Origins of Canadian Law and Application

Construction Contracts

Construction Contract Law

Origins of Canadian Law and Application

Historical - In a Nutshell

a.Role of the Sovereign

In our day-to-day life, we tend to think of various things as being “ours” - our car, our shoes, our house, our land. Ownership of things is so ingrained in our being that the idea that we may not have control over those things that we own is quite foreign. However, ownership is different from controlling an object or person.

Humans are a species that exist in communities; we do not survive long in a solitary environment. Certainly, the procreation of our species demanded communities of, at least, two members. The family structure that resulted led to increasingly larger groups that lived together until the pressures holding the groups together were overcome by the need to move apart.

Historically, an individual did not really own certain things. For example, the land which the group (tribe, village) used was not thought of as being owned by the individual. Rather, the land was used by the individual or group but was really “owned” by nobody. For early societies that were made up of migratory hunters, this concept worked since they never put down roots to the point where they would have protracted disputes about detailed boundaries. For those societies that were based on cultivation of a crop or herd, the detail of a boundary would be critical. Each band would declare their area of influence and it would be off-limits to others. In case of dispute with other bands, the resolution might take the form of warfare. Within the band, some resolution process would be used to deal with disputes between members.

This is the essence of sovereignty. [1] The authority that deals with serious matters of concern to the group is the sovereign, the physical embodiment of the Almighty.

Modern authors[2][3] consider supreme authority within a territory as being indicative of sovereignty. This supreme authority, in early times, was believed to be derived from God, in whatever form God took for the population. Thus, the Sovereign was believed to be anointed by God to take his/her position as head of the entity within the geographic area.

The idea of Sovereignty is quite different from ownership. The Sovereign may have owned land, but more important, the Sovereign controlled all aspects of life within that territory. While the Sovereign might cede possession and certain aspects of control of the land to an underling, the Sovereign still retained control and, potentially, could seize control of that land at any time in the future.

b.Limitations on the Sovereign

What might work in a cultural environment that was based on hunting or farming did not work as well when society became more sophisticated and manufacturing and trade developed. When commerce started to flourish, certainty in transactions was important.

As the Sovereign became dependent on a hierarchy of nobility to manage his lands, the nobility needed certainty in their dealings with each other and the Sovereign. In the context of our culture, this meant that the English King was required by his nobles to submit to a standard of behaviour that they could accept. The first written manifestation of this recognition by the Sovereign of a limitation of his power is the Magna Carta, negotiated between the nobles and King John in 1215AD.[4]

Thus, in a written document, a Sovereign could limit his sovereign rights. These written documents between Sovereigns became known as Treaties. Written documents dealing with matters within a Sovereign entity, by the Sovereign, are sometimes called Constitutions. In these cases, typically, these documents deal with a surrender of some sovereign power.

c.Surrender or Loss of Sovereign Authority

One way to lose sovereignty is by voluntarily surrendering it by treaty. There are many examples of such treaties; NATO, the North Atlantic Treaty Organization, was formed by the North Atlantic Treaty in 1949[5]. Here, a number of nations agree to surrender their sovereignty with respect to initiating armed conflict in the specific case where another of the members is attacked.

Another treaty was formed between the United States and Russia regarding the sale of Alaska[6] where the USA purchased the territory of Alaska for $US7.2M.

Another, perhaps more obvious, way to lose sovereignty is by conquest. If a sovereign power is overwhelmed by armed force, it ceases to retain control over its territory and, by definition, ceases to be sovereign. The conquering sovereign then becomes supreme.

d.Sovereignty and the Law

The concept of sovereignty is crucial to understanding the evolution of the legal system. Our system of justice is an outgrowth of dissatisfaction with the early British system of monarchical rule. When the nobles forced John to concede elements of his sovereign authority and, further, legitimized a mechanism to document this concession, a change was started that has resulted in today's legal system. However, even today in Canada, some remnants remain; our judges are still appointed by our sovereign, albeit on the recommendation of the Prime Minister.

e.Sovereignty and Canada

The Sovereign of Canada is the Queen, represented in Canada by the Governor General. All governmental power flows from the Sovereign although our Sovereign has distributed certain powers to agents through specific measures – the Constitution – and by practice over the years.

Before our constitution was enacted in 1982, the final authority in Canadian life was Parliament, which could use the power given to it by the Sovereign to make decisions. The delineation of that power was contained in the British North America Act, passed by the British Parliament in 1867. The Constitution changed that by providing a set of supreme principles and rights that parliament must observe, subject to the purview of the courts.

Thus, our sovereign has provided a constitution – a deliberate relinquishment of sovereign powers to the federal parliament, the provincial legislatures and the courts.

f.Canadian Constitution

The content of much of the Canadian Constitution can be found in the British North America Act passed by the English parliament in 1867. Over the years, there were changes to it until 1982 when it was transformed into the Canada Act, passed by the British parliament on March 29, 1982. [7]

In the Canada Act, the English parliament passed a bill, proclaimed by the Queen, which established in law that the English parliament would no longer be able to pass measures that could dictate Canadian activity.

2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

With this act, the Queen, as sovereign of England, renounced any authority of the English Parliament over Canadian affairs; she retained her authority as sovereign of Canada. Now, the Canadian institutions were the final decision makers with respect to Canadian affairs.

Schedule B to the Canada Act 1982 is the Constitution Act 1982. Part I of the Constitution Act 1982 is the Canadian Charter of Rights and Freedoms. The Charter is the first statement of the rights of Canadians that could be enforced in spite of the wishes of Parliament[8]

In the Schedule to the Constitution Act 1982 is a list of statutes that are renamed and incorporated; the first is the Constitution Act 1867, formerly the BNA Act. This act defines the respective authorities of the federal and provincial legislatures.

The Constitution Act 1867 gives the provinces virtually exclusive authority in matters respecting civil disputes. Note the following excerpt from the Constitution Act 1867:

Exclusive Powers of Provincial Legislatures.

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,--

11. The Incorporation of Companies with Provincial Objects.

13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

In section 92.13, the reference to Civil Rights means civil matters as opposed to criminal matters; the term “civil rights” has, in some quarters, come to mean “individual rights” which are dealt with in the Charter.

The Court System

History of the Court System

The court system in use in Canada is derived from the courts of England. Historically, there were many separate courts but, for our purposes, two are very important in the context of our studies, the courts of Law and the courts of Equity.

The courts of law make their judgments primarily on the basis of decisions made by previous courts and statutes of Parliament while courts of equity make their judgments based on the judge’s opinion of fairness.

The King’s Bench (or Queen’s Bench – depending on the gender of the monarch) began as the King, sitting in counsel with his advisors, making decisions on matters brought before him. Initially, the King would be dealing with matters that concerned him, as monarch. As time passed, the decisions were made by judges in the absence of the King and in 1178, Henry II ordered that five judges should be available to conduct hearings in his absence – in effect, a standing court at Westminster. The subject matter of these hearings began to expand beyond matters dealing strictly with the King and included disputes between individuals, called Common Pleas. In 1215, the Magna Carta provided that there should be a Common Bench to which all matters not involving the King should be referred and that such hearings should be in a fixed place.

In 1280, Edward I formed the Court of King’s Bench to hear petitions for justice instead of the King hearing them personally.

Thus, the court system was split into the Court of King’s Bench and the Court of Common Pleas.

The courts of law became known as the King’s Bench or Queen’s Bench, depending on the gender of the Monarch. The courts of equity were called the Chancery Court.These courts were merged in 1873 and now all courts can deal with both issues involving law and equity.

Responsibility for the Court System

The provinces have the sole responsibility for organization of the court system. However, judges to the Superior, District and County courts are appointed by the Governor General. Further, the Federal Government is charged with the responsibility to “provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada[9].” The “General Court of Appeal” is the Supreme Court of Canada and the Federal Courts are the “additional Courts” referenced.

Parliament established the Supreme Court to provide for such a final appeal mechanism but until 1982 the decisions of the Court could be appealed to the Privy Council in Great Britain.[10] This is no longer the case; the Supreme Court is the final authority for all judicial matters in Canada.

Parliament has established Federal courts to deal with certain non-criminal matters arising out of Federal legislation, such as taxation.

Structure of the Courts in Alberta

In Alberta, we have three different levels of courts; Provincial Court, Court of Queen's Bench and the Court of Appeal. Further, Provincial Court is divided into Criminal, Civil, Family, Traffic and Youth courts. Each court can hear cases and make decisions with respect to the area of law assigned to it. For example, a judge in Provincial Court – Civil can deal with certain types of civil disputes but cannot deal with a matter related to guardianship of a child. The area of law with which a court can deal is called its “Jurisdiction”. The Provincial Legislature established each court and defined its operation through statute. [11][12][13]

The following table illustrates the respective jurisdiction of each court.

Name / General Purpose[14]
Provincial Court / Civil / Civil Court hears all civil claims, subject to Provincial Statutory restrictions. The court is limited to claims of less than $25,000 subject to some restrictions.
Criminal / The Criminal trial court handles first appearances, entry of pleas, bail hearings, preliminary inquiries and the trials and sentencing of summary convictions and certain indictable offences
Family / The Family Court hears maintenance applications regarding spousal and child maintenance proceedings and custody access claims, when divorce is not an issue. In addition, this court hears all Child Welfare and Private Guardianship applications
Traffic / Traffic Court deals with offences (commonly referred to as provincial offences) under many provincial statutes, municipal by-laws and a few federal statutes. Traffic Court does not deal with charges under most federal statutes, including the Criminal Code.
Youth / The Youth Court hears all proceedings under the Provincial and Federal Youth Criminal Justice Act applying to youth between the age of 12-17 years inclusive.
Court of Queen's Bench / The Court of Queen's Bench is the superior trial court for the province, hearing trials in civil and criminal matters.
Court of Appeal / The Court of Appeal hears appeals from the Court of Queen's Bench, the Provincial Court and administrative tribunals.

Items for Discussion

Decision-making By Courts

Roots in English Law - Common Law
Development of the Courts
Jurisdiction & Stare Decisis
BNA Act and The Court System

Current Issues

The Constitution
Court System In Alberta - Jurisdiction of the Courts
Stare Decisis

Civil Disputes - The Court Process

Provincial Court
Court of Queen's Bench
The Appeal Process

Lawyers

Governance & Rules
Types of Law
Litigators and Solicitors - Differences
Using your lawyer effectively

References

Supplemental Materials – Sovereignty

Diagram of Court System
Provincial Court Act
Stare Decisis (II) – South Side Woodwork v R. C. Contracting Ltd.
Civil Claim Example (including dispute note)
Statement of Claim Example (including Defence and Counterclaim)
Excerpt from Rules of Court
Excerpt from Law Society Code of Conduct

Contracts

The material contained here is based largely on Fridman’s The Law of Contract.

A contract is an agreement between parties for the provision of one thing for another. The thing that is provided may be intangible but it must be able to be appreciated by the other party.

Fundamental elements of a contract are an offer, an acceptance and consideration. A contract is characterized by a mutual desire to create an agreement and the ability of each party to conclude such an agreement. A contract may be invalidated by one of the parties being subjected to duress, misrepresentation by one party or by the contract involving an illegal act.

Preliminary Matters to the Contract

Parties & Persons

The people that enter into a contract with each other are referred to as the “parties” to the contract. The parties can be any person that is recognized in law; a human being is an example of one such person. Others include business corporations, condominium corporations, municipal corporations or other entities established by legislation. Some other organizations have been accepted as persons for the purpose of contract even though their existence is somewhat nebulous. Examples of these are trade unions, aboriginal bands the Crown, and unincorporated associations.

Capacity

The parties must be able, in law, to enter into a contract. The law provides that certain non-human entities are legal persons and can enter into contracts. The law also has found that some persons cannot enter into contracts; these include:

• Minors (with some exceptions – necessaries, service, beneficial contracts),
• Insane Persons/Persons having a disordered mind,
• Drunkards,

Intention to be Bound

When a contract is formed, it is essential that both parties have an intention to be bound. This is generally achieved by an offer by one party to the other and the acceptance by the other party. Further, this agreement is manifest by some form of open agreement – perhaps written – that clearly shows the agreement. When we speak of a “handshake” deal, we are talking about the shaking of hands that would accompany the completion of the recitation of the terms of the agreement at the end of negotiation.

Formationof the Contract

Offer and Acceptance

Offer

An “offer” means the signification by one person to another of his willingness to enter into a contract with him on certain terms.[15] The offer must be made with the intention of forming an enforceable relationship with the other person.

It may seem that the meaning of an offer is pretty straightforward, however, consider the following examples: