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| A legal term that has several meanings depending upon the context. Most often it means that part of the law that is made by judges in the courts as opposed to the law passed by Parliament, provincial legislatures, or local governments.
Most contract law is governed by common law; there are only a few statutes that relate directly to what makes a valid and binding contract. |
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| Means literally “beyond the powers.” Its most frequent legal connotation is found in connection with statutes passed by legislatures or the decisions made by administrative agencies that are found by the courts to be unenforceable for some reason.
The Supreme Court of Canada found the Alberta statute to be ultra vires in that it went beyond the powers granted to the provincial governments under s. 92 of the Constitution Act, 1867. |
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| Another term for any act passed by a legislative body such as Parliament in Ottawa or a provincial legislature (or local governments). It also includes all regulations passed under the umbrella of any act. Statutes will always override common law providing they are not ultra vires the legislative body that passed them and do not contravene the Charter of Rights and Freedoms.
The statute dealing with the issue of when title to goods passes from the seller to the buyer in the absence of agreement to the contrary is called the Sale of Goods Act. |
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| The fundamental or basic law of a country; the ground rules by which a state’s political, legal and governmental structure is ordered. In Canada, the written constitution consists of the Constitution Act, 1867 and the Constitution Act, 1982.
The constitution of Canada allows for a federal Parliament consisting of a House of Commons and a Senate and a Supreme Court, all of which are located in Ottawa. |
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| The rights listed in ss. 3 to 5 of the Charter of Rights and Freedoms. These rights can not be affected by the notwithstanding clause, and so Canadians are guaranteed that they will always be able to vote in a free election, both provincially and federally, at least once every five years.
All Canadians enjoy the democratic right of voting in an election, whether it is federal or provincial. |
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| The rights listed in s. 15 of the Charter of Rights and Freedoms. These rights are subject to being temporarily suspended under the “nothwithstanding clause” of the Charter, and they can be qualified by the “demonstrably justified” exception of s. 1 of the Charter.
The applicant’s equality rights were infringed when the government office refused to hire her because of her ethnic background. |
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| Means literally “let the decision stand.” This is the doctrine of legal precedent that says that lower courts are bound to follow the previous decisions of higher courts within the same jurisdiction. However, any court decision can be overruled by the Supreme Court of Canada or by the provincial or federal legislatures, as the case may be, providing the latter are acting within their jurisdiction and are not contravening the Charter of Rights and Freedoms.
Because of stare decisis the Provincial Court judge had no choice but to apply the decision made ten years earlier by the Court of Appeal. |
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| The basic foundational concept of parliamentary democracy which insists that everyone is equal before the law; no one is above the law; and everything that is done by governments and government agencies must be legal.
Because of the Rule of Law, the man was prosecuted for shoplifting; the fact he was also the mayor of the municipality did not make any difference. |
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| The legal principle that in matters of law, the legislative branch of government takes precedence over the judicial or administrative branches. This was true of Canada’s legal system until 1982 when it was replaced by judicial supremacy: now, the Supreme Court of Canada is the last word on all legal matters.
Because of parliamentary supremacy, the Parliament in Ottawa prior to 1982 could technically pass an act that contravened fundamental freedoms or legal rights. |
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| Of or pertaining to that branch of government that administers or executes (carries out) the laws of the land. In Canada at the federal government level it consists of the Prime Minister and his Cabinet and all the government ministries (the civil service), including federal administrative agencies. At the provincial government it consists of the Premier and her Cabinet and all the government ministries, including provincial administrative agencies. It also includes the Queen and her representatives at both levels of government.
As he was part of the executive branch of government, the Premier did not himself have the authority to make new laws with respect to the leaky condominiums problem. |
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| A form of government common to Canada and several other countriesin which there are two levels of government: a central (federal) government with jurisdiction over matters of national importance, and several provincial or state governments with jurisdiction over matters of more local significance.
The United Kingdom does not have a federal system of government in that the Parliament in London has jurisdiction over all aspects of law with the exception of matters that it has delegated to local governments and to Scotland and Wales. |
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| This is contained in s. 33(1) of the Charter of Rights and Freedoms, which says that Parliament or a provincial legislature can pass an act that can be declared to operate “notwithstanding” certain provisions of the Charter of Rights. Since 1982 it has rarely been invoked by any legislative branch of government.
After the Supreme Court of Canada ruled that Alberta’s human rights legislation had to include “sexual orientation” as another prohibited ground for discrimination, many Albertans urged Premier Ralph Klein to invoke the notwithstanding clause, but he chose not to do so. |
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| Of or pertaining to that branch of government that passes legislation (statutes or acts) including the Parliament in Ottawa at the federal level, and the ten legislatures and any municipal council at the provincial level. In Canada the political party that controls the legislative branch of government almost always controls the executive branch as well.
The legislative branch of government is responsible for the passing of literally thousands of statutes at both provincial and federal levels. |
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| The rights listed in ss. 7 to 14 of the Charter of Rights and Freedoms. These primarily relate to the rights of citizens upon being arrested for committing a crime. These rights are subject to being temporarily suspended under the “notwithstanding clause” of the Charter, and they can be qualified by the “demonstrably justified” exception of s.1 of the Charter.
The legal right of habeas corpus, being brought to a judge within a reasonable time after being arrested, has in fact been recognized in the English common law for over eight hundred years. |
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| In contract law, a breach that is so major that it is considered to have gone to the very root of the agreement. Even fundamental breaches can be covered by exclusion clauses provided the latter are stated clearly and the parties are dealing with each other at arm’s length.
A fundamental breach occurred in the contract when the plaintiff discovered that he could not operate the backhoe machine at all; he was entitled to rescission of the contract. |
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| Of or pertaining to that branch of government that interprets statute law or else which creates new law, either in the absence of any statute law or where it finds statute law to be ultra vires the Constitution Act, 1867 or contrary to the Charter of Rights and Freedoms.
As there is no statute in British Columbia relating to torts in general, by and large the judicial branch of government has decided the law in this area. |
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| The phenomenon in which judges are perceived to go beyond merely interpreting the law and intruding into the area of the legislative branch of government. It is a controversial matter both with respect to whether it is taking place and whether it achieves positive outcomes.
The Alberta Court of Queen’s Bench's decision to read into that province’s human rights legislation that gays and lesbians are also protected from discrimination, despite the fact the act made no reference to “sexual orientation,” was alleged to be an errant example of judicial activism. |
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