Published on October 2, 2008
Today: 1. Finish History and Heritage of the Canadian Legal System 2. Introducing divisions of law
Joining of Common Law and Equity Rules of law and equity 96.(1)Courts shall administer concurrently all rules of equity 96. and the common law. R.S.O. 1990, c. C.43, s. 96 (1); 1993, c. 27, Sched. Rules of equity to prevail (2)Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails. R.S.O. 1990, c. C.43, s. 96 (2); 1993, c. 27, Sched. Act, Courts of Justice Act, R.S.O. 1990, C.43.
Political Developments and the Courts • Parliament composed of regional representatives • Acted as court of last resort • 1332: Split into House of Commons and House of Lords • Lords retain judicial function today • Parliamentary Supremacy, Responsible Government, and Judicial Independence
Adoption of English Law in Canada • Date of Introduction vs. Date of Reception • Continued oversight by Judicial Committee of the Privy Council until 1949 • Confederation through the BNA (Constitution Act, 1867)
Introducing Divisions of Law
System of writs led to modern branches of law
Contract Law: covenant, assumpsit, debt Tort Law: trespass vi et armis, trespass on the case, trover Administrative Law: certiorari, habeus corpus
modern divisions in law but also recent collapsing of divisions
Conflict of Laws Domestic vs. Foreign Law Domestic vs. International Law
Domestic vs. Foreign Laws
Conflict of Laws example Morguard Investments Ltd. v. De Savoye,  3 S.C.R. 1077.
Conflict of Laws example Morguard Investments Ltd. v. De Savoye,  3 S.C.R. 1077. De Savoye Morguard Investments
Conflict of Laws example Morguard Investments Ltd. v. De Savoye,  3 S.C.R. 1077. De Savoye Morguard Investments Ratio: “real and substantial connection”
Conflict of Laws example 2 Unifund v. ICBC,  2 S.C.R. 63, 2003 SCC 40.
Conflict of Laws example 2 Unifund v. ICBC,  2 S.C.R. 63, 2003 SCC 40. Marcia and Ronald Brennan Owner, driver Unifund and garage of Ontario Insurance Corp of British Columbia
Conflict of Laws example 2 Unifund v. ICBC,  2 S.C.R. 63, 2003 SCC 40. Marcia and Ronald Brennan Owner, driver Unifund and garage of Ontario Insurance Corp of British Columbia Ratio: Ontario Insurance Act inapplicable to ICBC
Domestic vs. International Law
Domestic vs. International Law • Treaties • Domestic law • International courts and tribunals • Application of Canadian law in Canada to nonCanadians • Application of Canadian law outside Canada
Application of Canadian law outside Canada 6. (2) Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada. Criminal Code of Canada, R.S., 1985, c. C-46, s. 6. Anyone with internet access? Look up ss. 7(1)(b) and 7(2.31).
Form vs. Substance Procedure vs. Substantive Law
Substantive Law • Establishes legal relations • Provides for substantive rights • Provides for consequences of violations • Substantive law applied as at time of events
Procedural Law • Deals with the legal process used to enforce substantive rights • Different areas of substantive law have different procedural rules • Provides for process, parties, limitations, appeals and review, evidence, questioning • Procedural law applied as at time of trial
Evidence • A branch of procedural law • Differs in different areas of law • Best Evidence rule • “Hearsay” • General rule: To be admitted, evidence must be relevant and reliable • “Examination in chief” vs. “Cross−examination”
Distinguishing Proc. and Subst. rights • Substantive law applied as at time of events • Procedural law applied as at time of trial • Courts required to categorize rights • Justification for this difference?
For next class… Legal Reasoning • Pages 114−131 • In class, we will discuss the cases on pp. 132−146 (Carbolic Smokeball and Donoghue v. Stevenson)
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