Canada's legal system includes both common law and civil law systems
This article is part of a series addressing popular topics and questions clients and the public may have about the legal profession.
Outside of Quebec, law originates from two sources: the common law and statute. Common law is law based on precedent: previous decisions made by other judges in similar cases. Statute refers to laws written by legislative bodies such as Parliament. In Quebec, the civil law system is primarily based on statute. The Civil Code of Quebec “governs persons, relations between persons, and property” and is the foundation of all other laws governing the province.
These sources of legal authority – statute and common law – interact and can create confusion when precedent offers a different conclusion than the law codified in legislation. One example is how much notice employers must give terminated employees, says Andrew Monkhouse, an employment lawyer in Toronto.
Ontario’s Employment Standards Act says an employer owes a terminated employee one week per year of service, up to eight weeks. He says a regular person reading the legislation would assume that is their entitlement. However, this requirement under the ESA is a “minimum standard.” Under the common law, employers must provide “reasonable notice.”
“Generally, most people who are getting reasonable notice get, usually, a minimum of three months or so, and up to a maximum of two years. Usually ranging somewhere between three-to-five weeks per year of service.”
Statutory law also interacts with common law because it can codify it without displacing it, said Minden, Ont. lawyer Donald Lange. The Criminal Code codifies criminal law by statute. Still, criminal law involves important common law concepts, such as mens rea (the knowledge of wrongdoing or intent which forms criminal liability) and natural justice (fairness in a legal procedure).
Common law, or “judge-made law,” generates new common law on a “slow incremental basis,” said Lange. “While judges may be sensitive to the times in which they live, there are rarely broad sweeping changes that occur in the common law because judges must respect the precedent value of previous decisions.”
According to an Ontario Justice Education Network teacher resource, common law dated back to the Norman Conquest of England in 1066. This legal principle is based on “Stare decisis et non quieta movere,” a Latin term which means “to stand by decisions and not disturb the undisturbed.” The concept also involves the hierarchy of the courts, where the decisions of higher courts are binding on all lower court judges and not the other way around. Judges are not bound by the decisions of other judges in their court. The civil law system used by Quebec has an even more ancient origin. This system comes from Roman law. While judges in civil law will refer to prior court decisions, they make rulings mainly based on the applicable code, said the resource.
With a few exceptions, the English-speaking world uses common law, but most countries use the civil system, says Monkhouse.
He says the common law may be “a slightly less user-friendly version” because it is only accessible by reviewing judicial rulings. This system’s “major advantages,” however, are the independence of the judiciary and the ability of judges to respond to what is happening in society.