September 12th, 2016

Rule of Law: everybody is equal and no one is above the law

o refers to a principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with international human
rights norms and standards.
The law cannot touch your thoughts but once the thoughts have been acted upon/spoken of the law can
react
Freedom of expression: right to express yourself
A diplomat is subject to the laws of their own country not of the country that theyre visiting
Substantive Law: the law of contracts that is the heart of the legal system. It is then further broken down
into public law (our relationship with the government), private law (our relationship with each other.
o Examples of public law: tax law, immigration law, criminal law.
o Examples of private law: family law, contract law, tort taw (accidental that has caused injury)
A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to
suffer loss or harm resulting in legal liability for the person who commits the tortious act,
called a tortfeasor.
Procedural Law: the process to bringing a case forward in a proper legal manner
Liability: determines who is responsible
o Ex. Employer is responsible for their employees safety
o Criminal liability: the state/crown must prove that the person is criminally responsible
Must prove that you are guilty beyond reasonable doubt (approaching absolute certainty)
so that innocent dont go to jail
Between 5-10% of cases go to trail because of the imbalance of resources
o Civil liability: anything that is not criminal in nature
Person who wants to press charges must prove liability on a balance of probabilities
not as high as guilty beyond reasonable doubt
o Regulatory liability: not criminal but the crown t is regulating behavior
Ex. highway traffic act speeding ticket
Certain sanctions could be criminal in nature
Typically, the state has to prove your guilt beyond a reasonable doubt standard
o Strict liability: state only has to prove that the crime occurred and the individual has to prove that
it wasnt them must prove that you were diligent in avoiding that circumstance
Origins of Canadian Law (Influences of the Canadian Law)
1. English Common Law
a. Combination of judges rulings over time that create the body of law; allows judges to
create a precedent as it becomes a referral for future cases
i. Magna Carta: first document for laws
ii. Stare decisis: the legal principle of determining points in litigation according
to precedent; precedent; you have to look at past rulings to base your current
decision; provides uniformity
iii. If they can distinguish their case from past cases, they can give reason to not
follow precedent; can stray away from precedent if given reason
iv. Every time a judge interprets government laws, this adds to the common law
v. English Common Law Courts of Equity (fairness) Courts of Common
Law Merged in 1865 ; Ontatio Superior Court of Justice is both courts
merged together?
2. French Civil Law/Code

a. Manifested from Quebec Civil Code which allows Quebec to deal with non-criminal
matters separately than the rest of Canada
i. Generally, abide by the code rather than other judges decisions in Quebec; a
judge doesnt have to worry about setting precedent; makes the law less
flexible and is unlikely to change over time; certain variables may not be
accounted for as it hasnt been revised?
3. Aboriginal Law
Who makes law?
Government: creates legislation, Act, Code, Bill, Statute, Regulations, By-Law
o Constitution Act of 1867, previously known as the British North-American Act is the act that
created Canada
Reflects the morals and values we wish to have as a nation
Is entrenched, no government can easily change it or get rid of it because they dont like
the way it operates; good because they cannot change it just because it doesnt suit their
agenda
o Federal Nation: divides power between the Federal government (section 91) and Provincial
Government (section 92 and 93); this creates a division of powers
Provincial: property and civil rights, highway, healthcare, education, stocks and bonds
Federal: immigration, military, banking, international trade, foreign affairs
o Residual powers: federal government receives any area that is not listed in s.92 and s.93
o Concurrent powers: Federal and Provincial governments collide within an area; the Federal
government takes power because it is looking out for the whole public rather than just their
jurisdiction. Federal government paramounts the provincial government
Ultra Vires: beyond the powers of a legal authority; whether an act is either within or
beyond the power of a legal provincial or federal authority in a Canadian context depends
on the country's constitutional law
Intra Vires: within the powers of a legal authority
Courts
o When there is a conflict regarding the division of powers, they go to court
Administrative Tribunals/Boards/Bodies (ex. CRTC, Workplace Health and Safety Board)
o Create laws through the decisions that they make

Notes:
Remedy is often equal to damages which is often equal to money

September 19th, 2016

Canadian Charter of Rights and Freedoms: protects us from actions of the government but does not protect you
from individual action
Supreme Law of the Land; all other laws created by the government must abide by the constitution
S1 Reasonable Limits
o Government can limit your rights if they can justify their reasoning
Ex. Irwin Toy vs. Quebec: QC passed a law limiting advertising to children as they felt
they needed to protect children. Advertising during a certain time during the day when
they expected children to be watching TV was limited. Irwin Toy challenged that law
with the notion that it violated freedom of expression. Supreme Court had to figure out if

the constitution applied to corporations. With law, a corporation is considered an

individual. Court ruled that it was violating freedom of expression as it limited it.
Government applied a test: 1) government must be trying to pass a law that has a
good purpose/goal. 2) minimize the impact; theyve tried to impact that right as
little as possible. 3) has the government found the correct balance/proportionality
Prima facie: on its face
S2 Fundamental Freedoms
o Expression/Speech
o Religion
o Peaceful assembly/protest
o Association
S3 Democratic Rights: right to vote
S6 Mobility Rights
o Enter and leave Canada
o Move between provinces whether its to travel or live
S7-14 Legal Rights
S7 Life, Liberty and Security of the person:
o Innocent until proven guilty
o Right to remain silent
o Prosecution must provide you with the evidence they are going to use against you
o Health care
S8 Search and Seizure
o No authority to come in without a warrant unless you let the police in
o Right to privacy from government action
o Ex. missing assault rifle from Kitchener/Waterloo
S9 Unlawful detention
o You have a right to challenge the detention, prosecutor has to show cause as to why you cant
face your charges outside of jail rather than in jail
o You have to be seen, usually by a justice of peace, within 24 hours
S10 Right to counsel
o Right to speak to a lawyer and the police cannot question you until youve spoken to your lawyer
S11 Trial within a reasonable time
o Stay your charges: suspend your charges indefinitely; no finding of guilty or not guilty
o Most cases should be dealt within 9months of you being charged; law was then updated so it was
on a case by case basis looking at who was at fault for the delay
o Most offenses should be dealt within 18 months
o If the government is at fault for the delay, you can ask for a stay on your charges
S12 Cruel and unusual punishment
o No death penalty, torture
o Rough prison treatment, i.e. too many people in a cell while waiting for a trial
S13 Right against self-incrimination
o You dont have to stand on trial against yourself
S14 Right to an interpreter
S15 Equality Rights
o Sexual orientation isnt listed on the constitution but you still cant be discriminated against for it
S16 Language Rights
o Federal government is required to offer services in both French and English
o Provincial services are not required too, however Ontario has opted to do so

S33 Notwithstanding Clause

o Government can pass any law to take away certain rights from the following sections
notwithstanding your other rights
S2 Fundamental Freedoms
S7-14 Legal rights
S15 Equality rights
o Clause was made to get QC to sign the Charter
o No government has ever used it to suspend any of these rights
September 26, 2016

Courts make law, SCC = 9 (Supreme Court of Canada, 9 Justices)

o Three of the judges must come from QC for linguistics and because they were a founding
province; Three judges must come from ON because of the size of the province as well as the
fact that it was a founding province
o Federal Court of Appeal (highest federal court); can also hear cases that are administrational
issues falling under the federal section
Federal Court of Trial Division, Tax Court (federal income tax issues)
o Ontario Court of Appeal > Ontario Superior Court of Justice (both a trial court and an appeal
court; able to hear almost any kind of case; every province has their own superior court;
divorces, property rights of married spouses) > Ontario Court of Justice (can only hear family
law and criminal law cases, there are restrictions) > Provincial Courts
Litigation Process (designed to produce a winner and a loser)
o Rules of Civil Procedure
o Sue, lawsuit, court action, court case, litigation/adversarial model
o Parties, litigants
Plaintiff () , Defendant ()
Judgements, Orders, Decisions, Reasons
Clarity Act: Set up after QC referendum, if a province wants to leave they have to abide by the clarity
act; approved by the SCC
Before the SCC will look at a case, it must have a societal impact, it must have national significance
o They must give you leave (permission) before they view your case
Leave to appeal granted forward or Leave to appeal denied
o If leave is denied, the last decision will be the standing decision
Litigation Process Phases/Stages to litigation
o 1) Pleadings Phase: court documents that the parties must file
Plaintiff must file a Statement of Claim looking for
i) Remedy (damages)/relief
ii) Costs
iii) Prejudgement interest
Issue Statement of Claim to Superior Court of Justice which makes it formal
Personal Service to serve the suit to the defendant; the defendant does not have to
sign for the document; the server must complete an Affidavit of Service swearing
that it has been delivered
Defendant will provide a Statement of Defense and serve the plaintiff (does not have to
be served personally), followed by them filing the statement with the court

Defendant can also file a counter claim where he/she becomes the plaintiff in that
case; other things that can be filed are a crossclaim or a third party claim
Jury only exists with the Superior Court of Justice which should be filed by the plaintiff
during the statement of claim known as a Jury Notice

*left class early

October 3, 2016
Litigation Process: Phases/Stages in Litigation Process
1. Pleadings Phase
2. Discovery Phase
3. Pre-Trial Phase
4. Trial Phase
Judge alone trial OR judge and jury trial decided by serving or not serving a jury notice
o In a civil case theres 6 jurors
o In a criminal case theres 12 jurors
o Jurors are responsible for the facts (trier of fact)
o Judge has the responsibility of applying the law
Plaintiff goes first because theyre the ones who started the lawsuit in the first place
In a civil case, the plaintiff must prove on a balance of probabilities that the defendant is liable and
then they must prove the amount of the remedy
There will be a different judge for the trial than there was for the pre-trial
If trial by judge and jury
o Opening statements: what the plaintiff hopes to achieve/prove in the trial
Types/categories of questioning in order
o Examination-in-chief: being asked questions by the lawyer on your side; the lawyer must ask
mainly open ended questions without leading the witness
o Cross-examination: when your being asked questions from the opposing lawyer
How solid and truthful is the evidence that the plaintiff provided in the prior
examination
You can ask closed ended questions as long as its relevant and test the plaintiffs
credibility
o Re-examination: once again, being asked questions by the lawyer on your side
Cannot re-ask questions from examination-in-chief, you can seek clarifications from
questions asked in cross-examination
Provide testimony
o Live evidence: viva voce
Any time you enter in physical evidence, it is referred to as an exhibit
Judge can seek clarification but cannot ask questions he/she thinks the lawyers should have asked; if
this happens it is grounds for an appeal
Once the questioning has ended for the plaintiff, their cases rests and the same format occurs for the
defendant
Closing statement: for the plaintiff, we have established that the defendant is guilty based on the
facts provided and the law and the lawyer will lay out the facts and then explain how it breaks the
law; they will then explain that the plaintiff deserves that sum of money

The plaintiff must prove with the FACTS that the defendant is liable
Closing statement for the defendant, on the balance of probabilities, the plaintiff has not proved that
the defendant is liable based on the facts heres why, and this is also why they arent entitled to the
damages because of .
After closing statements, the judge will give instructions/charge the jury
o What the law is with respect to the case that they are dealing with
o Any legislation that would apply
o Summarize the evidence
o The issues that must be answered are these
o If no, plaintiff loses, if yes, assess the damages
In a trial by judge alone, rather than a closing statement, you are providing your final
submissions/arguments and then the judge will reveal their decision either on the spot, if its a short
trial, or go on reserve to go over documentation before revealing a verdict
When the judge reveals their verdict, they must explain their verdict based off of
o Liability
o Remedy/damages
o Costs
The winner is entitled to costs whether youre the plaintiff or the defendant
The judge can decide how much of the costs will be rewarded
Contingency lawyer fees: only paid if they win the case
Offers to settle
Two types of costs:
o Party-and-party costs
Partial indemnity (up to 50% of costs to be payed back)
o Solicitor-and-client costs
Substantial indemnity costs (your entitled to all of your money back)
5. Appeal Phase
The trial judge actually hears the evidence and asses the evidence live whereas the appeal court
reviews the transcript and has access to the exhibits
Can appeal based on:
o Error in law
o Error in fact
o Error in fact and law
The appellant is the person appealing, appellant vs. respondent
Options appeal court has:
o Overturn and remit back to trial with new judge and jury
Ex. Sutton case; employee was at a Christmas party drinking and wanted to leave the
party and drive. She went to a bar and had a couple more drinks there and drove
home getting into a single vehicle accident seriously injuring herself. She sued both
the company and the bar as they both continued to serve her alcohol despite her
being drunk. Judge struck the jury deeming it was too complicated of a case. Judge
agreed with the plaintiff. Defendant appealed based on the error in law in striking the
jury. The appeals court then overturned the decision and sent it back to trial. Trial
never happened, both sides settled.
o Overturn in part

Ex. Appeals court agrees with the verdict but doesnt agree with the damages
o Overturn entirely
Alternative Dispute Resolution (ADR)

Negotiation: simplest and best way to resolve disputes

Mediation: a mutual third party (mediator) helps facilitate a discussion to help come to a resolution but
they cannot make a decision. The party picks and pays for the mediator. In family law, the court can
appoint a mediator. Mediators dont have to be lawyers but generally are they just have to have
experience in the field being discussed. If the mediation fails, neither party can request the mediator to
testify at trial because they may hear information that they dont want on public record. The mediator
will say that they are without prejudice to the rights of the parties. Nothing thats said in mediation can
be held against you because your there to find a resolution and if you knew information could be used
against you later you wouldnt say anything in mediation. If the mediation succeeds, the parties will
enter into a contract called minutes of settlement.
Arbitration: the neutral third party, picked by the parties, known as the arbitrator is very similar to the
mediation but at the end the arbitrator makes a decision. The parties determine the degree of formality
including whether they want the decision to be final and binding. They also have the option to make it
binding but not final so the parties can appeal to a judge if need be.
o Arbitrations Act: how to structure an arbitration

Tort Law
Wrongs that were committed against someone else, they can be intentional or unintentional
Branch of civil law
Goal is to compensate the victim of the wrong
The person who committed the court can be referred to as the defendant, tort feasor, wrongdoer
Strict Liability Approach: prima facie case
o All the plaintiff has to do is prove that the act actually occurred, the onus reverses to the
defendant to prove diligence
o Still applies in the following situations: employee-employer, parent-child, Reynolds vs Fletcher,
Dog Owners Liability Act
Fault Based Approach
o Reynolds vs. Clarke: The plaintiff must prove liability vs the defendant on a balance of
probability
No Fault Approach: exists with workers compensation (as long as an injury happens at work, there is
no fault even though either party may have been in the wrong) and automobile insurance
October 17, 2016
Exam: chapters 1, 2, 3, 4, 10, 11, 12
7-830. Multiple choice and T/F
40 100 questions
Tort Law: Three approaches to tort law
Strict Liability
Fault
o Plaintiff has the burden of proof to prove that the defendant is liable on a balance of probabilities
o Most of tort law falls under this category
No Fault (ex. Workers Compensation, Automobile Insurance)
Three Categories of Torts:
Intentional (TortCriminal)
o Batteryassault (intentional physical contact that does not have the other parties
consent/authority)

Assaultuttering threats
False imprisonmentforcible confinement
Deceit/fraud/fraudulent misrepresentation
Trespass to land/real property: you went on someones land without implicit/licit authority
Provincial legislation: Trespass to Property Act you can send a notice to someone
without any reason that doesnt let them on their property
o Trespass to goods
o Defamation: purposely trying to ruin someones image publically
Libel written
Slander spoken
Defences to defamation: truth, fair comment (honest belief), qualified privilege (ex.
writing a poor review for an employee), absolute privilege (protected by the law so even
if what you say is untrue, the law protects you this is found in parliament and court
pleadings)
Unintentional:
o Negligence: Host liability, occupiers liability, product liability, negligent hiring, negligent
misrepresentation
Reasonable foreseeability: reasonable person/objective; how would a reasonable person
have acted in theses circumstances
Standard of care: is the defendant providing a reasonable standard of care?
Proximate case/causal connection or remoteness
Cause of 15year old that got injured and sued the car shop because they left keys
in their cars that were easily accessible. After stealing the car, he boy suffered
catastrophic injuries judge said that the shop was partially responsible appeal
to the courts based on the causal connection.
WagonMound I + II; welder failed to check their surroundings which caused oil
being leaked from a ship to catch on fire as well; is there enough of a connection
between the welders actions and the owner of the ship? There was too much of a
disconnection (too remote), therefore they failed to find anyone liable
o In the second case, they found that both the ship and the welder were
negligible based on a causal connection between the two events
Case of man who crashed his car three beers missing from a 24 pack. The man
tried to climb a tree to find his whereabouts and got tangled. Resulted in a loss of
his leg. Police were found negligent as they had the duty to search for the man but
didnt not conduct a thorough search.
Contributory negligence defense: you have contributed to your own injuries and therefore
you shouldnt get the full compensation that would have been awarded
Negligence Act:
Joint and several liability: if a plaintiff can show that two or more defendants are
individually responsible, the plaintiff can collect from either one or both
defendants and the defendants are responsible for the full amount
o Ex. car, motel, unprotected gas meter. Cars hit gas meter causing the motel
to burn down. If the city and the guy that ran the red light are found
negligent, and the damages to be awarded to the plaintiff are $1 million.
$500,000 for the guy of the red car and $500,000 for the city. The driver of
the red car has no money to his name. Therefore, the city has to pay the
plaintiff the full sum of money and then chase the guy in the red car for his
portion
o
o
o
o

Voluntary Assumption of Risk: means that the plaintiff has assumed the risk and
has to bare the responsibility because you took on the risk
o Crocker vs. Sundance
o The defendant must establish that the plaintiff voluntarily assumed the
physical risk of the activity; and the defendant must also prove they
assumed legal risk of facility
Donohue vs. Stevenson: friend purchased ginger beer and when she went to drink the
beer there was a decomposing snail at the bottom of the beer. She cannot sue as she didnt
buy the beer. Theres no privity of contract as she had no contractual relationship under
contract law. Under the law of torts, they have product liability as a product must be safe
for anyone who uses the product, not just the person who purchased the product.
Therefore, you are liable for the product you produce.
Thin Skull Plaintiff Rule: its a subjective test and you must take your victim as you find
him or her. If your stuck with a vulnerable plaintiff, you must compensate for their
injuries, even though someone else may have walked away unharmed.
Mustapha vs. Culligan
Ordinary person, ordinary fortitude; objective test. How would a person of
average health handle this situation? Opposite of the thin skull plaintiff rule
o Test for negligence: plaintiff must prove on a balance of probabilities that
Defendant owed the plaintiff a duty of care
Defendant breached the duty of care
Such breach has resulted in harm/loss/injury/damage
Hybrid: when the tort, depending on the circumstance could have been caused on purpose or not
o Nuisance: someone is interfering with the rightful enjoyment of your property; usually
intentional, can be unintentional
Private nuisance: between private property owners
Public nuisance: interfering with the rightful use of a public space
o Occupiers Liability Act: you, as an occupier of property, people that are coming onto that
property have the right to be reasonably safe while on that property; owe a duty of care even to
trespassers; usually unintentional but can be intentional
Remedies in Tort Law: damages, injunctionasking the court to ask another party to stop behaving a
certain way, restitutionrestore to me what is mine, declarationask the court to declare a certain
fact/finding/conclusion
o Damages in tort law:
General pecuniary damages: calculation of the damages that relate to future costs
General non-pecuniary damages
Pain and suffering and the loss of enjoyment of life; injury can be both physical
and psychological
The maximum in Canada you can receive is about $340,000
Special damages: deals with past losses such as past income loss and medical costs
Aggravated Damages: lightbulb example of man shopping at store, being accused of
stealing when in reality he was just comparing lightbulbs. He then became very upset as
he had suffered from the aggravated features from the case
Punitive/Exemplary Damages: courts use this to set an example to deter others in the
feature by awarding money to the plaintiff deterring the behavior of the defendant
Plaintiff has to prove that the defendant acted in a malicious, callus way
Ex. insurance company refused to pay their clients claim saying that they
intentionally set the fire in the house. However, there was clear evidence that the

fire was accidental. Plaintiff sued for all damage categories except for aggregated.
Won the case as the supreme court decided that the insurance company acted in a
malicious way by not agreeing to pay the claim and saying that their client caused
the fire
** Pay attention to the Mustapha vs. Culligan case