Module 1.01ACJ101

Seneca Association of Canadian Court

Administrators

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

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

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

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

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

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?

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

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

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

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

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

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

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

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)

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

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

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

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

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

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

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”

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”

Chancellor became too busy with petitions

Created his own court system Almost all were clergymen, all using

“good conscience” as a guide

Named chancellor in 1529 Lawyer, trained in common law Disliked inconsistent rulings Choose lawyers to act as chancery

judges Imposed “doctrines” of equity

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 law4. Look to reasonable expectations of

parties5. If you want your remedy, move fast

—doctrine of laches

Damages Return of property

Injunction Specific

performance Accounting Constructive trusts Rectification Equitable estoppel Bona fide purchaser

for value without notice

Rescission

Mareva order or Mareva injunction

Anton Pillar order

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

Sale of cottage Purchaser gives

deposit Seller backs out At common law

purchaser only gets deposit and reasonable expenses

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

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

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

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

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.

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.

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.”

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.

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

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

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

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

CodeWrittenExplicitNo deference to appeal courts or previous cases

Common law“Unwritten”Hidden inside previous casesGreat deference to appellate decisionsSome deference paid to other cases

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