Common-law Канада

Common-law Канада

Действующая в Канаде система «common law» предполагает, что все суды придерживаются решений всех вышестоящих учреждений в судебной пирамиде, на вершине которой находится Верховный суд Канады. Именно он имеет право обязывать все суды страны принимать одно решение.

Все граждане Канады имеют в стране равный доступ к системе правосудия.

Более подробную информацию можно получить на официальном сайте министерства юстиции Канады:

Что касается трудового законодательства, то деятельность государственных предприятий в Канаде регулируется законом «Canadian Human Rights Act», деятельность частных фирм — законом «Employment Standards Act». Согласно законам Канады, любой человек имеет право на 30-минутный перерыв после каждых 5-ти часов работы. Продолжительность рабочего дня может составлять от 8 до 12 часов, однако совокупное колличество рабочих часов должно быть не более 48 часов в неделю. За сверхурочную работу предполагается доплата в 1,5 от ставки.

На сегодняшний день, минимальная почасовя зарплата в Канаде составляет около 6,85 доллара за час (не считая различных отчислений в социальные фонды). Отпуск предоставляется ежегодно в размерез двух недель и более, в зависимости от количества лет работы сотрудника на предприятии.

Возраст выхода в Канаде на пенсию согласно местным законам составляет 65 лет (и более). Пенсионеры Канады могут расчитывать на помощь со стороны государства, так как в стране предполагается «пенсия по старости (Old Age security pension) и гарантированный доход (Guaranteed Income Supplement).

Canadian Law — Canada FAQ

In most countries, ruled or settled by the British, the so-called Common or traditional law is applied. The Civil Code was also known as the Napoleon Code and initially covered only private law matters: relationships between persons (marriage, divorce, parentage, adoption); legal attributes of individuals such as age of majority and name; property, e.g. land boundaries and possessions; and institutional bodies that administer and govern these relationships. Today, Canadian law in all provinces and territories except for Quebec is based on Common law.

The Common law system has its origins in the decisions of the English courts since the Norman Conquest age. These precedents are used to settle future similar cases.

Until 1949, all developments and decisions in English law were incorporated into the Canadian Common law. The system was influenced by laws such as the Act of Settlement, Magna Carta, the Petition of Right, and the Bill of Right, among others. Before the Confederation, Common law was followed by the provinces Prince Edward Island, Newfoundland, New Brunswick and Nova Scotia. Only Quebec, being a French colony, used the civil law system. After the conquest, civil law was guaranteed with the Qu�bec Act from 1774. In 1791, the Constitutional Act divided the province of Qu�bec into Upper and Lower Canada. Lower Canada retained its civil law system whereas Upper Canada adopted Common law.

According to the British tradition, the Parliament has been responsible for the protection of individual rights, and this rule was followed in Canada until the passing of the Constitution Act in 1982 which set down individual rights along American lines.

Similar to other countries that adopted the common law tradition, the Canadian legal system adheres to the principle by which judges must take into consideration the precedents established by prior decisions (the stare decisis doctrine). Lower courts are obliged to respect the rulings of higher level courts which are binding to them. In that way, all lower courts in British Columbia for example, are bound by the provincial Court of Appeal�s decisions, but not by decisions of courts from another province. The decisions of the highest court of a province (Court of Appeal) are mostly considered persuasive. The only court authorized to bind all Canadian courts is the Supreme Court of Canada. In this manner, some of the busier courts, as for instance the Ontario Court of Appeal, are often referred to for guidance on local law matters outside the territory of the province (particularly with regard to criminal law).

There are some legal issues with no precedents in the Canadian legal system, requiring that judges make reference to a foreign legal authority. In such instances, decisions of American and English courts are commonly utilized. Often, the House of Lords as well as the English Court of Appeal are cited and followed as persuasive authorities. For privacy and constitutional law issues instead, US courts� decisions are preferred due to the much extensive jurisprudence body in US law for these areas, compared to English law. In addition, some rulings from courts of the Commonwealth nations are treated as persuasive point of reference in Canada.


Common Law Separation Canada FAQs

“What is a common law relationship?”

A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required.

“how long does a couple have to live together to be common law?”

It depends on whether the issue is federal or provincial, and in what province you live.
Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation.
Property division is determined by provincial law and each province has its own definition of what a common law spouse is.

For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence.

In British Columbia family law, you must cohabit 2 years in a marriage-like relationship.

Under New Brunswick family law, you must live together continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support, or, where the couple lives together for one year and has a child together.

In Nova Scotia, you must live together for two years.

Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.

“How do the courts determine what cohabitation is?”

Generally, a judge will look at the lifestyle of the parties in a common law relationship.
The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors:

1. Shelter – did the unmarried parties share accommodation;

2. Sexual and Personal Behaviour – did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others;

3. Services – did the common law couple share the traditional functions of a family;

4. Social – did the unmarried couple portray themselves as a couple to the outside world;

5. Societal – how were the common law partners treated by their community;

6. Economic Support – were the unmarried parties economically interdependent; and

7. Children – did the unmarried couple see children as part of their home and interact parentally with each others’ children.

“Can dating or an affair be considered cohabitation?”

Sometimes, yes. It really depends on the facts of the case.
For instance in the Canadian case of Thauvette v Malvon, the common law parties had a 3-year relationship.
During this time, they maintained separate residences.
However, the man helped the woman purchase her home, and spent 4 or 5 nights per week at her home.
The court found that the man and woman were cohabiting.

“At one time during the 3 years my partner and I were in a relationship, we broke up for a few months.
Are we still considered to have cohabited for 3 years?”

Maybe not – it depends on the province. The Ontario Family Law Act requires 3 years of CONTINUOUS cohabitation for there to be a common law relatioship.
An interruption in the 3 years can destroy that continuity.
It really depends on the particular circumstances of the breakup.
If you simply needed time apart and were trying to work things out, then a court will probably find that your relationship was continuous.
If there was an intention by either party to end the relationship permanently at the time of the breakup, then a court will probably find that your relationship was NOT continuous.

In British Columbia, there is no requirement of continuity.

“If I live with my partner for long enough, will we be considered married?”

No. There’s no such thing as common law marriage in Canada.

“If I’m common law Canada, do I need to obtain a divorce?”

No. Your relationship is over when one of you says it’s over.

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“I’m living common law in Canada. Is there any way I can have the same benefits as a married person?”

Yes, by entering into a cohabitation agreement. Click here to learn how to PROTECT YOURSELF.

Married, Common-law or Conjugal | Spousal Sponsorship Canada

Family reunification is the second largest category of Canadian immigration, but there are only a few types of family members who are eligible for sponsorship. One of them is your spouse or partner. So what kinds of relationships are eligible for Canadian spousal sponsorship?

There are three types of relationships that are considered valid for spousal sponsorship in Canada:

MARRIED: Married couples (spouses) are legally married. If the marriage took place outside Canada, it must be valid both under local laws and under Canadian law.

COMMON-LAW: A common-law partner is someone you have been living with for at least a year, while in a committed relationship.

CONJUGAL: A conjugal partner is someone you have been in a committed relationship with for at least a year, but are not able to live with.

All three types of relationships apply to either opposite- or same-sex relationships. Engagements are not considered valid for Canadian sponsorship purposes

Like with all categories of Canadian immigration, the final decision on whether or not to accept an application comes down to the visa officer reviewing the file. There is no one document that will definitively prove your relationship is genuine. It is up to you to provide sufficient proof of your relationship.

Marriage and common-law relationships are usually simpler to prove, since you must have a history of living together or be legally married. If you are trying to sponsor your conjugal partner, it can sometimes be more difficult. Usually, you have to demonstrate that there was a significant barrier preventing you from living together, such as immigration barriers, religious reasons, or sexual orientation.

Pictures together, emails or messages sent to each other, joint bank account statements, or joint residential leases can all help your application. The most important thing, though, is to prove that your relationship is genuine.

Letters to each other about how much you love each other are fine, but it’s often the smaller things that are more convincing. Everyday messages about weekend plans or household chores are much more difficult to fake, and are therefore likely to be more valuable to the officer reviewing your file. Showing a ‘logical progression’ of your relationship is also valuable.

At the end of the day, visa officers are just people. They are not ‘out to get you’, but they are tasked with protecting Canada’s immigration system from people who would abuse it. If you are in a genuine, loving relationship with your spouse or partner, providing as much proof as possible is your best bet.

Differentiating common law from marriage in family law

Courts are increasingly recognizing property rights for common law couples, but legislation has yet to catch up

A half-decade and more ago, family formation took a traditional pattern: A couple legally married, had children and the wife typically stayed home to care for home, husband and offspring, sometimes sacrificing a career she may have had prior to marriage, and the marriage would last decades.

Today, legal marriage is less common and divorce rates are much higher, couples often remain childless and a woman may continue a career in which she may earn more than her spouse, whether legal or common law.

Yet when people legally marry, they can trust that assets accumulated during their marriage will be divided equally if the marriage dissolves. That’s not the case for common law couples in most of Canada; however, even where it is not legislated, courts may be increasingly recognizing that property rights apply to cohabitants.

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But will the legislation follow suit?

Property division on dissolution of common law marriage has “been an issue for decades,” says Robert Leckey, dean of the Faculty of Law at McGill University. A small handful of provinces — British Columbia, Saskatchewan and Manitoba, along with Nunavut and the Northwest Territories — have changed their legislation to treat common law couples the same as legally married couples on dissolution of the relationship.

“Where that hasn’t been done, courts are adapting the common law rules they work with,” says Leckey. “Sometimes, we have the idea that if the legislature doesn’t act, the law stays static. That’s not happening.”

In the jurisdictions where the law has not been reformed by legislators, “the courts have been gradually changing, with a view to try to mitigate some of the injustice perceived as arising when a couple breaks up after a long cohabitation,” he says.

The Supreme Court of Canada, however, has upheld the distinction between legal marriages and common law unions when deciding on property division and spousal support. In a case commonly referred to as Eric v. Lola (Quebec (Attorney General) v. A, 2013 SCC 5), the Supreme Court decided that the laws as they applied to common law couples did, in fact, violate the Charter, but that the violation could be justified under s. 1.

And in an earlier decision known as Walsh v. Bona (Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83), the Supreme Court ruled that it was not discriminatory for the Nova Scotia Matrimonial Property Act to exclude common law couples from the definition of «spouse.»

In these decisions, “they say, people choose not to get married for a reason,” says Stephen Grant of Grant Crawford Watson LLP in Toronto, who has handled the dissolution of common law as well as legal marriages in his practice. “The courts have been clear that there is a definite distinction between marriage and cohabitation.”

Robert Shawyer of Shawyer Family Law & Mediation in Toronto says the decision in Walsh v. Bono was made prior to more recent Charter cases, and the decision in Eric v. Lola dealt with the Civil Code of Quebec and not other provinces’ property regimes.

He says property regimes in provinces such as Ontario and Alberta would be held to be unconstitutional if challenged, “because, from my reading, [Quebec v. A] applied strictly to Quebec’s civil law system and division of property, which is rules- and statute-based, as opposed to common law jurisdictions” which are rules- and precedent-based.

In her dissenting reasons in Quebec v. A, Justice Rosalie Abella alluded to Walsh v. Bono, which challenged Nova Scotia’s property law division. “She said the problem with that [decision] was that it . . . doesn’t accord with the more updated jurisprudence in regards to how you determine whether something is discriminatory, [and it] conflates the government’s obligation to defend the law under s. 1 with the moving party’s obligation to prove discrimination,” Shawyer says.

“It really does come down to, all things being equal, a moral question, whether or not we are willing to accord the same rights to common law couples as to legally married couples.”

Amendments to the Divorce Act did not include property rights for common law couples, he says, and as a result there is a hodgepodge of property regimes. “If you look internationally, you’ll see that other common law jurisdictions have the same sets of property rights for common law as for married couples.”

Encouragement by the federal government to make property division and spousal support in common law relationships consistent with the regime for married couples “would be helpful. But at the end of the day, what it’s going to require is constitutional challenges.”

But even without legal marriage, a cohabitant can seek money from another under the principle of unjust enrichment, for example, which says that if one party has enriched another and later been impoverished as a result, that party can ask the other to return some of that enrichment. McGill Law’s Leckey has a five-year research grant to look at cohabitation and legal reforms in provinces such as B.C. and Saskatchewan, as well as provinces such as Ontario that have not adapted.

His research takes two strands: common-law bases for making a claim against a former partner for unjust enrichment. In Saskatchewan and B.C., which will take advantage of the new legislation that says property must be divided equally on breakup, Leckey saw “a slight change in profile, a broader range of families accessing the courts and amounts of money given up, but not a revolution.”

Something he found interesting in looking at cases under the new legislation was a new source of dispute: the category of unmarried couple.

“There are a lot more disputes about whether two people were living together in a marriage-like relationship,” he says, “which is the criterion in B.C., or whether they were living in a conjugal relationship, which is a criterion under some of the other provinces’ laws. It’s interesting to see that even when the legislature reforms the law, there will be bases for resisting, and there will be . . . perhaps quite expensive disputes in front of the courts around whether someone’s eligible” for equalizing of assets.

While Quebec has been “a little slower to move” toward adopting new legislation, he says, “what’s interesting is that the legislature may think [that,] by doing nothing, it’s sort of freezing the law.” However, “there’s real pressure, like real people with their stories in front of the courts puts the judges under pressure. Judges perceive a family when people have been living together and raising kids together.” And even recent changes to the province’s civil procedure treat unmarried couples like married couples in terms of family rules and the need to advise mediation, he says.

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Grant doesn’t see Ontario, for one, moving in the direction of the provinces and territories that give the same treatment to legal and common law marriages, although he notes that common law legal principles for dividing property have changed to acknowledge not only unjust enrichment but the concept of “joint family ventures,” in which the contributions of both spouses have resulted in an accumulation of wealth.

“What it comes down to,” Grant says, “is whether you’re recognizing that people don’t get married for a reason, having to do with the economic consequences of marrying; and if you want to respect those rights to not get married and not get into a regime of . . . equalizing of assets, then you’re not going to enact legislation that will make common law the same as married.”

Changing social norms, changing families

13.9% increase in number of common law couples in Canada between 2006 and 2011

3.1% increase in number of married couples in Canada between 2006 and 2011

16.7% of census families were common law couples in 2011

16.3% of census families were lone-parent families in 2011

Fewer children at home

Between 2006 and 2011, couples with children living at home continued to fall as a share of all census families.

39.2% of census families who were couples with children in 2011

44.5% of census ffaamilies who were couples without children in 2011

More than 60% of children born in Quebec are to parents who are not legally married

Common Law

Article by John E.c. Brierley
Published Online February 6, 2006
Last Edited June 27, 2014

Common law, the system of law that evolved from the decisions of the English royal courts of justice since the Norman Conquest (1066).

Common Law

Common law, the system of law that evolved from the decisions of the English royal courts of justice since the Norman Conquest (1066). Today the common law, considered more broadly to include statutes as well as decisions, applies in most English-speaking countries, including all Canadian provinces except Québec.

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4 myths about common-law relationships

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The biggest being that the same rules apply across Canada

A recent ruling in B.C. that grants common-law partners the same fundamental rights as married couples after two years of cohabitation has cast a light on how common-law couples are treated in other provinces.

Webcam live chat

This week on CBC Live Online, host Lauren O’Neil speak with experts about the patchwork of marriage-like designations for common law couples across Canada. Join in on the discussion at 7 p.m. ET Thursday, March 21.

Common-law relationships typically refer to couples that live together in an arrangement akin to marriage, but without an actual ceremony or legal documents.

However, the notion of living «common law» is a complicated one, and its meaning varies greatly across Canada.

Here’s a look at some of the biggest misconceptions about common-law partnerships.

1. Common-law unions are the same across the country.

Legally, common-law relationships fall under provincial jurisdiction, and so what constitutes such a relationship and how it is viewed legally differs greatly from province to province.

The B.C. ruling on March 18 essentially treats common-law partners the same as married couples — under a new definition of «spouse,» common-law couples in B.C. that have lived together for two years now have the same rights and responsibilities as married couples.

In Alberta, common-law relationships are referred to as «adult interdependent partners.» This is deemed a common-law relationship when the couple has lived together for three years or more or has a child and live together.

In Newfoundland, after two years of living together in a conjugal relationship, a couple can be considered common law. In Nova Scotia, a couple must live together for two years before being entitled to any possible spousal support; they would not be permitted to claim property, including a family home or car. In order for unmarried couples to have rights, they can register as being in a «domestic partnership» under the Nova Scotia Vital Statistics Act.

In order for a couple to have common-law standing in Ontario and Manitoba, they must be living together in a conjugal relationship for three years or more, or one year with a child. In Manitoba, the couple could register their common-law relationship at the Vital Statistics Registry.

Ontario Justice Harvey Brownstone said there is no registration in his home province. In fact, as he points out, in Ontario, «common law» is more of a vernacular term.

«There is no such thing as ‘common law’ in Ontario law — that term doesn’t exist,» he said.

Quebec is the only province that does not recognize common-law relationships. The Supreme Court of Canada ruled in January 2013 that provinces had the right to decide if common law couples should get the same rights as married couples, and so has allowed Quebec to continue excluding common-law-style relationships from being recognized no matter how long two people have lived together.

«There are no legal perks in terms of the legislation,» said Robert Teitelbaum, a Quebec lawyer specializing in family law.

«Perks like sharing in the Quebec pension plan are possible, or certain contracts for insurance purposes about beneficiaries… But that is independent of actual provincial legislation.»

2. In the event of a breakup, assets are divvied up.

Living together in a relationship similar to marriage may make you «common law» in most provinces, but it does nothing with regards to the division of property acquired during the relationship unless a cohabitation agreement or some other form of legal agreement was made between the couple.

In Ontario, «There’s no such thing as matrimonial property in these relationships,» said Justice Brownstone. «We use the law of constructed trust to protect people’s property rights, so if you’ve been living common law and you’ve been contributing to a home that the other party owns – either because you paid for renovations or because you were the one maintaining it – you can make a claim for property.»

Brownstone added that this is not in any way based on the same kind of principles as being married. Rather, he said, «It’s based on the law of resulting trust. We use trust law to protect common law property rights.»

This is why the recent B.C. ruling is unique, because now, couples who have been living together for two years are entitled to a 50/50 split of shared debts and assets — excluding any pre-relationship property or inheritances.

Quebec’s lack of recognition of common-law couples means that the there is less confusion when it comes to the division of property – what one person owns, they keep.

«If someone contributes towards someone else’s property, like anyone else, they can make a claim – but it has nothing to do with the fact they lived together as a couple,» Teitelbaum said.

Essentially this could be the case with roommates as much as couples when it comes to civil law.

3. Unless you were married, you are not entitled to spousal support in the event of a break-up.

It’s unlikely that a common-law couple that decides to split will deal with spousal support, but it is possible, depending upon other factors.

Much like in marriage, spousal support is not automatic, but is given only when one party is seen as entitled to it.

According to Justice Brownstone, spousal support for Ontario common-law couples is possible if there were «economic consequences» to the break-up. If one person in the relationship supported the other person regularly – or, for example, one person had to give up their career in order to care for a child — then they could be entitled to spousal support.

«If you live together three years and don’t have kids, you are treated as a spouse for support purposes,» said Brownstone, but stressed that «spousal support is not that common.»

In Alberta, an adult interdependent partner can bring a claim for spousal support, and the same can be done for common-law couples in Newfoundland. Under New Brunswick’s Family Services Act, spousal support is also possible for common-law couples.

4. Children do not change or affect the common-law standing.

The presence of children can significantly affect the way a common-law relationship is viewed in the eyes of the law. When a cohabiting couple has a child, they are often viewed as common law years before a childless couple would be.

Even in Quebec, where there are virtually no benefits for common-law couples, children are part of the few «extenuating circumstances.»

According to Teitelbaum, if two people in Quebec live together and have a child, but only one person owns the house, the other can make a claim for partial use of the house during initial separation — but only for the sake of the child.

Common Law in Canada?

I have been living with my boyfriend in Canada for over a year. I am Canadian, he is British and in Canada on a work visa. We live in a house that is solely in his name. We have no joint banking, loans, debts, bills, or anything. 100% of our finances/taxes/bills are seperate. My father supports me financially while I go to school, but my boyfriend pays the bills for the housing. I don’t really want to be considered common law, but am I anyway?

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3 Answers

There’s no overarching definition of ‘common law spouse’ in Canada. Not only does it vary by Province, but it varies by purpose. For the purpose of determining whether or not there might be support obligations, there’s one test (in Ontario, that’s cohabiting for three years + or cohabiting and having a child together); for welfare purposes, it’s a different test; for tax purposes, it’s a different test. etc.

Also bear in mind that, in Canada, there’s a big difference between common law marriage and legal marriage. For example, in Ontario, a legal spouse has a vested entitlement in the matrimonial home, even if it’s completely in the other spouse’s name, whereas common law spouses. don’t. At best, a common law spouse is occasionally able to assert an equitable claim against the house based on unjust enrichment. There’s no entitlement for common law spouses to equalize assets, though there can be support obligations, depending on the circumstances.

Common-law Канада

Recently I was reading that Justice Cory Gilmore, of the Ontario Superior Court, may have set precedent when he declared a power to strike provisions from a will because of the deceased person’s racist beliefs, even if the will contained no racist language. This got me thinking about whether this precedent could soon make its way to the courtrooms of England and Wales.

But first let’s briefly explore how Canada came into being.

A spot of history

Canada has not had the easiest of journeys to becoming the country we know today. It has been the site of fierce battles, both on the fields and in the courtroom, being fought over by the UK, France and the United States in claims over its territory.

The modern territory of Canada is the result of the Treaty of Paris in 1763, which saw Canada and most of New France ceded to Britain and the Treaty of Paris 1783 which ceded the territories south of the Great Lakes to the United States.

The bi-jurist legal system came with the Quebec Act 1774 that re-established the French language and civil law in the new Province of Quebec, and the British North America Act 1867 (BNAA) that established Canada was to have a constitution “similar in Principle to that of the United Kingdom”.

To this day it remains a Commonwealth country, one that has a distinct culture and heritage derived from outside influences and those of the First Nations, Inuits and Métis.

This makes its case law all the more interesting to read, and also important for the development of the common law and therefore practitioners in places such as the Caribbean, England and Australia, among other Commonwealth countries.

Cases in point

“Pollution is always unlawful and, in itself, constitutes a nuisance.” So said the court in Groat v. Edmonton (City) [1928] S.C.R. 522, an important case recognising that common law actions such as nuisance can be tools of environmental protection.

Groat, the owner of a downstream riparian area, sued the City of Alberta in nuisance for the pollution to a stream caused by discharge from the municipal storm sewer. While a riparian proprietor has a right to drain his or her land, it may not be exercised to the “injury and damage of the riparian proprietor below” and is no defence to an action for polluting the water in a stream. Groat succeeded and subsequently the City had to abate the nuisance within two years.

Henrietta Muir Edwards and Others v Attorney-General for Canada and Others [1930] 1 A.C. 124 is perhaps one of the most important triumphs in Canadian case law for female equality.

The case was brought by the “Famous Five”, a collection of five female women’s rights activists and reformers, who fought to have women recognised as “persons” under section 24 of the British North America Act 1867 (BNAA).

Absurd as it seems nowadays, one of the litigants, Emily Murphy, was unable to be a candidate for a seat in the Senate as she was not considered a person. Then Prime Minister, Sir Robert Borden, claimed that the BNAA using “persons” as the plural, with “he” referring to the singular, restricted its meaning to members of the male sex only.

In the Supreme Court, as Edwards v AG [1928] S.C.R. 276, the Justices upheld the law as it stood that women were not eligible to be senators.

Influence of the Privy Council

The Judicial Committee of the Privy Council did not approve of the decision in Edwards and overturned the decision, in turn making Canadian legal history.

They considered that the Act’s provisions had to be given a liberal interpretation, requiring the Act to be read in light of developments within the Canadian legislature, the so-called “living tree doctrine” of constitutional interpretation.

While women had not been expressly excluded from public office, the term “persons” was imputed to mean “men”, hence the use of “he” in the singular. The custom of excluding women from public office could however become tradition, remaining unchallenged long after it had lost its original purpose, but it did not have to be.

As Lord Sankey LC said in his decision “[t]he exclusion of women from all public offices is a relic of days more barbarous than ours”, so “to those who ask why the word [“persons”] should include females the obvious answer is why should it not?”.

A fitting end to the case came when Emily Murphy defied expectations and became the first female magistrate in Canada. This was followed, less than a year later, with Cairine Reay Mackay Wilson’s appointment to the Senate—the first woman to achieve this.

More recent cases

Another leading decision comes in the form of Quebec v Blaikie (No. 1) [1979] 2 S.C.R. on the language rights in the Constitution Act 1867.

Quebec’s Charter of the French Language, mandating that provincial laws must only be enacted in French, violated section 133 of the Act. The Supreme Court held that the Acts of the Parliament of Canada and of the legislature of Quebec “shall be printed and published” in English and French.

The Charter declaring that “only the French text of the statutes and regulations is official”, excluding those English versions that were printed and published by the civil administration, was incompatible with the Court’s finding that all subordinate statutes are regarded as being laws and thus both the English and French versions have official status. The restrictions were ultra vires the Legislative Assembly of Quebec.

In another case on culture, the appellants in Mississaugas of Scugog Island First Nation v National Automobile, Aerospace, Transportation and General Workers Union of Canada and Others (AG for Canada and AG for Ontario intervening) [2007] ONCA 814 relied on claims to right for self-government.

The appellants claimed that under its aboriginal and treaty rights, confirmed in section 35 of the Constitution Act 1982, it could create its own labour code for its union and therefore displace the Ontario Labour Relations Act that applied to the workers.

In its decision the court found (i) no evidence of aboriginal practice, custom or tradition supporting the right to enact a labour relations code, (ii) even if the court were to accept the characterisation of the right as “an aboriginal practice to regulate work activities and access to aboriginal lands” it could not be said to be integral to their distinctive culture, and finally (iii) they failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim.

Although the appeal was dismissed, the question the court had to answer, as to whether Mississaugas had the legal right to enact its own code of labour law to govern collective bargaining in respect of a Casino owned by them on reserved lands, was important as it is rather rare for cases to be brought on claims to aboriginal rights to self-government.


Without the influence of Canadian law, it is worth contemplating where we would be with the development of the common law. The same could be said for Scots law too, given the importance of Donoghue v Stevenson [1932] UKHL 100 and other cases from Scotland. The common law is reliant on the decisions of courts around the Commonwealth in order for it to flourish and grow. This means that the law in Australia, for example, can be persuasive in England and Wales. As has been the case with decisions of the Judicial Committee of the Privy Council (JCPC) on appeal from Australian (or other domestic Commonwealth) courts, such as the famous Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound) (No. 2) [1967] 1 AC 617 on the reasonable man and the test for duty of care.

The vanguard of the common law, the JCPC was (and still is) a rather controversial body, to say the least. Undoubtedly it has brought uniformity to the application of the common law in the countries of the Commonwealth’s legal systems, it is just unfortunate that this can appear to be rather arbitrary way at times.

Or the decision before the Ontario Superior Court of Justice, one of the busiest trial courts in the world, could be used before judges in other common law jurisdictions. And that is the beauty of this interconnected system of laws. It encourages some degree of uniformity across a plethora of countries that have adopted a certain model of law.

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