El educador orienta la participación del aprendiz

Judges operate within a system of courts that vary somewhat from province to province. Despite these variations, each provincial and territorial system of courts has three basic levels: trial, intermediate appeal, and final appeal. Figure 2.2 above indicates the hierarchy of courts relevant to commercial disputes.

Trial courts are of two types: inferior and superior. Inferior courts are presided over by judges appointed by the provincial government. These courts are organized by type of case, such as criminal, family, and civil. The civil court—sometimes called small claims court —handles disputes involving smaller amounts of money. The amount varies from province to province: $25 000 is the limit in British Columbia, Nova Scotia, and Ontario²⁹ while $20 000 is the limit in Saskatchewan.³⁰ The process is designed to be simpler, quicker, and less expensive than mainstream litigation. Parties often appear in this court without a lawyer. Superior courts —whose judges are appointed by the federal government—have the jurisdiction to handle claims involving an unlimited monetary amount. In addition, they are the entry level for the more serious criminal matters. Here, the procedure is much more formal and technical, with parties usually being represented by lawyers.

Provincial courts of appeal hear appeals from these lower courts, and from there cases go to the Supreme Court of Canada . In most commercial cases, litigation tends to end in provincial courts of appeal because appeal to the Supreme Court of Canada is available only after permission or “leave” to appeal is granted by the Supreme Court itself. Ordinarily, the Supreme Court of Canada will hear only appeals that involve questions of national concern or significance.

The Federal Court of Canada has special authority to deal with certain cases in which one of the parties is the federal government or one of its agencies.

The Canadian Charter of Rights and Freedoms

An important responsibility for judges is determining whether a given law meets the requirements of the Canadian

Constitution, including the Canadian Charter of Rights and Freedoms [Charter]. Created in 1982, the Charter is intended as a judicially enforceable guarantee that the government will act consistently with the values associated with a liberal democratic state. The right to freedom of expression and of religion, the right to a fair and speedy trial, equality rights, and the right to vote are all examples of Charter protections that reflect a set of constitutional values founded on individual

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freedom. Two protections that are particularly germane to business are contained in sections 2 and 15.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

a. freedom of conscience and religion;

b. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c. freedom of peaceful assembly; and d. freedom of association.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Charter is a powerful constitutional document because it provides protection from improper or oppressive government conduct—conduct that most often takes the form of legislation or policy. In short, section 32 of the Charter prohibits government and government alone from violating any of the rights or freedoms recited. By way of contrast, violation of rights in the private sector, such as through employment discrimination, is a matter for provincial and federal human rights codes and thus is addressed according to a separate set of rules.³¹

It is almost certainly the case that Nova's Scotia's Tobacco Access legislation violates section 2 of the Charter—freedom of expression. Indeed, the Supreme Court of Canada has already affirmed that commercial expression is protected under section 2, stating:

[o]ver and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers, plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self-fulfillment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.³²

But demonstrating a violation of section 2 does not automatically render legislation unconstitutional because the rights and freedoms guaranteed by the Charter are not absolute. On the contrary, the Charter acknowledges that the government is entitled to restrict freedom of expression—as well as any other right recited in the Charter—but only if it has balanced all relevant interests carefully and reasonably, as required by the very first section of the Charter.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 1 requires the government to justify why it is infringing a right, as well as to demonstrate that in doing so, it is restricting the right in question in a reasonably measured, controlled, and appropriate way. If it is unable to do so, the legislation is struck down by the court, that is, it is declared to be of no force or effect. In essence, the Act is thrown out because it is unconstitutional. The court's authority to order such a powerful remedy is set out in sections 24 and 52 of the Charter.

A court assessing the constitutionality of Nova Scotia's Tobacco Access Act, for example, would first seek to determine what the government was trying to accomplish through the legislation. Here, the goal is clear, as section 2 of the legislation states:

Section 2: The purpose of this Act is to protect the health of Nova Scotians, and in particular young persons, by

(a) restricting their access to tobacco and tobacco products; and

(b) protecting them from inducements to use tobacco, in light of the risks associated with the use of tobacco.

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This identified purpose helps to refute the argument that the Nova Scotia's Tobacco Access Act cannot be saved under s. 1.

This is because any challenger to the legislation would be forced to rely on arguments similar to those rejected by the Supreme Court of Canada in Canada (Attorney General) v JTI-Macdonald Corp. [JTI-Macdonald].³³ To this extent, the arguments cannot succeed. In JTI-Macdonald, at issue was the constitutionality of the federal government's 1996 legislation known as the Tobacco Act, which prohibits most forms of tobacco advertising, including “lifestyle” advertising. The Act defines “lifestyle advertising” as “advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.”³⁴ The Supreme Court of Canada held, among other things, that though the Tobacco Act's prohibition on lifestyle advertising violated the Charter's guarantee of freedom of expression, this violation was justified under s. 1 because of Parliament's pressing and substantial purpose, namely to prevent young people from starting to smoke. By way of analogy, the Supreme Court of Canada's analysis in JTI-Macdonald suggests that Nova Scotia's legislation is also constitutional. That is, since

prevention of smoking in young people informs the core of Nova Scotia's Act, infringement on freedom of expression (in the form of a power wall ban) is likely also justifiable under s. 1. The fact that the tobacco industry has yet to bring a Charter challenge against power wall legislation anywhere in the country suggests, perhaps, that the industry does not like its chances of success either.

That said, an individual store owner has brought a Charter challenge against Nova Scotia's legislation, as discussed in the following box.

Not all Canadians agree with the idea that the judiciary should have the power to strike down legislation as being unconstitutional. Some believe that it is undemocratic for the courts to have the right to eliminate or amend a law duly enacted by elected representatives. However, those who support the Charter argue that even a majority (the elected

representatives who enacted the legislation) should not have the power to infringe on the rights of others. Put another way, a liberal democratic system of government is not just about majority rule, as suggested in the following statement from Madam Justice Wilson of the Supreme Court of Canada:

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.³⁸

Though the court has the power to assess the constitutionality of legislation—and to strike down the law, if need be—it is the legislative branch of government which has the last word in many cases. That is, the Charter permits the government to override or disregard a judicial decision that a given piece of legislation is unconstitutional or to pre-empt judicial involvement at the start. Section 33 of the Charter allows the government to enact legislation “notwithstanding” its

unconstitutionality. While the government does not have this option with respect to all rights and freedoms guaranteed by the Charter, it does have this option for a great many of them, including the right to freedom of expression.³⁹

There are, of course, political consequences to using section 33, as when the government of Alberta invoked this provision when it introduced Bill 26 on 10 March 1998. This bill would limit the right of recovery to $150 000 for those wrongfully sterilized under that province's Sexual Sterilization Act, which was repealed in 1972. As a result of public outcry that the government would deny sterilization victims their right to establish in court that they had suffered damages exceeding $150 000, the government quickly withdrew its proposed legislation.⁴⁰

FIGURE 2.3 Sampling of Constitutional Challenges Brought by Business

Case Nature of alleged Charter

Action failed. The Supreme Court of Canada ruled that purely

economic interests—such as being able to retain business income—are not encompassed in the Charter's protection of life, liberty, and security of the person.

Action succeeded. The Supreme Court of Canada ruled that the law was unconstitutional since its purpose was “to compel the observance of the Christian Sabbath.”

Action failed. The Supreme Court of Canada held that the law was valid. Though the law did violate freedom of religion (i.e., its effect placed a burden on those who observed a non-Sunday sabbath), the law was saved under s. 1. The court held that the valid secular purpose of the law—to provide a common day off for retail workers—was sufficiently important to justify limiting the right of freedom of religion.

Mixed result. The Supreme Court of Canada held that the standard of obscenity was valid. However, the court identified discrimination in how the legislation was implemented since homosexual literature was disproportionately and without justification targeted by customs

Action succeeded. The Supreme Court of Canada ruled that freedom of expression includes “the freedom to express oneself in the language of one's choice.” (Note: This law was reenacted using s. 33.)

Irwin Toy v

Action failed. Though the law violated freedom of expression, it was saved under s. 1. The Supreme Court ruled that protection of children is important, hence justifying the limitation. As well, since the law permitted the advertisement of toys and breakfast cereals provided cartoons were not used, the ban was only partial in any event.

Rocket v Royal

Action succeeded. The Supreme Court of Canada held that while maintaining high standards of professional conduct justified some kind of regulation, this act went too far in banning all advertising.

Slaight

Mixed result. The Supreme Court of Canada held that if the letter were ordered to contain an opinion that the employer did not hold, that would be unconstitutional. Where the letter had only to contain

“objective facts that are not in dispute,” the order can be justified under s. 1.

Action succeeded. The Supreme Court of Canada held that the act did not contain enough safeguards to determine when documents can be seized.

Action failed. The Charter applies only to government or bodies that are not independent from government. Here, the university was classified as a private body. Additionally, the university could rely on the Ontario Human Rights Code (which applies to the private sector), which permitted mandatory retirement. Though this provision of the code contravened s. 15, the discrimination was demonstrably justified under s. 1.

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FIGURE 2.3 Sampling of Constitutional Challenges Brought by Business

As noted earlier, the Charter governs the relationship between the person and the state, restraining government action that is, for example, discriminatory. By way of contrast, certain kinds of discrimination in the marketplace by one person against another are made illegal primarily by human rights codes as well as by related forms of legislation.⁴¹

Business and Legislation: Store Owner Challenges: Nova Scotia's