Post on 04-Jan-2016
Part 1 – Introduction to the Law
Chapter 1 – The Law and the Legal System
Prepared by Michael Bozzo, Mohawk College
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Learning the Law The Legal Environment of Business The Nature of Law Rights versus Privileges The Role of Law Development of Law Sources of Law Constitution and the Charter of Rights Classification of Laws
Chapter 1 – The Law and the Legal System
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Business Law is important to Business Persons A knowledge of legal issues is essential to the
making of proper risk management decisions Learning the history of law helps us to better
understand the law in its present day context We need to understand the types of basic legal
issues that affect business planning/operations We also need to be aware of developments in
law that may impact our specific type of business
Learning the Law
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Business lawDivided into a number of general areas○ Tort law – injuries to another's person, property or
reputation○ Contract law – day-to-day operations of a business○ Business Organizations
Partnership, sole proprietorship, corporation, certain trusts
○ Land Law○ Intellectual Property○ Environmental Law
Legal Environment of Business
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Reflects the society we live inHistorical influencesDefinitions
Society’s rules and processes that try to create fair and predictable outcomes in our relationships
Rules of civil conduct
Nature of Law
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Distinguish between a right and a privilege Right – are things we can do with impunity
Others have a duty not to interfere with our rights i.e. Freedom of Speech
Privilege – We earn a privilege under certain circumstances and if improperly exercised it can be taken away by the State i.e. Driver’s Licence
Rights can become privilegesDue to social pressure or the state’s desire for funds
Rights versus Privileges
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Law – body of rules of conduct that are obligatory
Sanctions imposed if a rule is violated Social Control – using laws to shape
society
Role of Law
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Three Functions of the Law1. Settling Disputes2. Establishment of Rules – to bring
order and minimize conflict3. Protection – of one’s self,
possessions, ideas.
Role of Law
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Within the Family and within the Tribeword of mouth from generation to generationEarly form of precedent
Within the City-StateFormation of governments to deal with disputesBalance between common good and individual
freedomRoman Empire, Western Europe, Middle East
Development of the Law
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Customary LawReligious lawsCommunity based
Pre-Norman EnglandRoman law followed by Germanic
influence to the Norman conquest in 1066
Common Law
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Norman EnglandPower consolidated with the King and the
King’s justicesCentral judiciary established under King
Henry II○Beginning of the precedent system of
common law○Written records began to be kept
Common Law – Rise of the Courts
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Common Law Law as found in the recorded judgments of
the courts know as “case law” “Statutes” are laws based by a properly
constituted legislative body/government Judicial interpretation and application of
“statute law” creates case law
Sources of Law
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Stare Decisis – Latin Phrase- “to let a decision stand” applies if decision:1. From the judges own court – Persuasive 2. Form a court of equal rank – Persuasive 3. From a court of higher rank - Binding
This is a basic Judicial Principle that Judges in lower courts must follow higher court direction when dealing with similar facts and issues
Sources of Law
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Creates certainty and predictability Predictable yet flexible
More flexible than a civil codeCan adapt to social changes such as
same sex marriageRequires familiarity with ongoing
evolution of statute and case law
Common Law
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Canon Law – church lawOriginal jurisdiction over religion, family, marriage,
morals, estatesInfluence today (Sunday shopping laws,
Ecclesiastical Courts) Merchant Law
Customs or rules established by merchants to resolve disputes
Example today would be the sales of goods legislation
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Sources of Law
EquityRules originally based on decisions of the King
rather than on the lawFairness, equality, justiceOvercomes the harshness and rigidity of the
common lawTakes precedence over common law when
equity and common law conflictOver time decisions of the King became
principles of equity and eventually equity and common law merged
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Sources of Law
Statute Latin word “statutum” meaning “it is
decided”Laws made by governmentsResult of legislative processDebated, voted upon and passed through
a strict process established to protect democratic principles
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Statute Law
Process –Slightly different Federally and Provincially
1. Bill – proposed law presented to a legislative body2. Motion – decision to read a bill the first time 3. Royal Assent – granted by the Governor General or
Lieutenant Governor after required readings- Required in order to become law
4. Proclaimed – when a law becomes effective Revised Statutes – updated or amended to
reflect changes in society○ Updates of current laws are now done online
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Statute
Influence of the French Civil Code systemA body of written law that sets out private
rights of the citizens of the stateHistorical from Prussia and codified by
Napoleon in the 1800’sRecent code is from 1994.
Quebec’s Civil Code
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Codification of the common law into statutesBills of Exchange Act; Partnership Act; Sale
of Goods ActTook place during late 1800’sAdvantage over common law is certaintyStill requires judges interpretation
Codification of Common Law
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A body of rules governing the application of statutes to activities regulated by administrative tribunals or boards
Regulations – procedural rules made under a statute
Administrative Tribunals – agencies created by legislation to regulate activities or do specific things
Power is delegated from Legislative body to Tribunal or Board
Decisions may be subject to judicial review
Administrative Law
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Constitution - Basis upon which a state is organized, and the powers of
government definedThe supreme law - Rules for making Laws2 Major Parts○ Canadian Charter of Rights and Freedoms○ Amending Formula
1867 B.N.A. Act and 1982 Canada ActLegislative bodies that do not follow constitutional rules
risk having their laws declared unenforceable or ultra vires
Constitutional Foundations
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Division of PowersSection 91: Federal powersSection 92: Provincial powersGovernments are limited to making laws
within their area of power Residual power
given to the federal government; all matters not expressly given to the provinces belongs to the federal government
Constitution
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Sets out basic rights and freedoms of all Canadians that governments are to respect
Entrenched in the Constitution – difficult to change
Section 1 (Reasonable Restrictions)The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Charter of Rights
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Notwithstanding Clause (s.33)Permits the government to pass legislation
that conflicts with or overrides charter rights by way of a “notwithstanding clause”
Some sections of the Charter cannot be overridden
Sunset clause – s.33 laws passed under this section last for a five year period, unless renewed
Charter of Rights
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S.2Freedom of conscience and religionFreedom of thought and expressionFreedom of the pressFreedom of peaceful assemblyFreedom of association
Fundamental Freedoms
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Mobility Permits free movement within Canada
Personal LibertyEnjoy life without interference of the StateLife, liberty and security of the personRight to be free from unreasonable search
and seizureFree from arbitrary detention or
imprisonment
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Other Rights
Right to Due ProcessInformed of rights on arrestRight to a lawyerOnly arrested for committing an offenceInnocent until proven guiltyRight to fair trials, reasonable bail
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Other Rights
Equality RightsEvery individual is equal before the lawNote language of charter language: person,
citizen, individualNo discrimination based on race, creed, colour,
religion, sex, age, national or ethnic origin or any mental or physical disability
Affirmative action is allowed for disadvantaged groups
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Other Rights
Language Rights2 official languages of English and FrenchGovernment (federal) to provide services in
both official languagesRights of education to be made available in
preferred official language
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Other Rights
Apply to the courts to challenge legislation that offends Charter rights
Charter only applies to governments not to private groups or individuals
Private matters are dealt with through Provincial human rights legislation
“Read Into” the recent trend of courts to read into the Charter words or provisions that the legislative bodies did not
Reference Cases – example is the Same Sex Marriage case
Enforcement of Rights
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Substantive Law All laws that set out the rights and duties of
individuals Procedural Law
Procedures taken to enforce a substantive law Substantive Right
An individual right enforceable at law Public Law
Relates to relationship between governments and persons
Private Law Relates to relationship between individuals
Classification of Laws
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Law is the means by which state maintains social control
Courts used as vehicle of enforcement Common law and statute law exist today
Rule of Precedent “stare decisis” allows for judicial interpretation of laws and a hierarchy of courts
Charter RightsS.1 rights are not absoluteS.33 can be overridden with notwithstanding clause
Substantive rights and law are enforced or applied through procedural law processes
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SUMMARY