The Canadian legal system in every province except for Quebec is based on the British common law system. The Quebec province retains a civil system for issues of private law, however both of these legal systems are subject to the Constitution of Canada. Inside the commonwealth system everything is divided into areas like criminal law or civil law. It this article we will examine the Civil Law area and the Common Law area in Canada.

Common law

Canada belongs to a group of common law countries, so Canadian law adheres to the doctrine of stare decisis. In this system all the lower courts are bound by the decisions of higher courts and must follow it. But this works only inside one province, lower courts from two different provinces are not bound by each others decisions. The decisions made by a province’s highest court like the Court of Appeal, nevertheless are considered as “persuasive” even though they are not binding on other provinces. There is also the Supreme Court of Canada that authority to bind all courts in the country with a single ruling. If a there is a little or no existing Canadian decision on a legal issue it is possible that the court will look to a non-Canadian legal authority for reference. Most often the decisions on other commonwealth countries like the U.S. and England are utilized. While the decisions of English higher courts like the English Court of Appeal are respected and these courts are considered the be persuasive authority, many of the constitution or privacy related issues are solved basing on the decisions of United States courts, because the there is a much greater body of jurisprudence in U.S. law than English law in these areas. Canadian courts are also particularly bind with the decisions of the House of Lords made before 1867, but practice shows that most of these decisions were overturned by the Canadian Supreme Court or simply not considered serious by any of the Canadian lower courts.

Civil law

Civil Law in Canada involves numerous areas of law that contain disputes between parties (individuals, corporations and government). In such disputes parties seek remedies from the court in contractual matters, tort disputes, and property law cases. Civil Law is opposed to Criminal law that is typically enforced by the government, while the civil law, may be enforced by private parties. In Canada Civil Law also includes a growing sphere called Administrative Law, which deals with things like federal and provincial administrative tribunals, including labour boards, human rights tribunals, and workers’ compensation appeal tribunals. These decisions still can be reviewed by superior courts like the Federal Court Trial Division or the Federal Court of Appeal. Also Civil Law contains the Municipal Law area that covers jurisdiction of the provincial legislatures (that naturally varies from province to province). Established by the Supreme Court of Canada, the Charter of Rights and Freedoms applies to the activities of municipal governments.




By: Rebecca Brown