GMGT 3300 EXAM WITH COMPLETE
SOLUTION 2024/2025 LATEST
UPDATE
Some problems exist with the doctrine: - Answer-1) Because you follow pre-existing
decisions, if one of these courts make an error and makes a bad principle, it will persist
for a long time.
2) The principles or ratios themselves in the common law system aren't that clear, they
are interpreted and interpolated. Very seldom are those ratios clarified, which creates a
level of uncertainty which the civil law system doesn't have.
Emergence from custom to law: - Answer-Historically the doctrine of stare decisis
operated on a rule of custom. It was not till the 19th century that the House of Lords
accepted the doctrine of stare decisis and proclaimed it law. The reason why it was
accepted was complex:
1) industrial revolution - requiring certainty, people dealing with commercial contracts,
money.
2) intellectually rationally and positivism was becoming ascendant (more popular)
3) commercial printing (printing press) had become even more developed and greater
distribution systems were available.
Convergence of systems: - Answer-Interestingly, the civil law system and common law
systems are growing in similarity. You'll find the law almost the same within Canada and
Quebec systems. There is a convergence of reality, because there is pressure on the
two systems.
• Common law looks more like civil law systems and vice versa.
• The civil law system now uses precedencies.
• In the common law system we simultaneously find a greater use of codes, for example
the criminal code, human rights code, fire code, the partnership act, the sale of goods
act.
• We have also seen that the final appellate courts are not bound by their precedence's,
the ability of courts to distinguish cases on their facts gives the courts more freedom.
THE NATURE AND ROLES OF COURTS - Answer-Courts are an institution of dispute
resolution. Their unique feature is that they make law simultaneously. There are other
institutions that make law and resolve disputes: arbitration, mediation, reconciliation,
settlement.
ADR's (Alternative Dispute Resolutions) - Answer-make final decisions, gives an
individual the ability to dissolve a dispute. Mediation: can talk to the parties but does not
have final say over the decision. Conciliator: no say over final decision nor can they
,suggest a decision. Settlement: making a deal. Courts are expensive, judges do not
necessarily have a lot of experience in a specific situation. In ADRs, you can select
someone, confidentiality, allow for preservation in ongoing relations. However, ARE
methods always look to the courts for how to guide the parties.
1. Arbitror of the constitution: - Answer-Canada is a quasi federal country in a federal
system: it means that there's government of two levels each of which are independent
and each is assigned different jurisdiction. These two levels were created in 1867 by the
British North American act changed to the constitution act of 1867.
• Federal parliamentary powers are GST, military, post office, currency, national
defence, weights & measures, trade & commerce, penitentiaries
• Provincial government controls health care, education, taverns, highways and liquor.
• The act that sets out the jurisdictions was made in 1867, but there are going to be
disputes over jurisdiction over things that they didn't have back then.
• The courts have ultimately taking over arbitrating these disputes. They have assumed
it and both parties have respected it.
• Inter-jurisdictional matters (not examinable), for example Attorney General of Manitoba
vs. Attorney general of Canada over liquor taxes. Someone wanted to get the taxes on
liquor being served on the airlines while flying over Manitoba. Supreme court decided
that there are 3 strata of airspace: right over the person that owns the ground, then
provincial, then federal and hadn't decided what altitude each occupied, however said
the plane were in federal airspace.
2. Interpreter of legislation: - Answer-• They give meaning to terms in the context of
disputes.
• When they are interpreting legislation they have various approaches:
1. plain meaning approach - dictionary definition,
2. liberal approach - purposive, they look at the object of the statutes in the context it
was created
3. golden rule - use plain approach and if necessary go to the liberal approach
3. Protector of civil liberties - Answer-(traditionally refers to the freedom of the individual
in politics and religion.)
• These terms have embraced
o freedom of expression, both of speech and the press,
o freedom of association and assembly,
o freedom to practice and preach one's religion,
o freedom from arbitrary arrest, and
o the right to a fair trial.
• The courts assume the role of protecting civil liberties, and have changed over time
(used to be called civil liberties and are now more often called human rights). In 1960
during Diefenbaker government, a bill of rights was passed in statutory form by the
government of Canada, encapsulated in statutory form both rights and freedoms and
the need for their protection. However importantly it was not entrenched, the courts
didn't have the final decision making power.
, • In 1982 their dreams came true when the Trudeau government gave the charter of
rights. It is entrenched which gives ultimately the supreme court of Canada final
decision making power as well as the power to give those terms meaning.
3. Arbitror of disputes between private persons: - Answer-all about private law, people
go to court to have their disputes resolved. This gave rise to contract law, tort law,
family law etc...
4. Arbitror of public law disputes: - Answer-government on one side, include criminal
law, constitutional law and administrative law.
ADVERSARY SYSTEM: - Answer-• Leading characteristic of the Anglo-Canadian and
American court procedures, not really a system.
• In civil disputes it means that it is generally up to the parties (not the court) to initiate
and prosecute litigation, to investigate the pertinent facts, and to present proof and legal
argument to the decision-making tribunal.
• The courts function in general is limited to adjudicating the issues submitted to it by the
parties or the proof presented by them and to apply appropriate procedural sanctions
upon the motion of a party.
2 assumptions: - Answer-1) The factual proof and appropriate law is more likely to
emerge from bilateral investigation and presentation motivated by the strong pull of self
interest then from judicial investigation motivated only by official duty. In some cases,
the prosecutor is the judge and therefore there is an inherent bias. Example, OJ
Simpson case, said there was a rush to judgement that they didn't investigate other
alternatives. There is an element in the adversary system of individualism much like
capitalism. Capitalism is the use of self interest to generate wealth. Most capitalism
systems have adversary system. The more extreme the capitalism system, the more
extreme the adversary system seems to be.
2) The moral force, legitimacy, and acceptability of a decision will be greatest when it is
made by one who does not have and does not appear to have the kind of psychological
commitment to the result that is implied in initiating and conducting a case. Legitimacy
means that we have the day in court to argue our case and even though the result isn't
what we want, you were able to represent yourself.
WHY DOES THE ADVERSARY SYSTEM NOT ALWAYS WORK? - Answer-1) People
aren't of equal means (poor, middle class, rich). If you're rich, you can hire better council
to represent you. You can hire better expert witnesses.
2) Lying and covering up evidence
3) Self interests can create abuses of procedures. In '96/'97 the OJ Simpson case was
thought to be unfair because OJ had lots of money. (However it was really that he had
only 8 million dollars and the LA County invested 60 million dollars.) In every case there
is an unequal means issue
In Manitoba we don't have a pure adversary system, lawyers have duties to the court.
For example, the lawyer won't do the case if he knows the client did it and is going to lie.
