Understanding Canadian Law: Substantive, Procedural, Public, and Private

Substantive and Procedural Law in Canada

Substantive Law

Substantive law encompasses the rights and rules that govern behavior and set limits on conduct.

Procedural Law

Procedural law determines how substantive laws will be enforced.

Public and Private Law

Public Law

Public law includes constitutional law and determines how the country is governed. It also regulates our relationship with the government.

Private Law

Private law governs personal, social, and business relationships.

Canada's Constitution

The Constitution Act, 1982, formerly known as the British North America Act, created Canada in 1867. It serves as the "rulebook" that the government must follow. It includes the Charter of Rights and Freedoms.

Canada's Constitution has three elements:

• Statutes
• Case law (i.e., jurisdiction to create statutes)
• Conventions: unwritten rules dictating how the government is to operate and include the rule of law

Sections 91 and 92 divide powers between the federal and provincial governments.

Each province has the power to establish rules in those areas over which it has jurisdiction. The "Peace, Order, and Good Government" (POGG) clause states that the federal government has residual power to make laws on things not included in the Constitution Act.

Charter of Rights and Freedoms

The Charter was added as a Constitutional guarantee of basic rights and freedoms in 1982. It eliminates the power to interfere with human rights except by Constitutional amendment. Rights are protected by judges rather than governments.

The Charter has seven key protected pillars:

• Fundamental Freedoms
• Democratic Rights
• Mobility Rights
• Legal Rights
• Equality Rights
• Official Language Rights
• Minority Language and Education Rights

Civil Litigation Process

The civil litigation process typically involves the following steps:

• Statement of Claim (plaintiff)
• Statement of Defence (defendant)
• Counterclaim/Defence to Counterclaim

Damages

Damages refer to monetary compensation awarded in a legal case. There are different types of damages:

• General: Awarded for pain and suffering or for future lost wages.
• Special: Reimburse the litigant for expenses or costs incurred before the trial.
• Punitive: Intended not to compensate the victim but rather to punish the wrongdoer.

Other Remedies

Besides damages, other remedies may be available, such as:

• Accounting
• Injunction
• Specific performance
• Declaration

Judicial Review

Judicial review examines not the decision itself, but the process by which it was made. One of the following must be present for a successful judicial review:

• Invalid statute
• Decision or remedy goes beyond the power set out in legislation
• Errors of law on the record
• Failure to follow procedural fairness (natural justice)
• Abuse of power

The Postbox Rule

The postbox rule states that an offer is accepted when the acceptance is placed in the mail.

Select one:

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