My Blog - Canada's Legal System

 

     Paul’s Paralegal

Blog
80 Palmer Rd.
Hamilton, Ontario L8T 3E9
Tel: (905) 581-3602
Fax: (226) 216-0126
E-mail: paul@paulsparalegal.ca 
Web: www.paulsparalegal.ca

 

This Blog has been created to help people understand the complexity of law, 
and of the structure of Canada’s legal system. 
Most importantly, how paralegals work within Canada’s legal system.

 

This first Blog post, was created as an introduction to Canada’s legal system,
our laws, and how they work to help us resolve:

• disputes between individuals,
• disputes between individuals and business, and
• disputes between individuals/business and government.

 

Canada’s Court System
First, an explanation of the different courts, administrative boards/tribunals/commissions, and where they sit within the power structure of Canada’s legal system. 

Canada's Court System

(click the image to download a pdf copy of the courts system map)

Different Forms of Law
There are three forms of law within Canada.
There is Constitutional Law, Statutory/Written Law, and Common Law.

 

Constitutional Law
The constitution of a country is a written law. It can also sometimes be unwritten.
The uniqueness of this law is that it is a law that sits above all other laws in a country.

There has been some debate as to what makes a Constitution supreme over all other laws in a country. In most cases, constitutional law is created and passed into law by the same lawmakers who make regular laws. It can also be unwritten law created by the courts through something known as precedence.  

What many argue in support of a constitution’s uniqueness is that the constitution’s power is in its amending formula, or how it can be changed.

In many cases, including Canada, a country’s constitution cannot be easily changed.
This is because it often requires, in the case of Canada, agreement by Parliament and agreement by the Provinces and Territories.

Additionally, others argue that what makes a Constitution unique
is its supremacy over other laws.
For example, in Canada s. 52 of the Constitution is its supremacy or "primacy clause". However, some argue it is not the supremacy clause at all that makes a Constitution unique. This is because similar primacy clauses can be found in other legislation. For example there is the primacy clause stated at
  s. 47(2) of the Human Rights Code in Ontario.  

Some believe that a true constitution, in a real democracy, is one that is approved by a majority of a country’s citizens. This is because they believe that once a politician is elected by the people, the people are allowed to give little or no input in how they are governed, aside from the commonly known practices of lobbying and/or protests.     

Empowering people through the approval of a constitution makes clear to politicians what they can and can not do by the people. 

Canada’s Constitution consists of:
Canada’s Constitution, as state din s. 52, is composed of several documents
and are discussed below.

The Constitution Act of 1867
This was a law that was passed by British Parliament on March 29, 1867.
This law allowed the provinces and territories to form to become
the country of Canada under the British Empire.

The interesting thing about Canada’s Constitution over any other country in the world, is the stated powers between the provinces and the federal government. This was something the original creators of Canada’s constitution tried to learn from our American cousins, who had just finished a bloody civil war.
It was believed that providing equal powers to provinces/territories and
the federal government would prevent such wars.  

Section 91 states what Canada’s Parliament can and what it cannot do.

Section 92 states what Canada’s Provincial/Territorial Legislatures can and cannot do.

Judges
Another important section of this Constitution is section 96 or Part VII.
This provides constitutional powers to Canada’s federally appointed judges.
Canada’s federally appointed judges sit in Canada’s
Superior, Supreme, and Courts of Queens Bench across Canada.
Also on the Provincial/Territorial Courts of Appeal and of Course the 
Supreme Court of Canada
The significance of judges being federally appointed and paid by the federal government, is to attempt to ensure a person is treated by a fair and impartial decision maker
- the Judge.
This is one part of the well known legal principle of the
Rule of Law
being independent adjudication (decision maker).
The only way a judge can be removed from office is by an act of Parliament.

Click here to see an electronic copy of
the Constitution Act of 1867

 

The Constitution Act 1982
This was an amendment to the law passed by British Parliament, which simply states that the British Parliament cannot pass any laws to affect Canada.
In effect, it gave Canada its independence from the British Government.

 It is important to also note the supremacy of Canada’s Constitution over all other laws in Canada. Section 52 of Canada’s Constitution (1982) states that any law that conflicts with any part of Canada’s Constitution is of no force and/or effect.

It is often used to invalid laws which have been found to be in contravention of the Charter of Rights and Freedoms, which is the next part of Canada’s Constitution.

Canada was the last countries of the British Empire to adopt its own Constitution after WWII this was because the Parliament and the Legislatures could never agree on it.  

 Click here to see an electronic copy of
the Constitution Act of 1982

 

Charter of Rights and Freedoms

Canada again was the first country to enact a charter of rights within its constitution, which is part of the Constitution of 1982.

The Charter of Rights and Freedoms is an extremely important part of Canada’s Constitution as it protects individuals against unlawful government action against them. To be clear the Charter of Rights and Freedoms only applies to laws and actions of government agencies and/or government officers. It does not include actions by individuals or business. In those situations, individuals who have been wronged may look to the provincial and/or federal human rights legislation.

 Click here to see an electronic copy of
the Charter of Rights and Freedoms,
which is PART I of the Constitution Act of 1982

The Supreme Court of Canada confirmed that Administrative Boards, Commissions, and Tribunals can hear Charter arguments on laws and/or government actions, which infringe an individual's Charter of Rights and Freedoms. While they cannot invalidate a section of law, they can disregard the section of law in a particular case.
Additionally, while it has not been confirmed as of yet, they can also award Charter damages under s. 24.1 of the Charter. 

 To have a law and/or section of law invalidated,
 a Constitutional question must be brought
before a Superior Court in Canada.   

Statutory/Written Law
Written law is law that is created by
Canada’s Parliament, Provincial/Territorial Legislatures, and local governments.
There are several different types of written law.

Criminal Law
 Criminal law in Canada is federal, which means what is in violation of the criminal code in British Columbia is in violation in Ontario.
In Ontario licensed Paralegals can represent individuals who have been charged under the criminal code. However, there is a restriction that Paralegals can only represent individuals for matters charged with a summary conviction offence, which has a maximum incarceration (jail time) of six months. 

Click here to see a digital copy of
Canada’s Criminal Code

 Family Law
There are several laws that deal with family law matters.
There is the law that deals with those that have been legally married, those with children and those in common-law relationships.

  Common Law
Common law is law that is made by judges through precedence.
The job of judges is to interpret law and determine the facts of a case. In interpreting the law often precedence is set especially from higher courts.

The Supreme Court of Canada has confirmed that the Charter also applies to decisions of Boards/Tribunals/Commissions and the Courts.

  The hierarchy of precedence is:

Supreme Court of Canada
The decisions of the Supreme Court of Canada are binding on all courts, boards, and tribunals in Canada. Precedence/binding means that the decisions of the Supreme Court of Canada are binding on all lower courts, boards, and tribunals in Canada and they must follow the direction of the Supreme Court of Canada.

Supreme Courts of other countries
While Supreme Courts of other countries are not precedence (binding) in Canada courts, their decisions can be used to advise the courts if the courts have not dealt with a specific matter previously.

 

Federal Court of Appeal
As previously mentioned above, decisions of the Supreme Court are binding on all provincial/territorial appellate courts, including the Federal Court of Appeal.
The decisions of the Federal Court of Appeal are binding on all decisions of the Federal Court, Federal Tax Court, and Federal administrative boards & tribunals.

Federal Court of Canada 
As previously mentioned above, decisions of the Supreme Court of Canada are binding on all courts. Also, decisions of the Federal Court of Appeal are also binding on
the Federal Court.
Decisions of Provincial/territorial appellate courts and superior courts are not binding on the Federal Court however they can be used to advise the court in cases that the Federal Court has not dealt with.

Decisions of the Federal Court are binding on
Federal administrative boards and tribunals.

 

Provincial/Territorial Appellate Courts  
As previously mentioned above, decisions of the Supreme Court are binding on all provincial/territorial appellate courts. Whereas decisions of other country’s Supreme Courts can be used to advise the provincial/territorial appellate courts.
This is also the case with the Federal Court of Appeal, where decisions of the Federal Court of Appeal are not binding on Provincial Territorial Appellate Courts. However, they can be used to advise the Provincial Territorial Appellate Courts.

 Decisions of the provincial/territorial appellate courts are binding on lower courts within its province/territory.

So, for example a decision of the Court of Appeal for Ontario is binding on all lower courts, administrative boards, and tribunals within Ontario.
 However, the decision of the Court of Appeal for Ontario is not binding on other Provincial/Territorial Courts of Appeal and/or lower courts & boards, but the decisions can be used to advise the courts
in other provinces/territories and vice versa.

Superior Courts
In Ontario there are three Superior Courts.
The Divisional Court, The Superior Court of Justice, and Small Claims Court.   
The Divisional Court is the appellate court which hears appeals from decisions of the Superior court, small claims court and administrative boards and tribunals. The Divisional Court also hears applications for Judicial Review.

As previously mentioned above, decisions of the Supreme Court are binding on all provincial/territorial courts, including the Divisional Court. Whereas decisions of other country’s Supreme Courts can be used to advise the provincial/territorial courts, including the Divisional Court.
This is also the case with the Federal Court of Appeal, where decisions of the Federal Court of Appeal are not binding on Provincial Territorial Appellate Courts. However, they can be used to advise the Provincial Territorial Appellate Courts.

Lower Courts
In Ontario there is, Ontario Court of Justice, which is composed of three courts. the Criminal Court, Family Court and Provincial Offences

Administrative Boards, Commissions and Tribunals
There are many administrative boards, commissions, and tribunals
both at the Federal level and the provincial level.
Decisions of all of the courts are
binding on all administrative boards, commissions, and tribunals. 

 Administrative Law
 Administrative law are laws that are made by either provincial or federal government to manage matters of the government.
Administrative law is what gives the administrative boards, commissions, and tribunals their authority to preside over a matter. 

Thank you for taking the time to read my blog!

I hope you found this blog to be informative. 

I will be doing more with a focus on areas of law that Paralegals practice in. 

  

My Next Blog Topic - IMEs

My nest blog I intend to do will be to discuss the issue of Independent Medical Examiners - IMEs these are doctors who are paid by insurance companies and workers compensation boards to provide an assessment of your medical condition. 
Some times the IMEs recommendations are contrary to your abilities and most importantly to your doctor's recommendations. In these cases most are unsure how to deal with such a conflict of medical recommendations. 
In the next Blog it will explain your options for adverting problems with IMEs
and how to deal with the problems when they do occur.