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Module 1.01 ACJ101 Seneca Association of Canadian Court Administrators.

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1 Module 1.01 ACJ101 Seneca Association of Canadian Court Administrators

2  Describe the history of the common law  Explain why we have both common law and the Civil Code in Canada  Give some of the traditional rationales for the existence of the courts  Given a set of facts, employ “common law reasoning” to support a conclusion of law

3  We have two legal traditions in Canada French (continental, Civil Code, Napoleonic Code) English (common law)  This presentation is about the common law, or English tradition

4  A.D. 1066, when William the Conqueror, a Norman, crossed the English Channel and fought Harold Godwineson’s forces  Harold died in battle, according to legend, taking an arrow through the eye  William became William I, King of England

5  Hostile land  Doesn’t speak the language  All his supporters are French  There is absolutely no infrastructure  No code, no statutes  All “law” is administered locally

6  I own the land— other people can hold it, but I own it  It’s a masterstroke because William can keep other lords in line through threats of expropriation

7  Local lords will continue to use local custom to decide disputes on the land they held  It’s a masterstroke because No need to create a code Locals are under the same régime they were before—how can they complain?

8  One of obligations of holding “estate in land” was resolving disputes occurring on land  “Courts” originally meant royal courts, or manor courts; that is, the place where nobles entertained themselves, guests and conducted business  Local nobles heard and decided what we now would call legal cases

9  Lords, though, were often military men  Some were good administrators  Some were not  Led to unequal treatment  Questionable practice of having local lord decide local matters

10  As well, money won or lost at manor court was paid into court—that is, the Lord hearing the dispute would take the money, not award it to the litigants

11  In the 12th Century, King Henry II first took over the role of judge himself, then sent his “court” out to hear complaints  Curia Regis —roving judges, based out of London  These people were all Lords themselves  Litigants could choose manor court or Curia Regis

12  Litigants began to prefer the King’s Court They were professional judges, not military men They were neutral, because they had no previous relationships with litigants  Over time, lords lost their customary power to conduct manor courts  The King’s Court became the courts of law

13  Curia Regis faced the same problems that faced William I No code No infrastructure  Still relied on customary law, but, because they were all out of London, they would occasionally get together and discuss their cases

14  We’re in business because We collect awards for the King Inconsistent decisions were leading to injustice  They decided, on their own, to decide similar cases similarly  Decision was not that they should do so, but that they must do so  Stare decisis et non quieta movere


16 Curia Regis Court of Common Pleas King’s Bench

17  Civil jurisdiction—that is, dispute does not involve the Crown  Very profitable for the Crown  Over time, less went to the Crown, and more was retained by lawyers (and sometimes clients)

18  Became the court that heard pleas from the Crown (hence “King’s Bench”)  Customary law (pre-William I) was surprisingly civil  Almost everything, including murder, was punishable by fine and tried by a jury  King’s Bench started with tort concepts from common law

19  A typical complaint or plea from the Crown was the unjustified death of a taxpayer, for which the Coroner sought compensation for lost revenues  Borrowing from civil law, the Coroner, representing His Majesty The King, suing the defendant: Rex (or Regina ) v. Accused

20  King managed to completely crush traditional powers of other lords (including powerful religious leaders) to run their own courts  Done by sending his judges out to adjudicate (and collect awards)  These judges create common law by applying stare decisis  They develop criminal law at King’s Bench, civil law at Court of Common Pleas

21  By 1215, King John holds the English Throne  Common law has made him the most powerful monarch in Europe  Powerful lords and clergy force John to sign

22  John forced to acknowledge King not above the law Certain privileges of the powerful are untouchable  While limiting royal power (and Curia Regis ) courts gain interpretive power through “back door”  Though revered, Magna Carta protected only the rich and powerful from king

23  Gave consistency to law initially  Ended up becoming inflexible, unjust  One justification for common law was to reduce injustice of customary law  Common law is “dead men’s thoughts”— living judges forced to use reasons of a long-dead judge

24  King still in charge of his judges  Just like a customer asking to speak with the manager, a litigant could ask to speak with the king through petition  “Good conscience”  “Throw myself on the mercy of the court”

25  King had habit of occasionally granting relief  Petitions increased in number  Handed the job of reviewing petitions over to the Lord Chancellor  Used same yardstick—“good conscience”

26  Chancellor became too busy with petitions  Created his own court system  Almost all were clergymen, all using “good conscience” as a guide

27  Named chancellor in 1529  Lawyer, trained in common law  Disliked inconsistent rulings  Choose lawyers to act as chancery judges  Imposed “doctrines” of equity

28 1. Only grant equitable relief when common law is inadequate 2. Only grant equitable relief to “those that do equity”—the famous “clean hands” doctrine 3. Equity prevails cover common law 4. Look to reasonable expectations of parties 5. If you want your remedy, move fast— doctrine of laches

29  Damages  Return of property  Injunction  Specific performance  Accounting  Constructive trusts  Rectification  Equitable estoppel  Bona fide purchaser for value without notice  Rescission

30  Mareva order or Mareva injunction  Anton Pillar order

31  Since 1870 in UK (and earlier in Canada), equitable courts and courts of law have been merged  This only means one judge can decide both legal and equitable matters  It does not mean that equity and law have merged

32  Sale of cottage  Purchaser gives deposit  Seller backs out  At common law purchaser only gets deposit and reasonable expenses

33  You don’t want your money back—you want the cottage! Common law damages inadequate Your conduct throughout the deal was beyond reproach ( i.e., you have “clean hands”) Equity prevails over common law  Sounds like you should get an order for specific performance

34  Constitution Act, 1867, creates “superior courts of record”  Descendants of merged courts  Both equitable and legal jurisdiction  Civil, criminal, federal, provincial  British Columbia Supreme Court, Manitoba Court of Queen’s Bench, Supreme Court of Prince Edward Island

35  The courts were one of the first governmental institutions to keep accurate records  “Rolls” were originally tax rolls, a term still used today  As judges made pronouncements on rights, court record became the official document to prove rights


37  It’s just like the other case  It’s different than the other case  Are “material” facts different or the same?  Often many lines of cases develop  One line favours one outcome; the other favours the exact opposite outcome

38 Betts was a pawnbroker. Like all pawnbrokers he receives goods from people in exchange for cash loans. If the debtors fail to repay the loan (with interest) within a certain amount of time, the goods they pledged become the property of the pawnbroker, who then sells the goods. The debt is then forgiven. Obviously, the loan is far less than the value of the goods, since the pawnbroker has to sell the used goods for the amount of the loan and lost interest just to break even on the books. Andrews walked by Betts’ shop and saw in the window his silverware. It had been in the family for generations, but had been stolen. Andrews walked in, and demanded the silver. Betts refused, saying the pledge (the person who provided the silver) was a silver-haired, older woman. Her clothes were worn, but clean. She claimed the silver was heirloom silver, and had been in the family for years. She just needed a small loan to “tide her over.” She was never seen again. Betts can prove he advanced the money. Andrews can prove the silver was his. The judge ruled in Betts’ favour. She found Betts was a bona fide purchaser for value without notice, an equitable concept that says: if you get property, pay a reasonable amount of money for it, and there’s no reason for you to believe the seller is dishonest, then the property is yours. That is, if you buy in good faith, it’s yours. The legal owner cannot prevail against you. Looking at the whole situation, Betts proved he was a bona fide purchaser for value without notice. As such, Betts trumped the legal owner.

39 This case, Carlin v. Davids, was similar to Andrews v. Betts: A pawnbroker was sued for possession of an Art Deco vase that plaintiff Carlin could prove was his. Davids, the pawnbroker, argued he was a bona fide purchaser for value without notice. The evidence showed the pledge was, well, on the shabby side. He was unshaven. His clothes were old and unclean. His shoes were mismatched. Like Andrews, the pledge had no receipt, claiming the vase was inherited. In Carlin, the judge ruled that the pawnbroker did not purchase in good faith. There was enough about the situation that he should have led Davids to believe the pledge was not the owner. Since the equitable rule did not apply, the good ol’ common law rule, that owners defeat everyone else, meant Carlin won.

40 In this case, we have the same set-up: a defendant pawnbroker, a mysterious pledge and a plaintiff owner. The pledge, however, resembled the pledge in Andrews. He was pledging a rare, antique book, which he claimed was inherited. He was fairly well-dressed, sober and well-spoken. In ruling in the pawnbroker’s favour, the judge added: “I might add, though, that unlike Andrews and Carlin, this plaintiff was not the innocent victim of a theft. Rather, the plaintiff negligently abandoned the property, and decided, somewhat whimsically, that he wanted his book back only when he saw it in the defendant’s store window.”

41 Hook, the pawnbroker, acquired an expensive digital camera, a Phase 1. Hook described the pledge as a “skateboarder kid,” who claimed he received the camera as a birthday gift. He used it for about a year, grew tired of it, and decided to pawn it. Hook gave the pledge $500 for the camera. Even used it was worth $18,000. Even Hook was surprised when he later learned the value. Gill was a professional photographer, who was taking architectural shots of downtown. He was at a downtown café, sipping a coffee outside, and went inside the café to use the washroom. He thought the camera was the case around his neck. Only when he returned to the table did he realize he left it by the chair. Gill was away from the table for about four minutes. He thought there was no hope of finding the camera, and was stunned to see it two months later in the defendant’s window.

42  Legacy of Roman Empire  Corpus Iuris Civilis, a snapshot of Roman common law  Continental Europe familiar with Roman law and referring to the code  After collapse of empire, easiest, cheapest thing to do was continue using code

43  French settlers used a version of the code, but customary law developed along side use of code  Just like the Romans, every now and then, the French government would issue decrees, requiring use of Parisian code  Custom would creep back in

44  French settlers a bit concerned about losing their traditions  British administrators realized the French were not looking forward to using common law  Protected religious and legal traditions in Québec Act, 1774

45  Impact of Napoleonic Wars  A “rationalist” approach  Encouraged Québec to create its own modern code, and lay customary law to rest  Civil Code reissued in Québec in 1866  Last major revision began in 1955 and was implemented in 1994

46 Code  Written  Explicit  No deference to appeal courts or previous cases Common law  “Unwritten”  Hidden inside previous cases  Great deference to appellate decisions  Some deference paid to other cases

47  Describe the history of the common law  Explain why we have both common law and the Civil Code in Canada  Give some of the traditional rationales for the existence of the courts  Given a set of facts, employ “common law reasoning” to support a conclusion of law

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