Navigating the legal system

Certainly the most elemental matter in providing any answer is first to define the question. One might for example question why we have a legal system. The question is not as preposterous as initially appears. Lawlessness is a lack of “Law” in any of the various senses of that word. Indeed there is a philosophy of anarchism – “a social philosophy that rejects authoritarian government and maintains that voluntary institutions are best suited to express man’s natural social tendencies.” George Woodcock “Anarchism” at The Encyclopedia of Philosophy; further, “anarchists are opposed to irrational (e.g., illegitimate) authority, in other words, hierarchy — hierarchy being the institutionalisation of authority within a society”; and, “That is why Anarchy, when it works to destroy authority in all its aspects, when it demands the abrogation of laws and the abolition of the mechanism that serves to impose them, when it refuses all hierarchical organisation and preaches free agreement — at the same time strives to maintain and enlarge the precious kernel of social customs without which no human or animal society can exist.” Peter Kropotkin, Anarchism: its philosophy and idea.

Aside from the philosophical debate about whether our society should be governed by laws or whence those law originate or whether those laws are merely instruments of an oligarchy, I am taking it as accepted on balance that laws provide for most people key features which are desirable: standards, predictability and models. Laws seek to avoid a random universe, “Having no definite aim or purpose; not sent or guided in a particular direction; made, done, occurring, etc., without method or conscious choice; haphazard.” There is in any event often ample room for interpretation of almost any law to accommodate the ambition of the skilful proponent. That is where the training of a lawyer can be an advantage.  Without going into the detail, I am reminded of the then astonishing observation of Lord Alfred Thompson Denning, Master of the Rolls, that “a bastard is a child”.

There are two ways to get down a river: either you know where to go or where not to go.  This summary examination of the legal system combines a bit of both. It deals primarily with what is traditionally characterized as business law – contracts, property, insurance, etc.  It does not deal with criminal law or litigious matters except in the most atmospheric sense.

Having practiced law in the Province of Ontario for thirty-nine years (all but two of which have been in Almonte), I am afforded by my antiquity the privilege to provide an abstract view of the subject. I would like to share with you what upon reflection I consider to be the principles of law, those over-riding and distilled theses from which our more particular laws derive. It is a thorny question because so much of our legal system is the synthesis of many resources, religion, colonial history (including the American revolutionary experience), case law and even less identifiable sources such as our sense of fair play, our openness to change and even our view of the differences (if any) between the sexes. These fundamental principles guide not only the judiciary but also the members of society in legal interaction.

The so-called natural laws or products of the collective conscience must be accepted as peculiar to our Province because it is a gross mistake to assume that such principles are the same for every community, though obviously the Canadian vernacular is similar as a whole, but most likely quite dissimilar to the African or Asian model for example. Indeed any comparative analysis, whether of law or religion, is guaranteed to illustrate differences which at times are so startling as to erode the very foundation upon which our own beliefs are purportedly based. The reason for this is that we suddenly come face to face with the realization that our laws are not, as much as we might have wished to think, a priori (independent of experience) or universal; rather they are a posteriori, products of our culture which is why our legal principles are of limited geographic application. Howsoever these principles arise, they nonetheless exist, and for our purposes they arise from what in this Province at least is called the “Common Law” (itself a healthy republican starting point, one of which no doubt the ancient Romans would have approved). Let me add that these principles should not be confused with the constitutional division of powers and what the Americans in particular are fond of viewing as entrenched rights.

The burdens imposed on the individual must not exceed what is necessary to achieve their objective. This principle nicely covers for example things like taxation.

Legal Certainty
One must define the legal entity with whom or which one is dealing, whether a natural person (including a partnership or other commercial construct such as a joint venture) or a corporation. There are no other recognized legal entities. The practical upshot of this principle is that if you are dealing with a corporation your remedies for default may be limited to what is in the account of the corporation, not that that of its principals however well-heeled.

Equal Treatment or Non-discrimination
This speaks for itself. We have long surpassed the once revolutionary legislation of the Family Law Reform Act which adopted the then entirely new concept of “equalization of assets”. It is a hot topic these days, having particular application to school bullying, variations of the meaning of marriage and even grass-roots considerations of whether girls can play on boys’ hockey teams or physically disabled athletes can compete in the able-bodied Olympics.

You Cannot Do Indirectly What You Cannot Do Directly
This principle is one which trumps a lot of otherwise clever manipulations in law. The attempt to defeat restrictions on the severance of land by granting the buyer a lease rather than a deed would be an example.

He Who is Delegated Cannot Delegate Further
If someone gives you the right to act on their behalf, that does not necessarily mean that you are entitled to give that right to someone else. The legal maxim is “Delegatus non potest delegare“.

You Cannot Give What You Do Not Have
This seemingly empty assertion (much like “a bachelor is an unmarried man”) does however convey more than a mere axiom or self-evident truth. Particularly in the context of contracts, this principle has especial application if one party promises something which for one reason or another is out of his control (for example, guaranteeing the consent of a lender or landlord who are not parties to the contract). This principle has achieved such universal recognition that it is captured in the legal maxim “Nemo dat quod non habet“.

The Law Does Not Concern Itself With Trivialities
This is another of those maxims which is as well captured in a Latin phrase “De minimis nor curat lex“. While it might be thought that the law concerns itself with hair-splitting only, this principle prevents the parties from being consumed by relatively unimportant matters, whether spelling mistakes, obvious errors of identification, etc. This however does not relieve parties from strict compliance with statutory formalities (for example that a Will must be in writing).

Fundamental Breach
If performance is utterly substandard, the injured party is relieved from his obligations.

Substantial Performance
This is the flip-side of Fundamental Breach in that it prevents the injured party from taking unfair advantage of another whose breach occurs after a large percentage of the agreement has been performed.

Doctrine of Laches
Where there is unnecessary delay in prosecution of one’s rights or obligations the Court may decline to entertain them.


.  becoming a lawyer/legal education
.  do you need a lawyer to navigate the legal system
.  how much do lawyers cost and how are they paid

Making laws / Constitution (Ss. 91 & 92 of British North America Act) / Jurisdiction; Reasons for law (control/governance, authority, standards, predictability, perpetuity/survivability).

.  Public laws (Federal/POGG, Provincial, Municipal, International)

.  Private (tenant, condominium) / Contract law (verbal and written; elements of contract; caveat emptor; warranties – express and implied); legislated and common-law

.  Natural law

.  Clerical law (biblical, Koran, etc.) / Separation of State and Religion

Legal argument and debate

.  Syllogistic reasoning (how to structure an argument; moving from general to particular)

.  Legal reasoning (state the question/”issue”, give the answer, explain the reasons, provide conclusion/alternative)

Estate Planning (death and inter vivos)

. wills
. powers of attorney
. trusts (fiduciary/beneficiary, guardian, principal/agent)

Property (registration and manner of ownership)

. real

. joint/common
. co-ownership
. partnership

. personal

. intellectual (copyright, trademark, etc.)

Insurance (insurable interest, insured risks, uberimmae fides)