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History of Common Law and Statute Law in Canada

Updated for 2010 Changes to the Professional Engineers Act

These web pages have been updated to include both enacted and pending changes due to the Open for Business Act, 2010. Note that some changes will not be in force until proclaimed by the Lieutenant Governor; for example, the putting into force the end of the industrial exemption has been delayed numerous times.


All information on this website is provided without any warranty to its correctness. The material on these pages reflects Douglas Wilhelm Harder's best judgment in light of the information available to him at the time of its preparation. Any use which a third party makes of these pages, on any reliance on or decision to be made based on it, are the responsibility of such third parties. Douglas W. Harder accepts no responsibility for damages, if any, suffered by any third party as a result of decisions made or actions based on these pages.

A set of PowerPoint slides are available at History_of_Law.pptx, but the reader is advised that the discussion related to the presentation is just as important as the slides themselves.

The history of common law is intimately tied to the history of Great Britain. In all regions other than Quebec, English common law forms the basis of our form of laws.

While certain elements of English law may be traced to pre-Norman Saxon times, English common law began with King Henry II who was crowned in 1154, less than a century after the Norman invasion of 1066. Soon after the start of his reign, Henry introduced a unified system of laws which were meant to be common to all the subjects in his realm. To enforce these laws, he appointed judges who resolved disputes on an ad hoc basis; however, these decisions were recorded and later discussed when the judges and these decisions were then used to guide the future decisions. This began the principle of stare decisis, two words from a longer Latin phrase which translates to "To maintain decisions and to not affect what has been established". This is also known as the rule of precedence: a judge is expected to follow the guidelines set by decisions previously made by superior or equal judges; however, a judge has the ability to also base his (or her, today) decisions on either changes to society or differences in the exact nature of the current case. Of course, at any time, the king could create laws as suited him from time to time.

Henry II's son, King John (successor of King Richard the Lionhearted), sealed the Magna Carta (the Great Charter) is 1215, a mere sixty-one years after the introduction of common law. This was significantly based on an older document, the Charter of Liberties, but it included additional provisions which, over the years laid the foundations of Parliament. The authority to pass laws slowly transferred from the monarch to Parliament over the centuries and those eligible to have a voice in Parliament also grew from barons to knights and clergy to burghers and finally to the common people (hence the House of Commons). This document was not without its detractors: King John renounced it almost immediately and Pope Innocent III annulled the document; however, it had been sealed and its effects are still with us today despite the attempt at interference from Rome.

A statute or a statue law is a law written by a legislative body such as Parliament. Often statues are normalizations or codifications of various common law precedences. By the principle of the supremacy of Parliament, any law passed by Parliament has precedence over common law. Exceptions do, however, exist, for example, the Ace of Supremacy of 1534 of King Henry VIII was not a normalization of existing common law.


In Canada, the Canadian Constitution Act of 1867 (previously named the British North America Act of 1867) divided the authority to legislate statutes between the federal and provincial legislatures. Each legislature may only pass laws over specified areas:

Section 91 of the Constitution Act of 1867 lists twenty-nine exclusive to the federal legislature. These include:

  1. The public debt and property,
  2. The regulation of trade and commerce and unemployment insurance,
  3. The raising of money by any mode or system of taxation,
  4. The borrowing of money on the public credit,
  5. Postal service,
  6. The census and statistics,
  7. Militia, military and naval service, and defence,
  8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada,
  9. Beacons, buoys, lighthouses, and Sable Island,
  10. Navigation and shipping,
  11. Quarantine and the establishment and maintenance of marine hospitals,
  12. Sea coast and inland fisheries,
  13. Ferries between a province and any British or foreign country or between two provinces,
  14. Currency and coinage,
  15. Banking, incorporation of banks, and the issue of paper money,
  16. Savings banks,
  17. Weights and measures,
  18. Bills of exchange and promissory notes,
  19. Interest,
  20. Legal tender,
  21. Bankruptcy and insolvency,
  22. Patents of invention and discovery,
  23. Copyrights,
  24. Indians, and lands reserved for the Indians,
  25. Naturalization and aliens,
  26. Marriage and divorce,
  27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters,
  28. The establishment, maintenance, and management of penitentiaries, and
  29. Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.

Those which may be of greater interest to engineers are highlighted in bold.

Section 92 lists sixteen areas subject to provincial legislation:

  1. Repealed;
  2. Direct taxation within the province in order to the raising of a revenue for provincial purposes;
  3. The borrowing of money on the sole credit of the province;
  4. The establishment and tenure of provincial offices and the appointment and payment of provincial officers;
  5. The management and sale of the public lands belonging to the province and of the timber and wood thereon;
  6. The establishment, maintenance, and management of public and reformatory prisons in and for the province;
  7. The establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals;
  8. Municipal institutions in the province;
  9. Shop, saloon, tavern, auctioneer, and other licences in order to the raising of a revenue for provincial, local, or municipal purposes;
  10. Local works and undertakings other than such as are of the following classes:
    1. Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province,
    2. Lines of steam ships between the province and any British or foreign country, and
    3. Such works as, although wholly situate within the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces;
  11. The incorporation of companies with provincial objects;
  12. The solemnization of marriage in the province;
  13. Property and civil rights in the province;
  14. The administration of justice in the province, including the Constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts;
  15. The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section; and
  16. Generally all matters of a merely local or private nature in the province.

The interpretation of these statutes, however, is left to the courts and once an interpretation has been made by the courts, that interpretation serves as precedence for future decisions.

When the Constitution was repatriated in 1982 under P.E. Trudeau, a number of additional statutes were added to the Constitution. These are collectively referred to as the Constitution Act of 1982 and one component was the Charter of Rights and Freedom. Section 52 of the 1982 Act states:

Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This is critical, as it emphasizes the supremacy of the Constitution over Parliament where one of those components is the Charter of Rights and Freedom which enshrines:

Fundamental freedoms
2. Everyone has the following fundamental freedoms:

  • Freedom of conscience and religion;
  • Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication;
  • Freedom of peaceful assembly; and
  • Freedom of association.

In order to demonstrate the relationship between statute law and common law, we will consider the case of the Alberta statute named the Individual Rights Protection Act. This provincial act did not extend the specified "protection" to homosexuals whose rights, as a result, were violated on account of their sexual orientation. This was brought before the Supreme Court of Canada in the case Vriend v. Alberta (see LEXUM) which observed that, while sexual orientation was not explicitly listed in the Charter of Rights and Freedom, it is reasonable that it should be included. This introduced a precedence for interpreting the Charter and consequently, any future lower court must interpret the Charter in light of this decision.

Another example of the relationship between common law and statute law is the interpretation of the entries Generally all matters of a merely local or private nature in the province. This, too, is subject to interpretation by the courts and court decisions based on this entry will set a precedence for future decisions.

An example where common law sets a precedence which is then overturned is that of the concept of fundamental breach. Fundamental breach is a concept which was championed by Lord Denning (of the Court of Appeals) through the Rule of Law doctrine. This interpretation was, for a while, applied specifically by the Court of Appeals, though it was effectively overturned by a decision though the House of Lords which introduced the Rule of Construction doctrine (or true construction approach) in the case Photo Productions Ltd. v. Securicor Transport Ltd.. While this did not end the doctrine of fundamental breach, it was suggested that fundamental breach should be "laid to rest" in 1989 in Tercon Contractors Ltd. v. British Columbia that it was stated that the doctrine of fundamental breach should be "laid to rest". Thus we have the forty-year cycle seeing the introduction of the doctrine of fundamental breach until it was finally "laid to rest" in 2010.

Delegation of Authority

Both the federal and provincial governments have the power to delegate authority to other bodies. For example, provincial governments provide for municipalities which have their own by-laws, codes, etc. In addition, the provincial governments delegate the regulation of engineering to specific bodies such as Professional Engineers Ontario. In this example, the Professional Engineers Act lists the responsibilities and authority delegated to this body.

Professional Engineers Act

This statute provides for:

  • The self-regulation of the profession of engineering through Professional Engineers Ontario (the "Association"),
  • The issuance of licences and certificates of authorization,
  • Appropriate committees including the Complaints, Discipline, and Fees Mediation committee,
  • Liability insurance, and
  • Discipline and enforcement.

These are covered in the topics:

Engineers are not only required to understand this act, however. They must also be aware of:

  • The basis of Law in Canada (covered here),
  • Relevant statutes (often field-specific),
  • The theory of common law and relevant cases which have defined precedence, and
  • Additional regulations, standards, codes, by-laws and rules.

As most engineering services are provided under contract, it is necessary that engineers also understand:

  • Contracts as a common law concept;
  • Relevant cases; and
  • Aspects covered by statute, including:
    • Limitations Act (Ontario),
    • Intellectual property acts (Canada),
    • Construction Lien Act (Ontario),
    • Competition Act (Canada), and
    • Statue of Frauds (Ontario).

Engineers are engaged in a profession which may affect the public. For this reason, they must also be aware of tort law, specifically the unintentional tort of negligence:

  • Again, a common law concept;
  • It is critical to understand the relevant cases; and
  • Certain aspects are covered by statute:

    • Limitations Act (Ontario), and
    • Workplace Safety and Insurance Act (Ontario).

These are covered in the topics: