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Practical Law of Architecture,

Engineering, and Geoscience
Third Canadian Edition

Chapter 1
The Canadian Legal System

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-1

Canadian Constitution
 Statutes (British, Canadian); conventions
 Division of powers: private law generally
within provincial government jurisdiction;
exceptions include federal labour law,
competition law
 Charter
 Operational conflict: federal statute prevails

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-2

Canadian Constitution
 Law within provincial government
jurisdiction varies between provinces: lien
legislation, employment and labour legislation
 Territories: power assigned by federal
government, but act much like provinces

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-3

Canadian Court System
 Each province has a superior trial level court
and court of appeal: judges federally
appointed
 Separation of powers is a constitutional
principle requiring independence of the
judiciary
 Supreme Court of Canada: matters of national
importance (require leave)
Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-4
Canadian Court System

(Continued)
Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-5
Canadian Court System
 Each province has a lower trial court:
jurisdiction limited by subject matter (e.g.,
cannot deal with liens) and value of claim
(e.g., British Columbia Small Claims Court
has claim value limit of $25 000)
 Lower trial courts typically also handle
criminal and family matters

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-6

The Creation of Law
 Law is dynamic  uncertainty
 Statutes and regulations: federal and
provincial. Authority can be delegated 
subordinate legislation
 Common law: rules established by previous
decisions
 As judges interpret and apply statutes and
common law rules, more law is created
Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-7
Claims and Disputes
 Resolving disputes is time, money, and
energy intensive
 Construction disputes typically involve many
parties, and so are complicated
 Most disputes involve contract law and
negligence law, but procedural law is
important
 Allocation of risk influences outcome
Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-8
International Law
 International treaties; must be ratified
 NAFTA
 Regardless of treaties, professionals such as
engineers must be licensed in each
jurisdiction in which they work
 Tax treaties: minimize double taxation

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-9

Subject Areas and Principles
 Contract law
 Key area of law for construction disputes
 Contracts are voluntary, often need not be in
writing, define rights and responsibilities
 Tort law
 Duty to not harm those in the community,
intentionally or unintentionally
 Negligence is just one type of tort, but is common
in construction disputes
Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-10
Case Law
 Construction disputes are fact specific
 As the law changes, past cases become less
applicable
 Beware of relying on cases currently being
appealed
 All relevant cases must be considered

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-11

Case Citations
 Case citations indicate where printed or
electronic copies of the case can be found
 Citations for print reporters provide the name
of the reporter, volume, and page number
 Citations for electronic case databases
indicate the name of the database and provide
an electronic indexing number

Copyright © 2016 Brian M. Samuels and Doug R. Sanders 1-12