first. It’s a type of financial
assurance, often used in contracts to provide a straightforward way for one party to recover
any costs or damages from another.
Example of Indemnification:
Suppose ABC Corporation is a contractor building a new office for XYZ Company, and ABC
Corporation has hired subcontractors for electrical work. XYZ Company asks ABC
Corporation to include an indemnification clause in their contract. Under this clause, ABC
Corporation agrees to indemnify (reimburse) XYZ Company for any damages, costs, or
liabilities that might arise due to accidents, negligence, or failure on the part of the
subcontractors.
If a subcontractor causes damage while working on XYZ’s property, XYZ Company can
directly ask ABC Corporation for compensation, instead of dealing with the subcontractor
or waiting for any settlement processes. ABC Corporation is then responsible for covering
the losses right away.
Comparison with a Guarantee:
In a guarantee, there’s an extra step. Let's say Jason Smith guarantees ABC Corporation’s
loan to John Doe. If ABC fails to make a loan payment, John Doe must first attempt to
collect from ABC before going to Jason Smith for reimbursement. The guarantee serves as a
backup, while indemnification allows John Doe to claim from Jason Smith directly without
first seeking the original payer.
In short:
• Indemnification: Direct claim on a responsible party (e.g., Jason Smith) for
compensation.
• Guarantee: Backup assurance, only invoked if the primary party (e.g., ABC
Corporation) fails to fulfill their obligation.
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Here's a breakdown of major law categories—public, private, civil, and criminal law—along
with examples:
1. Public Law
Public law governs relationships between individuals and the state, focusing on issues that
affect society as a whole. It includes areas such as constitutional law, administrative law,
and criminal law.
• Example: Constitutional Law deals with rights and responsibilities outlined in a
country’s constitution. For instance, cases involving freedom of speech or the right
to vote fall under constitutional law.
• Example: Administrative Law covers regulations that government agencies must
follow. For instance, if a business disputes a fine from the Environmental Protection
Agency (EPA) for a pollution issue, it’s an administrative law case.
2. Private Law
Private law, or civil law in some jurisdictions, regulates relationships between individuals or
entities, typically addressing disputes without government involvement unless needed as a
neutral arbiter. It includes contract law, property law, tort law, and family law.
• Example: Contract Law deals with agreements between parties. If one party fails to
uphold their end of a business contract, the other can sue for breach of contract.
• Example: Family Law includes cases such as divorce, child custody, and adoption.
For instance, parents disputing child custody would do so under family law.
3. Civil Law
Civil law specifically covers disputes between individuals or entities, where one party
claims to have suffered harm due to the actions or negligence of another. Civil law seeks
compensation or other forms of resolution rather than punishment.
• Example: Tort Law addresses harm or injury claims. If someone is injured in a car
accident due to another’s negligence, they can file a personal injury lawsuit to seek
compensation.
• Example: Property Disputes involve conflicts over property boundaries or
ownership rights, such as a neighbor dispute over the placement of a fence.
4. Criminal Law
Criminal law is concerned with actions considered harmful or dangerous to society,
prosecuted by the state, and punishable by fines, imprisonment, or other sanctions.
Crimes range from minor offenses (misdemeanors) to severe ones (felonies).
• Example: Theft is a criminal offense. If someone steals from a store, they may be
prosecuted and, if found guilty, punished.
• Example: Assault involves causing physical harm or threatening someone, and the
state can file charges against the accused.
Other Law Types
• Corporate Law: Deals with the rights, relations, and conduct of businesses. For
instance, mergers and acquisitions (M&A) and shareholder disputes fall under
corporate law.
• Environmental Law: Governs regulations on protecting natural resources and
reducing pollution. For instance, cases on illegal dumping of waste come under
environmental law.
• Labor Law: Covers employment relations, including workers' rights and workplace
safety. If an employee sues an employer for wrongful termination, it's a labor law
issue.
In summary:
• Public Law: Governs society as a whole (e.g., constitutional, criminal law).
• Private Law: Regulates individual relationships (e.g., contract, family law).
• Civil Law: Focuses on resolving disputes and compensation (e.g., tort, property).
• Criminal Law: Concerns offenses against society with penalties (e.g., theft,
assault).
Understanding these distinctions helps clarify how laws organize and address different
types of disputes, responsibilities, and protections across society.
