1-1 Part 1 – Introduction to the Law Chapter 1 – The Law and the Legal System Prepared by...

1-1-11

Part 1 – Introduction to the LawPart 1 – Introduction to the Law

Chapter 1 – The Chapter 1 – The Law and the Legal Law and the Legal SystemSystem

Prepared by Robert Malach, Prepared by Robert Malach, University of CalgaryUniversity of Calgary

1-1-22© 2009 McGraw-Hill Ryerson © 2009 McGraw-Hill Ryerson

LimitedLimited 1-1-22

Chapter 1 – The Law and the Legal SystemChapter 1 – The Law and the Legal System

Learning the LawLearning the Law The Legal Environment of BusinessThe Legal Environment of Business The Nature of LawThe Nature of Law Rights versus PrivilegesRights versus Privileges The Role of LawThe Role of Law Development of LawDevelopment of Law Sources of LawSources of Law Constitution and the Charter of RightsConstitution and the Charter of Rights Classification of LawsClassification of Laws

1-1-33

Learning the LawLearning the Law

Business Law is important to Business PersonsBusiness Law is important to Business Persons A knowledge of legal issues is essential to the making A knowledge of legal issues is essential to the making

of proper risk management decisionsof proper risk management decisions Learning the history of law helps us to better Learning the history of law helps us to better

understand the law in its present day contextunderstand the law in its present day context We need to understand the types of basic legal We need to understand the types of basic legal

issues that affect business planning/operationsissues that affect business planning/operations We also need to be aware of developments in law We also need to be aware of developments in law

that may impact our specific type of businessthat may impact our specific type of business

© 2009 McGraw-Hill Ryerson © 2009 McGraw-Hill Ryerson LimitedLimited 1-1-33



Legal Environment of BusinessLegal Environment of Business

Business lawBusiness law Divided into a number of general areasDivided into a number of general areas

Tort law – injuries to another's person, property or Tort law – injuries to another's person, property or reputationreputation

Contract law – day-to-day operations of a businessContract law – day-to-day operations of a business Business OrganizationsBusiness Organizations

– Partnership, sole proprietorship, corporationPartnership, sole proprietorship, corporation Land LawLand Law Intellectual PropertyIntellectual Property Environmental LawEnvironmental Law



Nature of LawNature of Law

Reflects the society we live inReflects the society we live in Historical influencesHistorical influences DefinitionsDefinitions

A set of rules that enable people to live together and A set of rules that enable people to live together and respect each others rightsrespect each others rights

Rules of civil conductRules of civil conduct



Rights versus PrivilegesRights versus Privileges

Distinguish between a right and a privilegeDistinguish between a right and a privilege Right – are things we can do with impunityRight – are things we can do with impunity

Others have a duty not to interfere with our Others have a duty not to interfere with our rights i.e. Freedom of Speechrights i.e. Freedom of Speech

Privilege – We earn a privilege under certain Privilege – We earn a privilege under certain circumstances and if improperly exercised it can circumstances and if improperly exercised it can be taken away by the State i.e. Driver’s Licencebe taken away by the State i.e. Driver’s Licence

Rights can become privilegesRights can become privileges Due to social pressure or the state’s desire for Due to social pressure or the state’s desire for

fundsfunds



Role of LawRole of Law

Law – body of rules of conduct that are obligatoryLaw – body of rules of conduct that are obligatory Sanctions imposed if a rule is violatedSanctions imposed if a rule is violated Social Control – using laws to shape societySocial Control – using laws to shape society



Role of LawRole of Law

Three Functions of the LawThree Functions of the Law1.1. Settling DisputesSettling Disputes

2.2. Establishment of Rules – to bring order and Establishment of Rules – to bring order and minimize conflictminimize conflict

3.3. Protection – of one’s self, possessions, ideas.Protection – of one’s self, possessions, ideas.



Development of the LawDevelopment of the Law

Within the Family and within the TribeWithin the Family and within the Tribe word of mouth from generation to generationword of mouth from generation to generation Early form of precedentEarly form of precedent

Within the City-StateWithin the City-State Formation of governments to deal with disputesFormation of governments to deal with disputes Balance between common good and individual Balance between common good and individual

freedomfreedom Roman Empire, Western Europe, Middle EastRoman Empire, Western Europe, Middle East



Common LawCommon Law

Customary LawCustomary Law Religious lawsReligious laws Community basedCommunity based

Pre-Norman EnglandPre-Norman England Roman law followed by Germanic influence to the Roman law followed by Germanic influence to the

Norman conquest in 1066Norman conquest in 1066



Common Law – Rise of the Courts Common Law – Rise of the Courts

Norman EnglandNorman England Power consolidated with the King and the King’s Power consolidated with the King and the King’s

justicesjustices Central judiciary established under King Henry IICentral judiciary established under King Henry II

Beginning of the precedent system of common lawBeginning of the precedent system of common law Written records began to be keptWritten records began to be kept



Sources of LawSources of Law

Common LawCommon Law Law as found in the recorded judgments of the courts Law as found in the recorded judgments of the courts

know as “case law”know as “case law” ““Statutes” are laws based by a properly constituted Statutes” are laws based by a properly constituted

legislative body/governmentlegislative body/government Judicial interpretation and application of “statute law” Judicial interpretation and application of “statute law”

creates case lawcreates case law

1-1-1313


Stare Decisis Stare Decisis – Latin Phrase- “to let a decision – Latin Phrase- “to let a decision stand” applies if decision:stand” applies if decision:

1.1. From the judges own court – Persuasive From the judges own court – Persuasive

2.2. Form a court of equal rank – Persuasive Form a court of equal rank – Persuasive

3.3. From a court of higher rank - BindingFrom a court of higher rank - Binding This is a basic Judicial Principle that Judges in This is a basic Judicial Principle that Judges in

lower courts must follow higher court direction lower courts must follow higher court direction when dealing with similar facts and issues when dealing with similar facts and issues

© 2009 McGraw-Hill Ryerson © 2009 McGraw-Hill Ryerson LimitedLimited 1-1-1313



Common LawCommon Law

Creates certainty and predictabilityCreates certainty and predictability Predictable yet flexiblePredictable yet flexible

More flexible than a civil codeMore flexible than a civil code Can adapt to social changes such as same sex Can adapt to social changes such as same sex

marriagemarriage Requires familiarity with ongoing evolution of Requires familiarity with ongoing evolution of

statute and case lawstatute and case law




Canon Law – church lawCanon Law – church law Original jurisdiction over religion, family, marriage, Original jurisdiction over religion, family, marriage,

morals, estatesmorals, estates Influence today (Sunday shopping laws, Influence today (Sunday shopping laws,

Ecclesiastical Courts)Ecclesiastical Courts) Merchant LawMerchant Law

Customs or rules established by merchants to Customs or rules established by merchants to resolve disputesresolve disputes

Example today would be the sales of goods Example today would be the sales of goods legislationlegislation




EquityEquity Rules originally based on decisions of the King Rules originally based on decisions of the King

rather than on the lawrather than on the law Fairness, equality, justiceFairness, equality, justice Overcomes the harshness and rigidity of the Overcomes the harshness and rigidity of the

common lawcommon law Takes precedence over common law when equity Takes precedence over common law when equity

and common law conflictand common law conflict Over time decisions of the King became principles Over time decisions of the King became principles

of equity and eventually equity and common law of equity and eventually equity and common law mergedmerged



Statute LawStatute Law

Statute Statute Latin word “statutum” meaning “it is decided”Latin word “statutum” meaning “it is decided” Laws made by governmentsLaws made by governments Result of legislative processResult of legislative process Debated, voted upon and passed through a strict Debated, voted upon and passed through a strict

process established to protect democratic process established to protect democratic principlesprinciples



StatuteStatute

Process –Slightly different Federally and Process –Slightly different Federally and ProvinciallyProvincially

1.1. Bill – proposed law presented to a legislative bodyBill – proposed law presented to a legislative body

2.2. Motion – decision to read a bill the first time Motion – decision to read a bill the first time

3.3. Royal Assent – granted by the Governor General Royal Assent – granted by the Governor General or Lieutenant Governor after required readingsor Lieutenant Governor after required readings- Required in order to become law- Required in order to become law

4.4. Proclaimed – when a law becomes effectiveProclaimed – when a law becomes effective Revised Statutes – updated or amended to Revised Statutes – updated or amended to

reflect changes in societyreflect changes in society



Quebec’s Civil CodeQuebec’s Civil Code

Influence of the French Civil Code systemInfluence of the French Civil Code system A body of written law that sets out private rights of A body of written law that sets out private rights of

the citizens of the statethe citizens of the state Historical from Prussia and codified by Napoleon in Historical from Prussia and codified by Napoleon in

the 1800’sthe 1800’s Recent code is from 1994. Recent code is from 1994.



Codification of Common LawCodification of Common Law

Codification of the common law into statutesCodification of the common law into statutes Bills of Exchange Act; Partnership Act; Sale of Bills of Exchange Act; Partnership Act; Sale of

Goods ActGoods Act Took place during late 1800’sTook place during late 1800’s Advantage over common law is certaintyAdvantage over common law is certainty Still requires judges interpretationStill requires judges interpretation



Administrative LawAdministrative Law

A body of rules governing the application of A body of rules governing the application of statutes to activities regulated by administrative statutes to activities regulated by administrative tribunals or boardstribunals or boards

Regulations – procedural rules made under a Regulations – procedural rules made under a statutestatute

Administrative Tribunals – agencies created by Administrative Tribunals – agencies created by legislation to regulate activities or do specific legislation to regulate activities or do specific thingsthings

Power is delegated from Legislative body to Power is delegated from Legislative body to Tribunal or BoardTribunal or Board

Decisions may be subject to judicial reviewDecisions may be subject to judicial review



Constitutional FoundationsConstitutional Foundations

Constitution -Constitution - Basis upon which a state is organized, and the Basis upon which a state is organized, and the

powers of government definedpowers of government defined The supreme law - Rules for making LawsThe supreme law - Rules for making Laws 2 Major Parts2 Major Parts

Canadian Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms Amending FormulaAmending Formula

1867 B.N.A. Act and 1982 Canada Act1867 B.N.A. Act and 1982 Canada Act Legislative bodies that do not follow constitutional Legislative bodies that do not follow constitutional

rules risk having their laws declared unenforceable rules risk having their laws declared unenforceable or or ultra viresultra vires



ConstitutionConstitution

Division of PowersDivision of Powers Section 91: Federal powersSection 91: Federal powers Section 92: Provincial powersSection 92: Provincial powers Governments are limited to making laws within Governments are limited to making laws within

their area of powertheir area of power Residual powerResidual power

given to the federal government; all matters not given to the federal government; all matters not expressly given to the provinces belongs to the expressly given to the provinces belongs to the federal governmentfederal government



Charter of Rights Charter of Rights

Sets out basic rights and freedoms of all Sets out basic rights and freedoms of all Canadians that governments are to respectCanadians that governments are to respect

Entrenched in the Constitution – difficult to Entrenched in the Constitution – difficult to changechange

Section 1 (Reasonable Restrictions)Section 1 (Reasonable Restrictions) The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms

guarantees the rights and freedoms set out in it, guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and law as can be demonstrably justified in a free and democratic society. democratic society.



Charter of RightsCharter of Rights

Notwithstanding Clause (s.33)Notwithstanding Clause (s.33) Permits the government to pass legislation that Permits the government to pass legislation that

conflicts with or overrides charter rights by way of a conflicts with or overrides charter rights by way of a “notwithstanding clause”“notwithstanding clause”

Some sections of the Charter cannot be overriddenSome sections of the Charter cannot be overridden Sunset clause – s.33 laws passed under this section Sunset clause – s.33 laws passed under this section

last for a five year period, unless renewedlast for a five year period, unless renewed



Fundamental FreedomsFundamental Freedoms

S.2S.2 Freedom of conscience and religionFreedom of conscience and religion Freedom of thought and expressionFreedom of thought and expression Freedom of the pressFreedom of the press Freedom of peaceful assemblyFreedom of peaceful assembly Freedom of associationFreedom of association



Other RightsOther Rights

Mobility Mobility Permits free movement within CanadaPermits free movement within Canada

Personal LibertyPersonal Liberty Enjoy life without interference of the StateEnjoy life without interference of the State Life, liberty and security of the personLife, liberty and security of the person Right to be free from unreasonable search and Right to be free from unreasonable search and

seizureseizure Free from arbitrary detention or imprisonmentFree from arbitrary detention or imprisonment




Right to Due ProcessRight to Due Process Informed of rights on arrestInformed of rights on arrest Right to a lawyerRight to a lawyer Only arrested for committing an offenceOnly arrested for committing an offence Innocent until proven guiltyInnocent until proven guilty Right to fair trials, reasonable bailRight to fair trials, reasonable bail




Equality RightsEquality Rights Every individual is equal before the lawEvery individual is equal before the law Note language of charter language: person, citizen, Note language of charter language: person, citizen,

individualindividual No discrimination based on race, creed, colour, No discrimination based on race, creed, colour,

religion, sex, age, national or ethnic origin or any religion, sex, age, national or ethnic origin or any mental or physical disabilitymental or physical disability

Affirmative action is allowed for disadvantaged Affirmative action is allowed for disadvantaged groupsgroups




Language RightsLanguage Rights 2 official languages of English and French2 official languages of English and French Government (federal) to provide services in both Government (federal) to provide services in both

official languagesofficial languages Rights of education to be made available in Rights of education to be made available in

preferred official languagepreferred official language



Enforcement of RightsEnforcement of Rights

Apply to the courts to challenge legislation that Apply to the courts to challenge legislation that offends Charter rightsoffends Charter rights

Charter only applies to governments not to private Charter only applies to governments not to private groups or individualsgroups or individuals

Private matters are dealt with through Provincial Private matters are dealt with through Provincial human rights legislationhuman rights legislation

““Read Into” the recent trend of courts to read into Read Into” the recent trend of courts to read into the Charter words or provisions that the legislative the Charter words or provisions that the legislative bodies did notbodies did not

Reference Cases – example is the Same Sex Reference Cases – example is the Same Sex Marriage caseMarriage case



Classification of LawsClassification of Laws

Substantive LawSubstantive Law All laws that set out the rights and duties of All laws that set out the rights and duties of

individualsindividuals Procedural LawProcedural Law

Procedures taken to enforce a substantive lawProcedures taken to enforce a substantive law Substantive RightSubstantive Right

An individual right enforceable at lawAn individual right enforceable at law Public LawPublic Law

Relates to relationship between governments and Relates to relationship between governments and personspersons

Private LawPrivate Law Relates to relationship between individualsRelates to relationship between individuals



SUMMARYSUMMARY

Law is the means by which state maintains social Law is the means by which state maintains social controlcontrol

Courts used as vehicle of enforcementCourts used as vehicle of enforcement Common law and statute law exist today Common law and statute law exist today

Rule of Precedent “stare decisis” allows for judicial Rule of Precedent “stare decisis” allows for judicial interpretation of laws and a hierarchy of courtsinterpretation of laws and a hierarchy of courts

Charter RightsCharter Rights S.1 rights are not absoluteS.1 rights are not absolute S.33 can be overridden with notwithstanding clauseS.33 can be overridden with notwithstanding clause

Substantive rights and law are enforced or Substantive rights and law are enforced or applied through procedural law processesapplied through procedural law processes

1-1 Part 1 – Introduction to the Law Chapter 1 – The Law and the Legal System Prepared by...

Documents

Transcript of 1-1 Part 1 – Introduction to the Law Chapter 1 – The Law and the Legal System Prepared by...