Written elements include the Constitution Act of 1867 and the Canadian Charter of Rights and Freedoms
Constitutional conventions – important rules that are not enforceable by a court of law but that practically determine or constrain how a given power is exercised
Constitution provides for the three branches of government: legislative, executive, and judicial.
Legislative branch – passes laws that impact on business operations
Executive branch – generates and implements government policies that may be directed at business
Judicial branch – provides rulings that resolve existing legal problems but also impact on future disputes; independent from the legislative and executive branches of government
2. The concept of division of powers in areas of law between Federal and Provincial governments (Chapter 2)
Interprovincial/ international trade & commerce
Trade as a whole
Navigation & shipping
Property and civil rights
Administration of justice
Local matters (e.g. highways)
Incorporation of provincial companies
3. The Court system in Ontario (Chapter 4)
Trial courts are of two types: inferior and superior. Inferior courts are presided over by judges appointed by the provincial government. These courts are organized by type of case, such as criminal, family, and civil. The civil court—sometimes called small claims court—handles disputes involving smaller amounts of money. The amount varies from province to province: $25,000 is the limit in British Columbia, Nova Scotia, and Ontario while $20,000 is the limit in Saskatchewan. The process is designed to be simpler, quicker, and less expensive than mainstream litigation. Parties often appear in this court without a lawyer. Superior court—whose judges are appointed by the federal government—have the jurisdiction to handle claims involving an unlimited monetary amount. In addition, they are the entry level for the more serious criminal matters. Here, the procedure is much more formal and technical, with parties usually being represented by lawyers.
Provincial courts of appeal hear appeals from these lower courts, and from there cases go to the Supreme Court of Canada. In most commercial cases, litigation tends to end in provincial courts of appeal because appeal to the Supreme Court of Canada is available only after permission or “leave” to appeal is granted by the Supreme Court itself. Ordinarily, the Supreme Court of Canada will hear only appeals that involve questions of national concern or significance.
The Federal Court of Canada has special authority to deal with certain cases in which one of the parties is the federal government or one of its agencies.
Inferior courts: A court with limited financial jurisdiction whose judges are appointed by the provincial government.
Small claims court: A court that deals with claims up to a specified amount.
Superior court: A court with unlimited financial jurisdiction whose judges are appointed by the federal government.
Supreme Court of Canada: The final court for appeals in the country.
Federal Court of Canada: The court that deals with some types of litigation involving the federal government.
4. Dispute resolution mechanisms: negotiation, mediation and arbitration (Chapter 4)
Negotiation: A process of deliberation and discussion intended to reach a mutually acceptable resolution to a dispute.
Success depends on:
Willingness to compromise
Nature and significance of dispute
Priority parties give to dispute resolution
Effectiveness of those involved in negotiations
Mediation: A person who helps the parties to a dispute reach a compromise
Arbitration: A person who listens to both sides of a dispute and makes a ruling that is usually binding on the parties
ADR is usually successful when:
Parties interested in considering each other’s position with compromise as goal
Parties wish to…