Introduction to

Canadian Law
Peter Bowal
Barrister and Solicitor
Professor of Law
Haskayne School of Business
University of Calgary

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About the Instructor

B.Comm. (Hons.) (U. of A., 1980)

LL.B. (Osgoode Hall Law School, 1982)
LL.M. (Hons.) (University of Cambridge, 1986)
at University of Calgary since 1991
areas of academic interest
employment law and whistleblowing
other:
practising lawyer
former Presiding Justice of the Peace
former producer and host, LawTalk on QR77 radio

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This Course
Significant prescribed reading
text and judicial decisions

read in advance of the class meeting

analytical, qualitative subject

no single answer to questions
reasoning and oral & written communication are important

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HOW TO SUCCEED in this course:
Read all the course material

Attend class and contribute to discussion

Work through practice questions at end of

chapters and on textbook website

Considerhow this material relates to the

world around you today
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 Introduction
most Canadians get no formal education in law
all or nothing approach to legal education
entertainment programming/pop culture
significant mythology attends the subject
this course assumes no prior legal knowledge
lawis parochial: bound to territory
most potent constraint on business decision-
making

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In this Part . . .
Introduction to our legal system:
what is law and our legal system
purpose of law/legal system
sources and categories of law
judges and courts
common law system and how it works
the civil litigation process and other methods
of resolving disputes

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Learning Objectives
Appreciation of the role of law in business

How to find and learn the law

to question it and not be intimidated by it

Basicknowledge of several substantive

topics of relevance to business

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DEFINING LAW:
Five elements:
Set of rules / prescriptions for human conduct
Made by a public law-making authority
General application
Enforcement by the state
Sanctions

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LIMITS OF THE LAW:
Unintended consequences: Askov
Law cannot fix all our social problems
Limitations of the written word
what does it mean in a specific situation?
Enforcement limitations

Case Study:
Becker v. Pettkus

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THE LEGAL SYSTEM
Law plus:

Institutions/facilities

People and occupations

Bound together by core principles

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CORE PRINCIPLES OF THE
CANADIAN LEGAL SYSTEM
Startingpoint of the Constitution
Rule of Law
Personal autonomy
Transparency
Controls on state (governmental) power
Non-retroactivity
Content and process of law = moral

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CORE PRINCIPLES OF THE
CANADIAN LEGAL SYSTEM
Certaintyand predictability
Independence from government
of judges
of lawyers
No contradictions
Formality and decorum
Justice: means are as important as the ends
Compliance must be possible
Appeals
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CATEGORIES OF LAW
Substantive vs. procedural
what the law is vs. how to use the law

Public law
government always a
party in the public interest

Private law
most business law is private law
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Categories of Law
 World Legal Systems
[see University of Ottawa website]

Civil Law System most prevalent

Common Law System our Alberta system

Muslim Law System

Mixed Legal Systems Canadian system is

mixed
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SOURCES OF LAW
Depend on the system of law
Both major legal systems found in Canada
civil law comprehensive Civil Code
common law judges and their written
judgments in specific cases
primarily for private law
All legal systems have legislatures
not necessarily democratic
usually enacts public law
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Definition of CIVIL LAW
A system of law (compared to common
law system)
Private law
Civil liberties
Local (in the sense of civic govt, defence)

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Meanings of Common Law

In the Legal System:

A world system of law (vs. civil law system)
Judge-made law (ie. not legislation)

Outside the Legal System:

A form of marriage-like domestic relationship
without formal marriage
this meaning has nothing to do with legal system
this relationship now recognized by law as

equivalent to marriage (rights and obligations)

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Common Law Judges

Greatest source of private law

Judges are considered a branch of
government
Judicial independence
Physical security, remuneration, reporting structure,
lifetime appointment, no politics
All Canadian judges are appointed (unelected)
accountability?
criticisms of judicial activism
Roles of Our Judges
Fillin the gaps with the common law
Interpret and apply legislation
Interpret and apply constitution (called
judicial review of government action)
Other:
ceremonial
speeches
Royal Commissions, etc.
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Judicial Precedent
Centralconcept to common law system
Persuasive (non-binding) vs. Binding
Binding precedent:
Identical legal issue(s)
Similar material facts
Same or higher court in the jurisdiction
Judicial dissents

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Legislation

Four different legislatures in Canada

Various forms of legislation

Usuallywritten by lawyers to be read and

used by other lawyers and judges
not easy to find and understand

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Legal Jurisdiction
Delineates power of legal authorities
(eg. police, courts, legislatures have power defined by
jurisdiction)
Acting outside jurisdiction = error of law
Courts:
standing (locus standi)
geographical/territorial (judicial districts)
time (limitations periods)
original vs. appellate
monetary vs. substantive
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Hierarchy of Courts with Jurisdiction in each Province

Supreme Court of Canada

- 9 judges of which at least 3 from Qubec (others
representative of the regions)
- permanent in Ottawa
- no new evidence (ie. no issues re-tried here)

Federal Court of Canada

- substantive jurisdiction limited to
where federal government is a party or
over exclusive federal jurisdiction (eg.
military, copyright)

Trial Appellate Tax

Division Division Court

Court of Appeal
- does not hear facts again (ie. legal issues only)
- normally sits in "panels" of judges

General Superior Trial Court

- "inherent jurisdiction" (appellate and original) Master
- unlimited monetary jurisdiction
- larger population centres served
- all serious criminal offences plus major civil interests
such as divorce, large monetary disputes Taxation
- 1 judge alone or judge with a jury Officer
Bankruptcy Court Surrogate Court

Provincial Court
Traffic Family/Youth Criminal Civil
monetary limit
varies

Justice of the Peace

Courts in Calgary

Calgary Courts Centre

601 - 5 Street SW
Calgary, Alberta T2P 5P7

location of the PROVINCIAL COURT OF

ALBERTA (all 4 divisions) and

COURT OF QUEENS BENCH OF ALBERTA

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Courts in Calgary

COURT OF APPEAL OF ALBERTA

2600, TransCanada Pipelines Tower, 450-1st St., S.W.
Calgary, Alberta T2P 5H1

Federal Court of Canada

635 - 8th Avenue S.W.
Calgary, Alberta (occasional sittings)
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Reporting of Judicial Decisions
Judicial decisions are also called cases
Oral (from the bench) decisions
Need to be able to find written precedents

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Reporting of Judicial Decisions

Commercial reporting of decisions

By jurisdiction
By subject (eg. criminal, employment)
Style of cause (ie. name of the case by
parties names)
Citation (how to find the written case)

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 Finding Law
Law libraries accessible to the public in Calgary
(all offer reference services during business hours):
Faculty of Law, University of Calgary
Law Society Library, 5th floor, Calgary Courts Centre
Calgary Public Library (basic collection)
Good free online sources: www.canlii.org
City of Calgary webpage (Bylaws)
Alberta courts: http://www.albertacourts.ab.ca/
Supreme Court of Canada:
http://scc.lexum.umontreal.ca/en/index.html 29
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Briefing a Case

FILAC:
Facts
Issues
Law
Analysis
Conclusion
[any other comments/observations?]

See sample Newfoundland Telephone case brief 30

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QUESTIONS
and
COMMENTS?
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