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Legal System in Canada: Provincial vs. Federal Jurisdiction, Common Law vs. Civil Law

Constitutional issues: Employment and human rights complaints in Ontario

Linda decided that this trip was too much for her and decided to quit. She has been doing research online and wants to pursue making a claim to the Ontario Ministry of Labour or the Ontario Human Rights Tribunal and/or both and is unsure of what course of action to take. When the tubes finally arrived at the distribution centre, the tubes had significant rust and showed signs of contact with salty water. Trans-Global’s engineer has concluded that the coils are now good only for scrap. You review the bill oflading that is on file. You see that the bill of lading:

  1. Is a clean bill of lading
  2. Does not include a declaration of value
  3. States that all disputes should be resolved by the UK courts in the United Kingdom Each question must explain why and give a conclusion. Also, each question must refer to the case studies shown in the chapter if applicable.

What is the constitutional issue that Linda may face when making her employment and human rights complaints in Ontario; Will Linda’s case fall under a Provincial or Federal jurisdiction? (Chapter 1)

What kind of regulatory offence is the charge under section 84.1 of the Ontario Highway Traffic Act, and what defences, if any, are available. (Chapter 3)

Whether Linda will be obligated to pay the fine if found guilty. (Chapter 3)

Chapter 1 – Introduction to the Canadian Legal System Transportation Law 1 of 713

Chapter 1 – Introduction to the Canadian Legal System

Overview of the Canadian Legal System Canada’s legal system is complex, featuring two official languages (English and French), two legal traditions in common law and civil law (only for Quebec), two separate systems for processing cases — civil and criminal — and a multi-tiered court system that handles federal, provincial, and municipal laws.

As a former British colony, Canada’s judicial system hails from the British common law tradition. Though Canada is now completely independent from Britain, English common law still applies to the country, as it does to the United States and other former British colonies. Common law is basically a collection of precedents. These precedents then become the foundation on which other judges base their decisions to help clarify them when uniquely complicated cases arise (new or clearer precedents arising from specific legal cases are often called case law). In its most basic form, the common law idea of precedent means respecting the logic and definitions other judges have used when faced with similar situations. The opposite of the common law system is the civil law system, which is the French and Spanish tradition of writing very precise and specific laws. In the civil tradition, judges interpret laws in a strict and literal way that only considers the circumstances of the particular case, not historic precedent. Quebec is the only province that does not go by common law, embracing a more structured civil law system that stems from Roman law. The statutes are clearly defined and the judges enforce the law strictly as it is written. It relies less on case law and more on broad legal principles that have been codified, hence Quebec goes by its own Civil Code. Therefore judgments are more prescribed and cases are less open to interpretation from judges.

Regulatory offences: Section 84.1 of the Ontario Highway Traffic Act

Criminal law is generally understood to involve any effort to regulate or maintain public safety, social order or morality. This broad category includes all the most sensational and scary crimes, such as theft, murder, kidnapping, assault, and fraud. The Canadian Constitution gives the power to make criminal law exclusively to the Parliament of Canada, meaning almost all of Canada’s most “serious” laws are national in scope and apply equally across the entire country. A violation of a criminal law is called a criminal offence and often carries imprisonment as maximum punishment.

While criminal law governs relationships between individuals and the state, or Crown, which represents all Canadians, civil law affects private matters, rather than public interests. Unlike criminal laws, which seek to protect all Canadians from general danger, civil laws govern relationships between individuals orbusinesses. Civil laws generally regulate things like employment contracts, building leases, marriages, divorces, wills, and child custody agreements, and seek to protect individuals from abusing or exploiting each other. When one Canadian sues another — which they often do, usually for committing a tort, or act of harmful negligence — they are dealing with civil law. The constitution splits up authority for different types of civil law between the federal government and the provincial governments.

Canada’s legal system is divided into three tiers. The government makes and administers the laws through its executive (Cabinet), legislative (Parliament) and judicial (courts) branches.

The process of making laws starts with the Cabinet, or ruling party, which then presents the legislation to Parliament — composed of the House of Commons and Senate — for debate and approval. The final step involves the Governor General, or Queen’s representative, who must give the bill official “assent.”

The same process applies provincially, but the Queen’s representative is called the Lieutenant Governor.

Parliament can make laws for all Canada, but only about matters assigned to it by the Constitution. A provincial or territorial legislature, likewise, can make laws only about matters over which it has been assigned jurisdiction. This means these laws apply only within the province’s borders.

The government usually makes laws related to issues that apply to all Canadians, including constitutional rights, crime, aboriginal rights, national defence, trade, and patents.

The provinces handle laws concerning education, property, civil rights, the administration of justice, hospitals, municipalities, and other matters of a regional importance.

The Constitution Act (1867), originally called the British North America Act of 1867, establishes Canada’s dual legal system and enshrines the provinces’ jurisdictional rights over property and civil, or private, rights.

Once a law is enacted, it’s the role of the judiciary — judges who preside over cases in the courts — to interpret and apply it. While judges can’t make their own laws, their decisions can create legal precedents — a new way to interpret the law for future cases.

  • Provincial/territorial courts: these courts exist in every province or territory, except Nunavut, and deal with most criminal offences, family law matters (except divorce), young persons 17 and under in conflict with the law, traffic violations, regulatory offences, and claims involving money.
  • Provincial/territorial superior courts: Each province and territory, including Nunavut, has superior courts. These courts have different names and most provinces have their own Supreme Court that is separate from the Supreme Court of Canada. Some, like Alberta, even have a division called the Court of Queen’s Bench. These courts hear serious criminal and civil cases. They also are specialized to deal with certain family law matter such as divorce and property claims. The judges are appointed and paid for by the federal government and superior courts serve as the first level in the appeals process.
  • Provincial/territorial courts of appeal: These appellate courts hear appeals from decisions rendered in the provincial/territorial regular and superior courts. They usually sit as a panel of three judges, which are all federally appointed.
  • Federal courts: These courts, which consist of the Federal Court and Federal Court of Appeal, only deal with matters related to federal laws. Decisions by the Federal Court that get appealed are heard by the Federal Court of Appeal.

These courts mostly try cases stemming from inter-provincial and federalprovincial disputes, intellectual property proceedings, citizenship appeals, trade and competition cases, and cases involving Crown corporations or government departments. The Tax Court of Canada and Military courts are specialized arms of the Federal Court.

Supreme Court of Canada: This is the top court in Canada and the final court of appeal and has the final — and binding — interpretation of Canadian laws. The Supreme Court has jurisdiction over disputes in all areas of the law, including constitutional law, administrative law, criminal law and civil law, but only hears the most important cases. While the panel of nine judges — including a Chief Justices and eight fellow judges are appointed by the Prime Minister, they are independent and often make decisions counter to the government’s will. Under the Supreme Court Act, three of the nine judges must come from Quebec. The SCC also decides on key questions regarding the Canadian Constitution and the Charter of Rights and Freedoms. The Court also serves an advisory role to the government, which can ask for its opinion on important legal matters.

The role of the Department of Justice is to ensure that Canada's justice system is as fair, accessible and efficient as possible. The DOJ works with the federal government to develop policy and to make and reform laws. It also acts as the government's lawyer, providing legal advice, prosecuting cases under federal law, and representing the government in court. These responsibilities reflect the double role of the Minister of Justice, who is also the Attorney General of Canada. What is Law?

There are probably many different ways of describing what the law is. It is difficult to answer the question posed in the heading in one simple sentence or phrase. However, one thing is certain, and that is wherever people exist, it is inevitable that conflict will at some time exist as well.

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