Discussion Questions - Introduction to Canadian Legal System (1)
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George Brown College Canada *
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1044
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Law
Date
Feb 20, 2024
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5
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1. What areas of jurisdiction does s. 92 of the Constitution Act 1867 assign and what level
of government is this jurisdiction assigned to?
Section 92 of the Constitution Act, 1867, assigns exclusive legislative powers to the provinces of
Canada in the following areas
1.Agriculture (including immigration and colonization):
Provinces have jurisdiction over agricultural practices, immigration, and colonization within
their borders.
2.Direct Taxation within the Province:
Provinces can impose direct taxes for provincial purposes.
3.Education:
Provinces are responsible for the establishment, maintenance, and management of public
schools.
4.Municipal Institutions:
Provinces have the authority to create and regulate municipal institutions.
5.Shop, Saloon, Tavern, Auctioneer, and License:
Provinces can regulate these activities within their jurisdictions.
6.Hospitals:
Provinces have the power to establish, maintain, and manage hospitals.
7.Asylums:
Provinces can legislate on matters related to asylums.
8.Charities and Eleemosynary Institutions:
Matters related to charities and charitable institutions fall under provincial jurisdiction.
9.Property and Civil Rights:
Provinces have authority over property and civil rights.
10.Administration of Justice:
The organization and maintenance of provincial courts are under provincial control.
11.Prisons:
Provinces have the power to establish, maintain, and manage provincial prisons.
12.Local Works and Undertakings:
Provinces can legislate on works and undertakings that are of a purely local or private nature.
13.Incorporation of Companies with Provincial Objects:
Provinces have authority over the incorporation and regulation of companies with provincial
objects.
14.The Solemnization of Marriage:
The regulation of marriage ceremonies falls within provincial jurisdiction.
15.Property in the Province:
Matters related to property and civil rights within the province are under provincial control.
These powers are exclusive to the provinces, and the federal government has no authority to
legislate
in
these
areas.
The
distribution of powers between the federal and provincial
governments is a fundamental aspect of the Canadian federal system.
2. Review the following scenarios and identify whether the legal matter at issue will be
categorized as public law or private law with your reasons clearly set out.
a. Jessica must attend a hearing before an immigration tribunal regarding her status to live and
work in Canada
-
PUBLIC LAW.
Jessica’s case involves immigration, and her issue deals with her status
to live and work in Canada. This matter would involve the government, and immigration
policies which would all fall under
public law.
b. George has been fired from his job and plans to sue his employer for wrongful dismissal.
-
PRIVATE LAW.
George’s case would fall under
private law
because this is a dispute
between employers. over wrongful termination. Both parties are dealing with
employment contracts and individual rights that do not have anything to do with the
public.
c. Anastasia got a ticket for talking on her cellphone while driving and intends to fight the ticket
in court.
-
PUBLIC LAW.
Anastasia’s situation involves a traffic violation that falls under the
jurisdiction of public traffic laws of the city she is in. Violations of this sort are regulated
by public authority (police, courts) for the safety of the citizens which would make this a
public law
matter.
d. Maria is bringing a legal proceeding against her competitor for patent violation.
-
PRIVATE LAW.
Maria’s case involves a patent violation between competitors. This is a
private law
matter as the only parties involved in this dispute are Maria and the
competitor who they are disputing over a patent. Governments and regulations are not
involved here.
e. Sarah has been fined for fishing without a license.
-
PUBLIC LAW.
In Sarah’s case, she would be dealing with
public law
as a fishing
license is regulated by a public body to protect wildlife and natural resources.
f. Kosta is commencing legal proceedings against his business associate for breach of contract
-
PRIVATE LAW.
Kosta is breaching a contract with his business associate, this matter
only involves these two individuals which would fall under
private law
as there are no
governments or regulatory bodies involved.
g. Sami has filed a complaint with the Canadian Human Rights Commission alleging
discrimination by his employer.
-
PUBLIC LAW.
Sami involved the Canadian Human Rights Commission, a public body
in his discrimination complaint from his employer. Due to the involvement of the
Commission, this would make this case a
public law
issue.
h. Rino’s company has been fined by the provincial Ministry of Labour following a workplace
accident.
-
PUBLIC LAW.
The Ministry of Labour fining Rino’s company would make this
public
law
matter as the Ministry of Labour is a provincial body that regulates occupational
health and safety and since Rino’s company had a workplace accident, this would cause
them to be involved.
i. Sonya has received several notices from the Canada Revenue Agency about failing to report
income.
-
PUBLIC LAW.
In Sonya’s situation, the CRA is involved and has sent her numerous
notices in which she failed to report her income. Dealing with the CRA would be a
public law
matter as tax laws are public matters with the government
j. Olga has applied for a liquor licence for a new nightclub, but the neighbours are opposing it.
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-
PUBLIC LAW.
Liquor licenses are regulated by the government, making this issue
between Olga, her neighbors, and the body that issues liquor licenses a
public law
scenario.
k. Kira has made a complaint to the Privacy Commissioner about the disclosure of her personal
financial information by a bank manager without authority.
-
PUBLIC LAW.
The Privacy Commissioner is a public body that protects individuals'
rights. Kira’s complaint to them would make this issue a
public law
matter because her
private information was released without consent.
3. Identify and discuss the main similarities and differences between mediation and
arbitration.
Using the definitions from the slides, we have identified the main similarities and differences
between mediation and arbitration below:
Similarities:
Alternative Dispute Resolution (ADR) – The biggest similarity between mediation and
arbitration is that both of them fall under the same category of Alternative Dispute Resolution.
This means that both of their objectives are to resolve disputes in substitute to court action.
Third-Party – Both mediation and arbitration involve a third party who facilitates.
Differences:
Decision-Maker – In mediation, the third party facilitates but does not make a decision. In
arbitration, the third party both facilitates and makes a binding decision.
Decision-Making –Mediation is a more flexible decision-making process where the facilitator
(mediator) makes non-binding suggestions that can be rejected by the parties and further
discussed. Arbitration is a more formal decision-making process, the facilitator (arbitrator) hears
each party's case but ultimately makes a binding decision.
4. Explain why commercial or business enterprises are most likely to favour arbitration as
the method for resolving business disputes.
Commercial or business enterprises are most likely to favour arbitration as the method for
resolving business disputes for a few different main reasons:
1.Choice – In arbitration, parties can choose from a pool. This gives the business the ability to
select an arbitrator with expertise in relevant fields, giving more confidence that they will be able
to make a better decision.
2.Decision Making – With the arbitrator being a neutral third party, businesses are most inclined
to the arbitration process because they have equal grounds with the other party. This gives the
business more confidence that the correct decision will be made knowing that the decision made
is going to be purely based on facts.
3.Judicial Review – Since judicial review is a possibility, businesses are more comfortable
knowing they can potentially rework the decision if the arbitration process was flawed.
5. What are the various pre-trial procedures? Discuss why discovery is important as a
pre-trial procedure
Pleadings
are filed and this includes:
-Statement of Claim (filed by the plaintiff
-Statement of Defence (filed by the defendant)
-Counterclaim filed by the defendant
-Defence to Counterclaim filed by the plaintiff
Discovery
-of documents / records
-examination for discovery: Verbal examination of parties under oath
Pre-trial conference/Mediation
: meeting to determine which issues remain to be tried and
whether the parties can themselves resolve the dispute
-formal offer to settle
Discovery is important as a pre-trial procedure because it ensures that litigation is conducted in a
fair and open manner, where each side is aware of the evidence and can prepare their cases
effectively.