CHAPTER 1. THE LAW AND THE LEGAL SYSTEM

PART 1

The Legal Environment for Business Chapters 1 – 3

Willes, Contemporary Canadian Business Law, 12e © 2020 Copyright by McGraw-Hill Limited Instructor’s Manual 1-5

CHAPTER 1. THE LAW AND THE LEGAL SYSTEM

Chapter Topics Learning the Law The Legal Environment of Business The Nature of Law Rights versus Privileges The Role of Law The Early Development of Law The Rise of the Courts and the Common Law The Sources and Components of Modern Canadian Law The Constitutional Foundations of Canadian Law The Canadian Charter of Rights and Freedoms Classification of Laws Summary Key Terms Review Questions Mini-Case Problems Case Problems for Discussion

Chapter Objectives The rights and obligations of businesses and business persons stem from the law and our legal system. After study of this chapter, students should be able to:

• Describe the sources, role and development of Canadian law.• Distinguish between statute and Common Law, and describe the significance of stare decisis.• Recognize matters of federal versus provincial jurisdiction.• Describe the fundamental rights and freedoms set out in the Charter of Rights and Freedoms.

CHAPTER COMMENTARY

Chapter 1 is introductory in nature, and provides a general background concerning the nature of law, how laws developed, the general need for some rules to govern the behaviour of individuals, and the establishment of the various fundamental rights and duties of persons in society.

In class discussion, special emphasis should be placed upon both the sources of law and the classification of laws in order that students may have a clear idea of what they are and where they may be found. Many students fail to realize that the Common Law represents a large body of law, and the scope and application of this source of law should be emphasized in class discussion of the chapter. The text description of the development of the law and the rise of the courts is intended to be read as a historical introduction to give students an appreciation of where our laws came from, and how they were developed. In the context of the (Contemporary Canadian Business Law, Principles and Cases, 12e John Willes) (Solution Manual all Chapters) 1 / 4

PART 1

The Legal Environment for Business Chapters 1 – 3

Willes, Contemporary Canadian Business Law, 12e © 2020 Copyright by McGraw-Hill Limited Instructor’s Manual 1-6 courts and the law, the doctrine of stare decisis should be noted, and its purpose and application discussed with emphasis on the need for "predictability" in the application of the law to cases that come before the courts. It would be worthwhile to note as well that some judges of the Supreme Court of Canada have expressed the view that they, as judges of the highest court in the land, do not consider themselves bound by the doctrine, but would only change a common law rule where it had become inappropriate in a modern social setting.

Chapter 1 also provides a general outline of the nature of a constitution and its function in a democratic society. Reference is made to the "constitution" of the United Kingdom and the constitution of the United States as a basis for discussion of, and comparison with, the Canadian Constitution. The role of the courts as the chief interpreter of the constitution is also noted and should be emphasized in any class discussion of the enforcement of rights under the Charter. On this point, the doctrine of judicial review should be explained to illustrate how the rights of both governments and individuals set out in the constitution may be enforced. As an approach to teaching this part of the chapter, a systematic examination of the fundamental rights and freedoms may be made with the class requested to provide a fact situation related to a freedom or right, and then have the class speculate as to how the Charter might be interpreted by the court as it relates to the matter. With each fundamental right or freedom it is important to emphasize that the freedom or right must be viewed in the light of s.1 which makes the right "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," and not absolute. The "notwithstanding" clause (s. 33) which permits legislatures or parliament to override the Charter rights should be noted as well. On this point, reference may be made to the Court Decision in the Chapter (Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC)) which held Quebec's Bill 101 unconstitutional with respect to public signs. Students should note that the province of Quebec used s. 33 to override this decision of the Supreme Court of Canada and passed Bill 178 to require "French only" signs on all Quebec businesses. Students should also examine RJR-MacDonald Inc. and Imperial Tobacco Ltd. v. Canada, 1995 CanLII 64 (SCC) in the Chapter for an additional example of the views of the Supreme Court on the Government of Canada's attempts to virtually ban advertising on tobacco products.

The organization of the Charter itself provides an orderly approach to discussion of the nature of the rights and freedoms granted under it, as well as the method of enforcement. With respect to the latter, it is readily apparent that most of the rights and freedoms are those which the framers of the constitution felt should be enshrined to protect them from encroachment or interference by governments. If government should do so, the individual has the right to bring the alleged infringement before the courts to have the interference ruled upon as to its validity.

A final point to note and to emphasize in class is that the constitution includes more than the Charter of Rights and Freedoms. It also includes the original British North America Act of 1867 (as amended over the years) which establishes the structure of our government, and the legislative powers and jurisdiction of the provincial governments and Parliament. Consequently, it is a lengthy and complex document which sets out not only the rights and freedoms of the individual, but how Canada as a democratic society governs itself. On this point it should be emphasized that legislative bodies may not exceed the powers granted to them under the constitution, as the exercise of jurisdiction when none exists renders such an act ultra vires and a nullity.

Aboriginal and indigenous law concepts are introduced, and statute law is defined in the text, and the process associated with this type of law-making is described very briefly. Students should be informed that this process is legislative as distinct from judicial. The recording and organization of these statutes in the form of revised statutes of a province (or federal government) should also be discussed in order that students are made aware of where these laws may be found. Discussion may then lead into the topic of civil codes, and students may be asked to discuss the pros and cons of a Civil Code system vs. the Common Law/Equity system 2 / 4

PART 1

The Legal Environment for Business Chapters 1 – 3

Willes, Contemporary Canadian Business Law, 12e © 2020 Copyright by McGraw-Hill Limited Instructor’s Manual 1-7

From the point of view of learning about the law, the chapter contains a description of the various sources of the law, and the methods of classification. The importance of this part of the chapter should be underscored, as it provides the basis for an understanding of the particular rules and principles covered in the remainder of the text. It also represents an important first step in the examination of the law, in that it sets out the system for classification.

It is essential that the difference between substantive law and procedural law be understood. As well, students should learn the various sub-classes of substantive law. In this regard, the nature of public law as a type of substantive law should be clearly understood. Public laws are laws which relate to the relationship between the individual and the government (or its agencies), and as such, are usually laws which are enforced by the Crown. They are generally prohibitive or regulatory in nature (e.g.: the criminal law, or provincial liquor control laws), and are enforced by the Crown if they are violated by an individual. They are quite different from private laws which normally establish the rights and duties of individuals in their dealings with each other, and which must be enforced by the party whose rights have been violated.

The chapter outlines the sources of law, and provides a general explanation of the common law (including equity) as a source. The nature of this body of law should also be carefully examined, as the law described in a large part of the text is of this type. In particular, the Law of Tort in Chapters 4 - 6, the Law of Contract in Chapters 7 - 14, the Law of Agency in Chapter 15, the Law of Bailment in Chapter 20, and a number of other areas of the law are essentially part of the "Common Law".

Chapter 1 also introduces the first of many legal terms and definitions which must not only be memorized, but understood. The various definitions of the term "law" along with definitions of "rights" and "privileges", "Common Law", "equity", the doctrine of stare decisis, "statute", and "civil code" are explained, and the material concerning these terms should be carefully reviewed, as the terms are frequently used throughout the balance of the text. The various terms used to describe the different classifications of the law should also be noted.

The Review Questions at the end of the chapter should provide a sufficient test of student knowledge of the essential material and are reproduced with comments.

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PART 1

The Legal Environment for Business Chapters 1 – 3

Willes, Contemporary Canadian Business Law, 12e © 2020 Copyright by McGraw-Hill Limited Instructor’s Manual 1-8 Review Questions

• What impact does the Canadian Charter of Rights and Freedoms have on rights and freedoms not

mentioned specifically in the Charter? Could these "other rights and freedoms" be curtailed or extinguished by governments?

Answer: The Charter recognizes the existence of other rights and permits them to continue except where they conflict with Charter rights and freedoms. Rights outside the Charter do not have Charter protection, and may be abolished or encroached upon by governments.

• What is the difference between a "right" and a "privilege"?

Answer: A right is an act that may be done with impunity and with the support and recognition of the state. The state recognizes a right as something which neither it nor others may deny. A privilege is something which the state allows or permits under specific circumstances at the pleasure of the state.

• Why are "rights" and "duties" often considered together when one thinks of laws?

Answer: Because "rights" often permit a person to do something that interferes with others, laws generally include obligations or duties on the person possessing a right to exercise the right in a particular way to minimize interference with others. Laws may also include duties on those affected by the exercise of a right to permit the right to be exercised.

• Could a society exist without laws? If not, why not?

Answer: A complex society certainly could not exist without laws, as some means of regulating the activities of people would be necessary to maintain order. Even in a primitive society, rules regulating fairness in vengeance matters were necessary.

• "Advanced civilizations are generally characterized by having a great many laws or statutes to control the

activities of the citizenry." Comment on the validity of this statement.

Answer: This is a valid observation. Advanced civilizations are characterized by persons engaged in activities which involve a great deal of social contact and interaction. Historically, they have also involved many people living in close proximity to each other (in cities). Each type of social interaction usually requires some legislative control, hence, the more interaction, the more laws that are required.

• On what basis are Charter fundamental rights and freedoms open to restriction by Parliament or the

provincial legislatures?

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