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Many problems overlap both the federal and provincial jurisdictions and
seem to have concurrent powers to regulate an activity. When both levels
pass legislation and conflict arises between the statutes, the federal
legislation prevails; the provincial law is nullified because of the need for
uniformity across Canada in areas of federal jurisdiction.
3. Argue that the interpretation of the legislation is wrong and the statute does
not apply to the particular conduct.
Chapter 2
Substantive Law: the rights and duties that each person has in society
Procedural Law: rules that deal with how substantive rights and duties may be
enforced
Two Key Sources of Law:
1. The government through legislation: legislation is made by federal,
provincial, and even local governments and includes, for instance,
regulations passed by a licence committee of a town council.
2. The courts through case decision
Stare Decisis- Stand by a previous decision (theory of precedent)
NOT ABSOLUTE
Though judges may be influenced by all prior decisions, they are
onlybound by those made by higher level courts.
There are distinctions between certain situations, and if there are
enough, lawyers dont have to follow precedent
** the theory of precedent makes it quite difficult for judges o respond quickly
to rapid change in society.
A decision that was acceptable in 1985, may not be acceptable now
based on current social standards etc.
Courts of the SAME LEVEL are reluctant to overrule precedents established at
the same level. The danfer in overruling decided cases too freely is that doing
so would undermine the needed consistency and Predictability in Law.
Supreme courts CAN overrule themselves in order to allow law to adapt
to changing standards.
Statutes
Grant authority to various administrative agencies of government to make
rules and regulations in order to carry out the purposes set out in the
legislation.
The Common Law
Canon Law: law created by the church which had its own jurisdiction and
courts in matters pertaining to itself, family law and wills
Court of Appeal:
The court may do one of 4 things:
1. Agree with the trial judge and dismiss the appeal
2. Agree with the appellant and reverse the trial judgement
3. Vary the trial judgement in part
4. Declare that the trial judge erred in failing to consider certain facts and send
the case back for a new trial in the lower court
Provincial Court System
The Provincial Court System
Deals with matters of private and public law.
The Courts of First Instance
Witnesses give evidence and initial judgements are made
Small Claims Court
Handles private disputes for smaller amounts of money.
Costs of taking action are low
The busiest civil court
Provincial Division
Hears criminal cases of almost every type except murder, treason, sexual
assault and manslaughter.
Holds preliminary hearings in prosecution of these crimes to decide whether
there is enough evidence to proceed to Superior Court trial
No jury trials- if they want a jury, they must go to the supreme court
Anyone charged with a criminal offence with 5 or more years of prison has
the right to a jury.
Superior Trial Courts
Surrogate Court (Probate Court)
Supervises the estates of deceased persons.
Appoints administrator to wind up the affairs of anyone who dies without
leaving a will, settles disputes ovet the validity of wills and the division of
assets, and approves the accounts of execurots and administrators.
General Division or Supreme Court
Unlimited jurisdiction in civil (private) and criminal actions.
Federally appointed judges sit in this court that deals with divorce and most
serious criminal matters as well as all civil disputes outsite of the jurisdiction
fo small claims court.
May act as court of appeal for less serious criminal matters heard in
Provincial Division.
Intermediate Appellate Court
The Court of Appeal
All matters disputed after the court of first instance are brought here
The Federal Courts
Supreme Court of Canada
The final court of appeal in Canada.
Consists of 9 judges
Hears appeals from both the provincial couts of appeal and the federal
court of Canada
Special jurisdiction under the supreme court act to rule on the
constitutionality of federal and providnctial statutes when they are
referred to the court by the federal cabinet.
In private actions, the appellant must obtain special permission from
the supreme court to appeal.
VERY few private matters are granted permission to appeal in supreme
court, so the provincial court of appeal is the last resort.
Courts of first instance:
Tax Court of Canada
Hears appeals of tax payers against assessments by the Canada Revenue
Agency.
The federal Court of Canada
Two divisions: 1) Trial Division 2) Appeal Division.
Exclusive jurisdiction: disputes concerning ships and navigation, lawsuits
against the federal government, patents, copyrights, trademarks
A large area of concurrent jurisdiction exists, where the plaintiff may sue
either in provincial or federal court. E.g. a person injured by careless
operation of a government motor vehicle may sue in a provincial court.
Intermediate Level Appeal
Federal Court of Appeal
Hears appeals from the federal tax court and the federal court of Canada trial
division.
Matters from the federal court of appeal are appealed to the supreme court of
Canada.
Costs
Who provides funds for the court system?
o Costs
Time away from employer and lost energy for litigants
Time of highly trained and expensive judges and court officials.
o Governments pay the price of sustaining court system, including
salaries of the ejudges, registrars, clerks, as well as the maintenance
of buildings.
o Litigants pay a portion of overhead costs
Soliciter- Client Fees
o Litigants pay lawyer fees. Intentional Torts are those where the
activity or conduct is done deliberately, not by accident.
o E.g. you shake someones hand and accidentally break their fin
There is LEGAL AID, where the government pays for many
legal services for low-income litigants.
Fee consists of charges for time spent discussing the case and
helping the client pursue or defend the action.
Costs are HIGH and often deter lawsuits
Party and Party Costs
o Loser Pays rule: the winning partys legal costs should be paid by
the losing side by an award known as PARTY AND PARTY COSTS.
o The party in party costs may not cover the entire soliciter-client fees
and as a result, sometimes the judge will award TOTAL COSTS to be
paidbut this is rare.
Chapter 3
Intentional Torts
gers.
o You intended to shake the persons hand, and therefore the contact
was intended, but you did not intend to break their fingers. The harm
was unintended, but this is still battery.
Harm or damage must occur for any tort to be actionable.
o E.g. if someone trespasses on your land, there would be no reason to
sue unless there were damages.
Assault and Battery
Assault: the threat of violence
o