The Common Law in Your Life
- Are you puzzled by the expression "common law"?
- Do you know what the common law is, and how it works?
- What does "case law" mean, and how does it affect my life?
- What is the difference between common law and statute law?
This article is a plain language explanation of the origins and role of the common law as it operates in Canada. The article explains how the common law came into existence, where it might apply in your life, and how it works alongside the laws passed by Parliament and provincial legislatures.
Contents
What is the Common Law?
What is "common" about the Common Law?
What are Precedents?
Some Laws Rooted in the Common Law
What about Law in Quebec?
Common Law and Statute Law
The Supreme Law of Canada
Common Law in Daily Life
Aboriginal People and Land Title
Torts and the Common Law
- Intention to cause harm
- Interference with your reputation
- Interference with your property and possessions
- Failure to take reasonable care: negligence
You be the judge
- Fight at the Hockey Game: who's at fault?
- Nuisance: golf balls go flying
- Ice on the highway. Who is responsible?
- Who should have told him to buckle up?
- Parents hold teen party: drinking and driving
- Victoria Day: Fireworks injury
- Postal worker bitten by dogs
What the judges decided
Web links
Acknowledgements
What is the Common Law?
Most of us think that the laws in Canada are passed by Parliament or provincial legislatures. And we're right, because most of the important laws on the books are pieces of legislation - or statutes - which are examined, debated and passed by our elected representatives.
Some good examples of recent statutes passed by Parliament are the Youth Criminal Justice Act, which deals with young criminals, or the Anti-Terrorism Act which strengthens Canada's ability to fight terrorist activities inside Canada and abroad.
But there is another kind of law that also affects our daily lives. This is the common law, or, "judge-made" law. The common law is law based on decisions by judges. These decisions establish the principles other judges follow in other cases.
(There are other meanings of common law, buried deep in history. What we're most interested in here is how the common law is used today in English Canada.)
Typically, what happens is this: When a case goes to court, a lawyer presents arguments to the judge to show that - in past cases - the law has been interpreted in a way that supports his or her side of the dispute.
The lawyer for the other side may point out different arguments about past cases to the judge which support the opposing position. It is up to the judge to consider these cases and to decide which interpretation is best.
When the judge makes a decision, it becomes part of the common law. This is why it is also often called "judge-made" law.
To understand how all this works, you do need to know a little bit about why judges rely on cases, and where the practice came from.
Here's the basic idea of common law:
In common law, judges follow the decisions of previous cases. When one judge has made a decision on an issue, another judge facing similar issues, with similar circumstances, will make a similar decision.
Common law is used in all Canadian provinces except Quebec and all of the United States except Louisiana.
Many other Commonwealth countries around the world also use the common law system.
All of them inherited their justice system from England, where the common law comes from. They are sometimes called "common law countries" or "common law jurisdictions."
What is "common" about the Common Law?
The common law tradition grew up in feudal England after the Norman invasion in 1066. Before 1066, legal decisions were largely based on local custom. The local customs for dealing with problems between people differed widely from one county to the next.
But in the twelfth century, the king began to send his judges out to travel around the country. Before long, the judges were making the same kinds of decisions in Yorkshire as they were in Cornwall. In this way, customs evolved into laws made by judges, and shared throughout the land.
This is another meaning of "common" law. It is "shared law." It was the law common to the whole of England. The development of common law was a gradual process.
For example, hundreds of years ago, a man in England rode his horse onto his neighbour's turnip field. The man who owned the turnip field complained to the court. The judge decided that the horseman shouldn't have gone onto his neighbour's field because he hadn't been invited to do so. From that - and a string of later cases like it - a common law principle emerged: you cannot enter another person's property without permission. You cannot trespass.
The common law was primarily concerned with the problems like that one. How can we keep ourselves safe? How do we protect our property? What can we do if someone injures us, or damages the things we own?
To answer these questions, judges listened to countless real-life stories. Faced with each unique situation, they provided what they thought was a fair and reasonable solution. Basically, they had to make it up as they went along. They did not have written "codes" of laws to look at.
When the judges who had been sent out to travel around England came back to home base at Westminster, they discussed what they'd been deciding. As a result of these discussions, they developed this rule: when they were faced with similar disputes and similar circumstances, they would follow the decisions that they had already made.
You can imagine the effect of following past decisions. People who came to court began to know what to expect. Decisions became more predictable and consistent. This was useful because you knew what the consequences would be when you broke one of the common law rules.
Over time, the common law developed a whole body of rules to deal with threats to people's safety. These included rules about murder, rape, and assault, things which threatened personal safety. They also included rules about such things as fraud and cheating, which damaged private property. Rules were developed about protecting a person's reputation (libel and slander), religious sensibilities (blasphemy), public morals (obscenity), the independence of judges (contempt) and the lawfully established system of government (sedition).
In the United Kingdom, the legal system was based largely on common law until around the seventeenth century. Since that time, new laws and law reform have increasingly been created through acts of Parliament, usually inspired by policies of the government of the day.
When the British immigrants came to Canada, they brought the common law tradition with them. Each province assumed English law at a different time. The first province to adopt common law was Nova Scotia in 1758.
Common law isn't exactly the same everywhere. It grows and changes in response to what's happening in each country. From Canada to India to New Zealand, lawyers can consult cases, to see what the others have decided. However, while the United Kingdom, English Canada, and many Commonwealth countries all follow the common law tradition, each of these jurisdictions has developed its own way of doing things.
The development of case law still remains an important source of law for all provinces in Canada expect Quebec. A judge who deals with a particular case is required to follow the decisions of previous courts which dealt with the same sort of case in the same sort of circumstances.
What are precedents?
To follow a past decision is to use a precedent. A precedent is a word that means "what has gone before."
Judges in the common law provinces of Canada continue to use precedents. They have a legal term for this approach. It means to stand by decided cases. The legal term is often quoted in Latin - stare decisis - because Latin was the language of the courts in England, back when this rule was made.
Whether a decision (technically called a precedent) is binding on a judge depends on two things:
- First, the ruling must come from a higher court than the court making the decision. In most provinces, this means the supreme court of the province, or, higher still, the appeal court of the province. The Supreme Court of Canada is the highest level of court.
- Second, the ruling must provide the reasons behind the decision. Only the reasons behind the decision can be binding on judges in later cases. They provide the legal principles and rules necessary to solve the problems that come before the courts.
A judge who uses a previous case has to decide what rulings from the earlier decision are binding and whether any is relevant. The judge may say that the case before the court is "distinguishable" from the earlier case (i.e. has different facts and therefore comes under different areas of law).
For more information, see The Common Law in Your Life: Supplementary Material
under What the lawyers and judges say about Common Law.
Some Laws Rooted in Common Law
Suppose someone asked you to answer this question: Name some of the most important legal rights people have today in Canada?
Chances are you'd include some of the legal protections that apply to people who are accused of crime. It's likely that, without even knowing it, you'd be identifying some of our oldest common law rules.
Here is an old common law rule from medieval England:
"The burden of proof lies on him who asserts the fact, not on him who denies it."
What this means, in more modern language, is this: "A person accused of a crime is innocent until proven guilty."
As the legal system developed, it incorporated common law principles into formal statements of the law. Look at these two famous examples, both from England, which took principles established by common law and put them into legal documents.
- The Magna Carta of 1215 guarantees that no free man shall be taken or imprisoned or dispossessed or outlawed, or banished, or in any way destroyed . . . except by the legal judgment of his peers or by the law of the land.
- The Habeus Corpus Act of 1641 says that no man could be put on trial except before the Courts "by due process and writ original according to the old law of the land."
Both are based on common law rules that were developed to protect people from arbitrary arrest and conviction.
Leap forward to the present, and look at the Canadian Charter of Human Rights and Freedoms. Section 11 (d) reads: "Any person charged with an offence has the right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal."
Many other principles that protect the rights of the accused have their roots in the common law: Here are some more examples of common law, hundreds of years old, that are to be found in current Canadian law.
- The accused must be given the benefit of a reasonable doubt.
- The Crown must prove its case beyond a reasonable doubt.
- Accused persons cannot be compelled to testify against themselves.
- A person under twelve years of age cannot be prosecuted.
Some of our most basic principles in criminal law go right back to the common law rules.
The same is true of our civil law, which is the law that governs disputes between private individuals. For example, the common law placed emphasis on a person's right to enjoy his property without interference from others. The phrase, "a man's home is his castle" is drawn from the common law tradition.
It's been a long time since the rider on the horse went into his neighbour's turnip patch. But in our laws today, you cannot go into someone's home against their will.
Another one of the basic common law principles was the safety of people. This is the most important rule. Common law said clearly that every person was expected to conduct their business without injuring others. When you do cause injury to others, either intentionally or by being thoughtless and careless, a court can tell you to pay money to the person you injured.
This ancient common law approach continues today in our civil law. It shows up most clearly in parts of our civil law that is still largely dependent on case law, as opposed to other areas of law governed mostly by statute. We will be taking a closer look at that area of law later in this article.
To sum up:
- The laws we use today have their roots in common law.
What about Quebec?
While the rest of Canada has the legal system that English immigrants brought from England, Quebec has kept a substantial part of the type of the type of law that French immigrants brought from France.
Today, Quebec shares the Criminal Code with the rest of Canada. However, for most other types of law, Quebec uses civil law and Quebec's rules and principles are found in the Civil Code (le code civil).
In Quebec, the legal system is based not on the British tradition of common law, but on the French tradition of codification of law. The Quebec Civil Code is an adaptation of the French Civil Code, with some elements from the early Roman Code.
Advocates of the common law argue that because its principles and rules have been developed by judges in response to problems that have actually come up in people's lives, the common law stays in close touch with everyday needs.
Advocates of civil codes, on the other hand, argue that because codes lay down general parameters only, there is more room for flexibility.
It is important not to overemphasize the gap between the two approaches. Both strive for certainty, fairness, and justice.
You will find many of the same principles in the common law and in the Civil Code. In Quebec, judges also look to learned authors ("la doctrine") and to previous cases ("la jurisprudence") as a guide to interpreting the rules of the Civil Code.
One of the real differences is that the common law provinces still tend to rely more on precedents, and to place more emphasis on previous cases.
For more information, see The Common Law in Your Life: Supplementary Material
under History of the Civil Code.
Common Law and Statute Law
We have three sources of law in Canada:
- The Constitution
- Statutes
- Common law
Under Canada's Constitution, the legislatures of the federal and the provincial governments have the power to make laws. The Constitution says which areas of law are a federal responsibility and which areas are provincial responsibilities.
The federal government and the provincial governments both make statute law. Provincial governments in turn pass on some of their powers to local councils, who make bylaws.
So what do you do when common law conflicts with statute law?
They were already thinking about this question back in Shakespeare's time. The answer they came up with was this: If a statute conflicts with the common law, the statute is the one to win out. This approach continued. In the 17th century, when Parliament took over making statute law from the king, they could change, modify, or override common law.
In England the rule developed that Parliament, as the elected representatives of the people, was the only body that could create laws. This is part of what is called "the supremacy of Parliament." Parliament was keen to assert its role as lawmaker because it had been involved in such a long and bitter struggle with the king, which it eventually won.
In Canada today, legislatures can modify, change or override common law. But unless a statute changes common law, the common law still applies.
The Federal Parliament and the provincial legislatures have never tried to enact laws that address each and every dispute or situation that comes up between citizens. Many areas of activity in our society remain essentially unregulated by statute law. In those areas, what guides our actions remains the common law, over 600 of years of judges making decisions.
If the legislatures create the laws, what are the judges doing?
It is often said that judges interpret the law, rather than create it. When they hear cases, the judges are making decisions about how the laws apply.
But do judges make law?
The English tradition stresses that only Parliament can create laws. Today in Canada, judges take a more active role. This is because of our Constitution.
The Supreme Law of Canada
The most important law in Canada is the Constitution Act,1982, which includes the Charter of Rights and Freedoms. Section 52 of that Act says explicitly that the Constitution is "the supreme law of Canada" and that any law that is inconsistent with it is "of no force or effect."
The Charter, which took effect in 1982, gave Canadian judges a new and powerful role. Before that, our laws followed the English tradition of the "supremacy of Parliament," where the statutes override case law, and where judges traditionally interpreted statutes in a very narrow way. But the Charter consists of broad, sweeping, general rules. It is up to the courts to determine their exact meaning.
If the Supreme Court of Canada finds that a statute law is not consistent with the Charter, they will tell the legislature that they need to change the law.
The common law in Canada fits into the legal system something like this:
Common Law in daily life
You can think of statute law as being black and white. It's the case law that explores the shades of grey. The shades of grey reflect the complexity of how the law works out in real life.
Suppose you want to make your own will, to make sure your loved ones will someday enjoy the benefits of all your hard work. You or your lawyer will follow provincial statute law, because our Constitution says that wills are a provincial responsibility.
For example: your inheritance
Now suppose you have a problem with a will. You've missed out on your inheritance of your share of your parents' property. You believe that the law about wills has not been applied fairly in your case. Chances are you will go to a lawyer to find out if you can do anything about it.
A lawyer will look at the case law to see if anything like your situation has come up before, and what was decided in that case.
To fully understand what a law means, you have to know how it has been applied in practice. You have to look at the case law.
Judge-made law evolves as society changes. A British judge, Lord Denning, once said that we should think of using past cases as we would think of using a path through the woods: "You must follow it to reach our end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches. . ."
For example: the snail in the bottle
A very famous case called Donoghue v. Stevenson is an excellent example of how judges come up with new ways of dealing with changing realities.
One afternoon in Paisley, Scotland, Mrs. Donoghue and her friend went to a pub, and her friend ordered a ginger beer with an ice cream to make a float. The ginger beer came in an opaque bottle. After she'd drunk part of it, Mrs. Donoghue made a nasty discovery. There was decomposed snail in the bottle. Mrs. Donoghue became ill.
Clearly, the snail had gotten into the bottle at the place where the ginger beer was manufactured. What could she do? The ginger beer makers said they couldn't be responsible. Since that ginger beer bottle had left their factory, it had been through several hands. They hadn't served it to Mrs. Donoghue.
Under the law at that time, the manufacturers were right. There was no law that provided a remedy for someone who was injured as a result of consuming a manufacturer's product.
The judge, in making the decision, turned to the common law principle that says we have a duty to make sure that we don't harm our neighbour by the things we do (or don't do). When that common law was made, back in medieval England, people knew their neighbours.
The idea of having a neighbour you'd never met hadn't ever come up. But by 1932, when this ruling was made, manufacturers were shipping goods to consumers around the world. In this context, who is your neighbour?
The judge said that the manufacturers of the ginger beer did have a duty to be careful not to harm their neighbour - including consumers they'd never met. It became a new rule: manufacturers are responsible for what happens to their products if they can reasonably foresee that their conduct may cause an injury to someone else.
For example: marriage
So our common law evolves in response to new problems. Common law also evolves in its relationship with statute law.
One of the most dramatic examples is found in the way in which statute law has replaced the old common law ideas about marriage.
Under the common law, a husband and wife were considered to be one unit. A husband had control of his wife's person. For this reason, it was impossible for a husband to rape his wife. Husbands had a right to sex with their wives and, if necessary, were entitled to claim it by "reasonable force." A husband could sue someone else for "enticing" his wife to commit adultery or to leave him.
A husband also assumed possession of his wife's property. As an English judge called Blackstone said in the 18th century, "By marriage, the husband and wife are one person in law. . . the very being or legal existence of the woman is suspended during marriage, or at least is incorporated or consolidated into that of the husband." Of course, this made things very difficult for women when marriages broke up. Their property remained in the hands of their husbands.
In the late years of the 19th century, the government passed statutes laws called the Married Women's Property Acts which gave women some control over their own property. The statute law changed to reflect the growing independence of women.
By the 1970s, family law acts were passed across Canada. In Canada, judges are asked to decide how the family law acts apply to complicated real-life problems.
In making these rulings, judges are constantly being asked to respond to emerging trends. For example, in a recent case, the Supreme Court of Canada was asked to decide what should happen when a mother with custody of the children wanted to move to Australia. The move meant that the father would not have the access to the children the couple had agreed to. The court found that the mother had the right to live where she wanted. The court then looked at what was in the best interests of the child, based on these new circumstances. They decided that the mother should keep custody of the child, while the father should have access in both countries.
For example: living together
A common law marriage is no big mystery. It's just an agreement to live together without being legally married. Today, many couples live together and don't get married.
Increasingly, people who "live common law" have the same responsibilities and privileges as married people do. For example, people who have been living together for three years are now legally "spouses."
But in one important way, the law still gives greater privileges to people who are legally married. When relationships break up, only legally married couples have a right to the division of assets in many parts of Canada.
Separating common law couples who cannot agree about how to divide the things they own can turn to the courts. There, judges will apply the common law principle that decisions must be fair (the legal term is "equitable").
For example: Suppose a common law couple has been working in a business together. The business is in the man's name. If the relationship ends, the woman can ask a judge to rule under common law that she owns a share of the business because of the work she had put into it.
To sum up:
- Common law changes as society evolves.
Aboriginal rights and title
Common law has also been central to a growing understanding about Canada's native people and their rights to land.
In Canada, the Supreme Court has made a series of major decisions about Aboriginal rights and title that rely on common law principles. Two examples are the Van der Peet and Delgamuukw decisions.
In common law, one way to find out who owns land is to look at who has been occupying it: The Supreme Court of Canada has found that Aboriginal rights and title come from the fact that aboriginal people have occupied the land.
For example, in the Van der Peet decision, Justice Lamer of the Supreme Court wrote:
". . . when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status."
From an Aboriginal perspective, Aboriginal title rests on much more than common law rights about occupancy of land. It is about the recognition of Aboriginal common law rights. Just as England has had common law, established by decisions made over hundreds of years, Aboriginal nations have had their own common laws, also passed from generation to generation and adapting to changing conditions.
The differences are important. For example, the Aboriginal understanding of property rights is not the same as that of the English common law and the Quebec Civil Code. The two European approaches are based on the concept of ownership.
The Aboriginal approach, by contrast, sees land as a sacred trust, to be preserved for future generations. As the courts continue to hear cases about Aboriginal title and rights, this alternate understanding will gradually become incorporated into common law, as case law continues to evolve.
Torts and the common law
We've looked at common law and we've seen how it is part of the legal tradition that came to Canada from England.
Back in medieval England, common law was the original law of the land. At first, all disputes were resolved by looking to the common law. Assault, for example, was part of the common law long before it became a crime named by a statute.
As time passed, many laws were written down. In time, crimes were mostly covered by statutes. Then family law was covered by statutes. Then contract law. For the most part, the case law in these areas focuses on interpreting how statute law should apply.
Today, there is only one area of law that continues to rely on a wealth of judge's decisions, rather than being governed by statutes.
This area of law has a peculiar name, torts. The word, tort, comes from the Latin word, "tortus," which means twisted, or crooked. The word is no longer part of ordinary English speech. Today, the only meaning of the word tort in English is as a technical, legal term.
What exactly is a tort? A tort is a civil wrong.
A tort occurs when a person acts in an unacceptable way towards another, causing them harm or injury. Everyone has a duty to be careful not to cause injury to others or harm to their property.
Tort law is based on the common law. We look to the common law to provide the answers to the following civil wrongs:
- Who must pay for injuries resulting from car accidents?
- How can you stop someone from trespassing on your property?
- What action can you take if you are falsely detained for shoplifting?
- Are you responsible if someone is injured on your property?
- Can a newspaper print lies about you?
- Can a hitchhiker who is injured in a crash sue the driver who gave him the lift?
Tort law is not the same as contract law. Contract law is about agreements between you and another person. But everyone has tort obligations, whether they have agreed to them or not.
Tort law is not the same as criminal law. But they can overlap. Something can be both a crime and a tort. Suppose I punched you and broke your nose. Two things could happen:
- First, this is a crime. Because it is a crime, I could be charged with assault. The Crown could prosecute me on behalf of society and not on behalf of the victim. If part of the sentence were a fine, it would go to the government, not the victim.
- Second, this is a tort, a civil wrong. As the victim, you could sue me for the injury. You could go to court and ask the judge to order me to pay you for the pain and inconvenience of having a broken nose. Note that this is a civil action between you and me.
Tort law holds people responsible for their actions. The person who did the wrong is made to pay compensation to the person they harmed or injured. Tort law also serves to educate the community as to what is unacceptable conduct.
Tort law emphasizes "fault" as an essential element. In tort law, fault generally means either a failure to take reasonable care, or an intention to cause harm.
The goal of a court case dealing with a tort is to look at who should bear the loss when a person has suffered an injury from someone's intentional act or through their negligence.
When you go to court in a tort action, you sue the person who harmed or injured you. "To sue" just means you ask the court to make the other person compensate you for the harm or injury. The compensation is called "damages."
One of the benefits of common law in tort is the extraordinary mobility of each other's tort case law among the common law countries such as the United Kingdom, Australia and Canada.
For example, an Australian case, Mercer v. Commissioner for Road Transport and Tramways, is used in Canadian courts to argue that you cannot excuse a wrong by saying it was customary to act in that way.
If I'm hurt or injured, how do I know what tort it is? Things can get pretty complicated when you're talking about torts. You can leave the details to the lawyers. As an overview, think of torts as being divided up like this:
1. Intention to cause harm
Interference with your person:
This would include assault, battery, or false imprisonment.
Assault is the threat of force, and battery is actually using the force. False imprisonment includes keeping you against your will if you are wrongly charged with shoplifting, for example.
It also includes intentional physical or mental harm. Suppose someone told you, as a sick practical joke, that your child had just been run over by a car. That would cause you such shock that you'd suffer physical and mental harm.
2. Interference with your reputation:
This would include libel (words in print) and slander (what people say).
3. Interference with your property and possessions:
This would include going on to your property, or interfering with your possessions. It also includes nuisance, which is interfering with your enjoyment of your property and possession.
4. Any failure to take reasonable care: negligence
The bulk of tort cases are about negligence. Negligence is careless behaviour that creates any unreasonable risk.
There are also groups of people who have special responsibilities for making sure that they take reasonable care.
These groups include manufacturers, drivers, parents, and what they call "occupiers" - this is where you have some control over the place and you have other people come onto your premises. An example would be a store owner.
There are also special rules about endangering others. All of these different torts have different rules and different remedies.
The good news is, courts do not restrict themselves to strict definitions of what tort fits into what category. Judges will consider wrongful conduct, and if they find it is a tort, they will provide a remedy.
The concept of the "reasonable person" is important in tort law. The reasonable person is the standard which the courts use to measure people's conduct to see if they exercised care not to harm others. A person is negligent if he or she fails to do what a reasonable person would have done in the same situation.
You be the Judge
In this section we invite you to be the judge.
Read the following scenarios and decide what you think should happen. Make your decision based on your own common sense and on the common law principle that everyone in society has a duty to act carefully so as not to harm or injure others.
Then check the next section to see what the judge decided, and why.
Remember that a tort is a civil action between private individuals. The person who sues is called the plaintiff. The person being sued is called the defendant.
- Fight at the hockey game: who's at fault?
During a hockey game, Agar and Canning followed the puck into the corner of the rink. Canning body-checked Agar, got the puck, and started to skate off. So Agar hooked Canning with his stick, trying to delay him. When Agar hooked Canning, he hit Canning on the back of the neck. Canning stopped, turned around, and, holding his stick with both hands, hit Agar in the face. Agar lost the sight in his right eye.
Would you award damages against Canning?
When you have made your own decision, check out What the Judge Decided.
- Nuisance: golf balls go flying
A golf club built its golf course in such a way that golf balls were frequently sliced on to the highway. The plaintiff was driving along the road when a golf ball crashed through the windscreen of his car, and injured him.
Would you find the golf club liable for damages caused by the golf balls?
When you have made your own decision, check out What the Judge Decided.
- Ice on the highway. Who is responsible?
A block of ice fell onto a truck and forced if off the highway. The provincial Ministry of Transportation and Highways had engaged an independent contractor to control roadside ice and snow, to remove overhanging ice from rock faces or tunnel walls, and to clear debris from the ditches along the side of the highway.
As a result of the accident, the truck driver suffered serious injuries that will permanently affect the use of his right knee and hand.
Would the government be liable, or would this be the contractor's fault?
When you have made your own decision, check out What the Judge Decided.
- Who should have told him to buckle up?
An eight-year-old boy was sitting between the driver and his father in the front seat of a truck. Although the truck did have a seat belt for the middle seat, the boy wasn't wearing it. The truck was hit but it wasn't the driver's fault. The father of the boy was killed and the boy was so seriously injured he became paraplegic.
Was the driver negligent because the boy wasn't wearing his seat belt? Or was it solely his father's duty to tell the boy to buckle up?
When you have made your own decision, check out What the Judge Decided.
- Victoria Day: fireworks injury
Mrs. Martin attended a Victoria Day fireworks display. The organizers had gone to a retail store to buy the fireworks. The store ordered the fireworks from T.W. Hand Fireworks Co. Ltd. The company sent a sealed packaged to the store. The organizers came in and picked up the sealed package. The organizers followed all the instructions on the fireworks package. Then a Roman Candle went crazy. It started sending out fireballs, then whizzed along the ground and into Mrs. Martin's foot. She suffered shattered bones in her foot and required numerous operations.
Who is responsible here? Whom would Mrs. Martin sue? Do you think she would she win?
When you have made your own decision, check out What the Judge Decided.
- Postal worker bitten by dogs
The four dogs got out of the house by jumping up against the outside storm door and hitting the push bar, which unlatched the door and caused it to open. The dogs then ran out. One of them bit the postal worker who had just made a delivery.
After a neighbour cleaned up the blood on his face, the postal worker continued with the mail route.
There is no evidence that the dogs had the habit of running at people. They were confined to the house unless put out in the fenced back yard or when they were walked on a leash in the neighbourhood.
Was the dog owner at fault here?
When you have made your own decision, check out What the Judge Decided.
WHAT THE JUDGES DECIDED
- The judge awarded damages. While there is a risk in hockey of accidentally being hit with a stick, a deliberate blow with a stick against the face is battery, for which the defendant is liable.
Agar v. Canning, (1965) 54 WWR 302
- The judge found the golf club was liable. The golf balls were interfering with the public's right to drive safely on the highway.
Castle v. St Augustine's Links, (H.C. 1922)
- The judge held that the contractor was negligent and had breached its duty of care to users of the highway by failing to remove the overhanging ice block or by failing to clear the ditch. He held that the Ministry was also liable for the contractor's negligence. The government has a duty to maintain the highways in reasonable condition, and cannot pass the duty along to the contractor.
Mochinski v. Trendline Industries Ltd, (1997) 3 SCR 1176
- The Supreme Court of Canada found that the driver did have a duty to tell the boy to put on his seat belt. He had this duty even though the father was there. Under the BC Motor Vehicle Act, drivers have a "duty of care" to ensure that passengers under 16 years of age are wearing their seat belts.
Galaske v. O Donnell, [1994] 1 S.C.R. 670
- Mrs. Martin would have to sue the manufacturer. The retailer is not liable because the organizers picked up the fireworks in a sealed package. The manufacturer is liable because they have a duty to make sure that the fireworks are manufactured correctly and fire according to the instructions.
Martin v. T.W. Hand Fireworks Co. LTD, (1962) 37 DLR (2d) 455
- In this case, the judge decided that the owners could not have foreseen that the dogs, or any one of them, could have hit the storm door bar with sufficient force to open the door and get out. They had taken reasonable care to control the dogs and were therefore not liable.
In A.G. v. Dingle, [2000] N.S.R.(2d), Nova Scotia Court of Appeal
Web links
Here are some web sites that will help you find out more about the common law.
CANADA
Access to Justice Network
Extensive array of Canadian legal information for the general public, much of it arranged by subject. ACJNet is a joint venture of several governments, universities and nonprofit agencies.
Source: Access to Justice Network.
URL: http://www.acjnet.org/splash/default.aspx
Best Guide to Canadian Legal Research
Thorough guide to performing legal research. Includes instructions for using various legal databases, as well as accessing federal and provincial statutes online.
Source: Catherine P. Best.
URL: http://legalresearch.org/
CanadaLegal.com
Search engine with extensive links to Canadian legal web sites.
Source: CanadaLegal.com.
URL: http://www.canadalegal.com/
Guide to Legal Research
Although written for law school students, this is a concise online guide to legal research. It includes an overview of important Canadian, British and American legal resources, and has many links to Canadian and international legal web sites.
Source: University of Toronto. Bora Laskin Law Library.
URL: http://www.law-lib.utoronto.ca/resguide/toc.html
Juris Canada: The Legal Education Network
Provides extensive links for researching Canadian legal information. Includes a search engine. Also features the Canadian Law Locator, which facilitates full text retrieval and searching of Canadian and provincial case law, legislation, major online legal databases and other key legal research tools. Primary audience is lawyers.
Source: Jurist Canada.
URL: http://jurist.law.utoronto.ca/
Legal Canadian FAQs: National
Provides answers to frequently asked questions about various national laws in plain English. Written for general public and easy to understand.
Source: Legal Studies Program, Faculty of Extension. University of Alberta.
URL: http://www.law-faqs.org/nat.htm
BRITISH COLUMBIA
Dial a Law
Transcripts of taped phone messages providing free information on specific legal issues. Topics include family law, wills and estates, criminal law, housing, and consumer law. Site is frequently updated as more transcripts are added. Instructions on how to access and use the phone service are provided.
Source: Canadian Bar Association, BC Branch.
URL: http://www.cba.org/BC/Public_Media/dal/default.aspx
Duhaime's Canadian Legal Information Centre
Extensive links to legal dictionaries, federal and provincial court decisions and legislation. Friendly and entertaining site for non-lawyers.
Source: Lloyd Duhaime, a Victoria, BC lawyer.
URL: http://www.duhaime.org
The Electronic Law Library - ELL
Extensive links to legal information and useful updates with a BC focus. Easy-to-use site; friendly to non-lawyers.
Source: Legal Resource Centre, Legal Services Society
URL: http://www.bcpl.gov.bc.ca/ell
Legal Links
Good selection of links to legal resources with a BC focus. Written for lawyers, but clear and easy to follow.
Source: Continuing Legal Education Society of British Columbia (CLE BC).
URL: http://www.cle.bc.ca/links/pages/index.html
UBC Law Students' Legal Advice Program
Web site of the UBC Law Students' Legal Advice Program (LSLAP). Includes links to the complete text of the LSLAP Manual, as well as links to government, courts and other legal organizations. Friendly information for non-lawyers. Clear and easy to use.
Source: University of British Columbia. Law Students' Legal Advice Program.
URL: http://www.lslap.bc.ca/main/
Acknowledgements
The People’s Law School thanks the Department of Justice Canada for funding the writing and presentation on the web of this document.
Research & writing: Gayla Reid
Research, editing and production: Gordon Hardy
Legal review: Jennifer Poon
The People’s Law School
is a nonprofit society whose purpose is
to provide British Columbians with reliable information
about your rights and responsibilities
under the law.