(In case you’re just here to cram for your exam, you don’t really need to read this post. It’s mostly just nice-to-know things which can help you better understand the course contents.)

Once upon a time, England was ruled by monarchs with actual authority, and actual works to do besides traveling around the world for honeymoon. The King traveled his lands, and one of his jobs was to resolve disputes for his people. But overtime, the number of disputes increased, while the number of king remained more or less the same. Even if he’s the King , he still only had twenty-four hours each day. Unable to addend to everything by himself, the King appointed people to resolve disputes on his behalf, on one condition: that any new judgement shall follow the previous judgements made by the King if the facts of the matter were similar enough.

This formed the basis of our modern day Common Law system in Canada, which we owe, much like other former British territories and members of the Commonwealth, to England. It is the dominant legal system in places like the United States, Australia, United Kingdom, Hong Kong, and Canada with the notable exception of Quebec. More on this later.

The Common Law system is characterized by the emphasis on legal precedents, which evolved from the requirement that all the new judgements follows the old judgements by the King if applicable. Today in Canada’s Common Law jurisdictions (that’s a fancy way of saying everyone except Quebec), as well as in the United States, a legal precedent, which is the rulings of a previous case with similar facts to the case at bar, is binding if the precedent is from a superior court of the same jurisdiction. That is, a judge must follow the precedent if it is binding on his/her court. Precedents from lower or equal level courts, or courts of other jurisdictions, may be referred to, but are not binding.

To clarify, here’s an example. Suppose that the Supreme Court of British Columbia (SCBC) have a case with facts similar to a case decided by the Supreme Court of Canada (SCC), then the judge of SCBC must follow the decisions of the previous case by the SCC, wherever applicable. Suppose that the Supreme Court of Alberta (SCA) also has a precedent with similar facts. This second case may be referred to by SCBC, but SCBC doesn’t have to follow the previous decision of the court of Alberta.

Note that SCBC and SCA are in the different jurisdictions in the sense that their juridical power rests on the provincial level, and they belong to two separate provinces. Under the Canadian and US federal systems, each province/state is a separate jurisdiction of its own.

Alongside the Common Law system is the court of Equity. It stemmed out of, and evolved alongside, the Common Law system in feudal England. Back to the story of our busy king. Even after the King had appointed representatives (judges) to resolve disputes on his behalf, the number of conflicts just kept on growing as the country grew. Originally, anyone suing had the option to ask for a lot of things as compensation. But as matters grew, and to simplify things, the judges eventually decided to only award money as compensation. This is the origin of the concept of damages.

But what about matters involving compensations other than money? For example, if someone stole the Mona Lisa, no amount of money would suffice as the equivalent of the return of the original piece. These matters were diverted to the King’s Chancellors, who instituted the Court of Equity, originally know as the Court of Chancery.

The Court of Equity has a deeply religious root, largely thanks to the nature of the King’s Chancellors, who were very religious people in the royal court. As a result, Equity really emphasises on the idea of “good faith” and “clean hands”. Basically, if you want to sue anything in Equity, the court will look at you and see if you are a good person.

Equity provides three types of rewards: specific performance, injunction, and rescission. Specific performance is a court order to have something done, for example, proceed with a transaction. Injunction is almost the exact opposite: a court order to not have something done, for example, not proceeding with a transaction. Or, if this is easier to relate to, prevent your neighbour from having loud midnight parties. Rescission is to return both to their respective positions before the contract, which is similar to you returning the GPS you bought from Best Buy after your road trip.

As the blog proceeds, I will likely touch on more details regarding the laws of Equity. Most notably, you will really need to know about Promissory (or Equitable) Estoppel, which is likely the most heavily focused piece of Equity law in this course. For now, this should be enough.

(If you are cramming for an exam and have read this far, thank you and good for you, but you really don’t need to keep reading the rest of this post.)

Do you still remember Quebec? Oh Quebec, is like your little brother who is always trying to be different and special. To be fair, Quebec is kind of like, adopted.

With is deeply rooted French origin, Quebec is the only Civil Law jurisdiction north of Texas. Civil Law is the older of the two systems, originated from continental Europe, is still the dominant legal system in France, Germany, mainland China who adopted its system from France and Germany, and of course, Quebec. The Civil Law system is characterized by its lack of reliance on precedents, and mainly focusing on written laws and legal codes to decide on matters.

In case you are lost at this point (I know you are, don’t hide), allow me to briefly explain the two systems together. Don’t get me wrong, both the Common Law and the Civil Law system require statutory legal codes (which is probably what your image of law is: dense small texts written in a collection of dictionary-like tomes), which are created by government institutions with legislative power. In Canada, it’s created by our federal and provincial parliaments. (The US is more complicated, but you don’t need to know for this course. I may discuss the US system in a separate post.) Once the parliament passes a bill of legislation (by voting), it becomes a law in the jurisdiction of that parliament.

(If you need to cram and are still reading this post, bookmark it and come back later; you really need to go read my other posts instead of the random facts I’m about the blurb out.)

The key differentiating factor of the Common Law system is that the court also has it’s own version of legislative power. Once a bill is passed in parliament, although it becomes statutory law, the “law” doesn’t quite, eh, materialize, until it is brought in front of a court. This is because the court has the right to interpret the written words of a law. The court does this by looking at a lot of things, including but not limited to the original intention of the legislators, the circumstances surrounding the case in which the law was brought up (because a piece of law can only be brought to court through a concrete case), and common sense (yes it is important to have common sense).

And this is the best part, because this is why we care so much about precedents and why they are so important: whatever the interpretation of the court, it becomes part of the ruling of the case, and thus a precedent, which we know can be binding on lower courts of the jurisdiction. In other words, the ruling becomes a part (and often one of the last pieces) of a code of law. The court really has the last laugh. Of course, a ruling of a lower court can still be overthrown by a superior court, in which case the latter’s ruling becomes binding. The SSC really has the last say on what a piece of law really is. (Yes even the decisions of SSC can be overthrown, although the process is lengthy and complicated, and honestly, I still don’t quite understand myself).

On the other hand, the Civil Law system doesn’t have a system of precedent, and thus its courts lack major power in helping formulating the laws. The Civil Law system is quite fascinating in a different manner, which I do not understand and will not pretend to in this blog. Maybe I’ll write about it one day once I’ve learnt enough.