Law for Professional Engineers by D.L.

Marston

Chapter One: The Canadian Legal System

The Theory of Precedent
The courts apply legal principles established in previous court decisions that involved similar or analogous
fact situations. Once decisions are made in previous courts, the principles established are used again and
again.

Historical Basis

There are two main sources of law:

Common Law – judge made law
Legislation – statutes made by legislatures, parliament

Common Law
Certain specific remedies were available in only certain circumstances. This system of specific remedies
was called the “common law.”

Common Law - a major source of law is “judge-made law” – court decisions establishing legal principles.

Legislation
A statute is a codification of the law as the legislature determines at the time of enactment; it may be
codification of existing common law or the enactment of new law.

Federal and Provincial Powers

Under the Canadian Constitution, the British North America Act, 1867 (renamed the Constitution Act,
1867 by the Constitution Act, 1982), the federal government and the provinces have authority to enact
legislation.

If a provincial or federal statute would be challenged on the grounds that they dealt with a matter beyond
the opposite’s (provincial or federal) authority, or “ultra vires,” that statute would be effectively rendered
void.

The Constitution Act, 1982, contains Canadian Charter of Rights and Freedoms. Everyone has the
following fundamental freedoms:
 freedom of conscience and religion;
 freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;
 freedom of association.

The Federal and Provincial Court Systems

England and the US provide common law precedents; Canadian courts have more often preferred to follow
English case precedents than US common law.

Public and Private Law

Public Law – deals with the rights and obligations of government, on the one hand, and individuals and
private organizations, on the other. ie. criminal law and constitutional law.
Private Law – deals with rights and obligations of individuals or private organizations. Ie. contracts and
torts.

Basic Terminology
Plaintiff – the party bringing the action or making the claim in the lawsuit. In criminal matters, this is
usually the Crown.
Defendant – the party defending the action.