CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
Lawson Lundell LLP Suite 1600 Cathedral Place 925 West Georgia Street Vancouver British Columbia V6C 3L2 Canada Tel: +1 604 685 3456 Fax: +1 604 669 1620 Email: inquiries@lawsonlundell.com Web: www.lawsonlundell.com
1. General 1.1 General Characteristics of the Legal System In nine provinces and the three territories of Canada, the English common law system prevails, while the province of Quebec adopted the French civil law sys- tem. Canada’s legal landscape is also influenced by Aboriginal and treaty rights. Canada is a parliamentary democracy based upon the British Westminster style of government. Canada has two constitutional documents: the Constitution Act, 1867 and the Constitution Act, 1982. The Constitution Act, 1867 is the foundational document of Canada and contains the division of legislative powers between the levels of government. The Constitution Act, 1982 con- tains the Charter of Rights and Freedoms. Canada has two levels of government: the federal government and provincial (or territorial) governments. Each level may pass statutes and regulations within their jurisdictional limits. The provincial government has also delegated authority to municipal govern- ments to make their own laws of a local nature. Since the common law system is the most prevalent legal system in Canada, the discussion regarding litigation practices and procedures will focus on the common law jurisdictions. The Canadian common law system follows the adver- sarial model of adjudication. At first instance, both sides present their evidence and arguments to an
impartial judge who decides the issues. Appeals are heard before a panel of judges and are typically limited to the record of the lower court. 1.2 Court System The Canadian court system consists of two divisions: • the federal courts, which have jurisdiction over cer- tain limited subject matters such as immigration, tax, military matters and intellectual property; and • the provincial courts, which may have several trial levels, including superior courts and provincial courts. The superior courts have inherent juris- diction and hear the vast majority of disputes in Canada, including commercial, criminal and family matters. Provincial courts have limits on the types of commercial matters heard or relief given. Both systems also have appellate courts. The Supreme Court of Canada is the highest court in Canada and the court of last resort in both sys- tems. Appeals of commercial matters are generally only permitted with leave and usually involve an issue of national importance. The superior and appellate courts also have jurisdic- tion over administrative boards and tribunals, either by way of statutory appeal or judicial review. The discussion in this guide will focus on superior court practice and, where requested, provincial appel- late courts, as most commercial matters in Canada are litigated in these courts.
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