Glossary of terms

Action. A civil law proceeding sometimes called a "lawsuit".

Affidavit. A written document of a statement of facts, confirmed by oath or affirmation of the party making it.

Appeal.  Any case to set aside or vary the judgment of a lower court.

Appeal allowed. The court has decided in favour of the Appellant (person or organization who appealed the earlier decision).

Appeal dismissed. The court has decided in favour of the Respondent (person or organization that didn’t want the earlier decision appealed) and against the Appellant.

Appellant. Person who makes a formal request of a court.

Application for leave to appeal. The procedure for requesting the court’s permission to hear an appeal; an application for the right to appeal a lower courts decision.

Binding.  A court’s decision that cannot be ignored by other courts. If the decision is from a higher court than the one considering the case, they are “bound” by that higher court decision.

Bylaw. A law or rule passed by a municipal council, and applicable only to that municipality.

Cabinet. A part of the Executive branch of the Canadian Government, the Cabinet is customarily made up of members of the House of Commons who have been chosen as Ministers by the Prime Minister and formally appointed by the Governor General. Provincially, the Cabinet is made up of members of the Legislative Assembly who have been chosen by the Premier and appointed by the Lieutenant-Governor. The Cabinet is responsible for most legislation. It has the sole power to prepare and introduce bills providing for the expenditure of public money or imposing taxes.Citation.  A reference used to find a legal case in a law library or for online legal research.

Citizenship. Having all of the rights, duties and responsibilities of a member of a state or nation (country).

Civil Law.  Law inspired by old Roman Law, the primary feature of which was that laws were written into a collection; codified, and not determined, as is common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow (i.e. Quebec code civil).

Common Law.  Commonly known as judge-made law or case law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as "unwritten" law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgment.

Complainant.  The person who files the complaint, usually in the context of an administrative tribunal such as the Human Rights Tribunal or Employment Standards Board. The respondent is the person or company the complainant filed the complaint about.

Constitution. A set of rules and practice by which a country is governed. The rules and practices may be in a written constitution or may be unwritten. In Canada, the Constitution defines the relationship between the provincial and federal governments, defines Parliament and other government structures, and now includes the Charter of Rights and Freedoms.

Court system. The judicial process by which a nation’s laws are interpreted and applied, as well as for enforcing laws.

Democracy.  A form of government in which laws are made by a direct vote of the citizens (direct democracy) or by representatives on their behalf (indirect democracy). Indirect democracy involves elections with candidates often coming from competing political parties.

Dissent. To disagree. The word is used in legal circles to refer to the minority opinion of a judge which runs contrary to the conclusions of the majority of the judges in a case. At higher courts of appeal there is usually more than one judge making the decision.

Duty to Accommodate.  Human Rights law requirement to recognize needs and to provide for those needs. Best efforts need to be made to accommodate differences unless it results in undue hardship. Usually exists within the context of employer to employee.

Factum. Written arguments that get submitted to the courts in cases of appeals. The document filed by the parties and intervenors. It is in seven parts containing a statement of facts, questions in issues, argument, submission (if any) in support of the order sought, the order or orders sought, a list of authorities and provisions of any statute, regulation, rule ordinance or by-law relied on.

Federal system. A system of government in which several political jurisdictions (provinces) form a unity but retain autonomy in defined areas. The central or national government is called the federal government.

Hansard. Minutes from the Legislature or House of Commons. These record debates in the Legislature or Parliament and can be referred to in order to point out the intentions of the government when they were trying to pass a new law.

House of Commons. The federal, democratically-elected, law-making body. In each of Canada’s 308 constituencies, or ridings, the candidate who gets the largest number of votes is elected to the House of Commons. The number of constituencies may be changed after every general census, under the constitution and the Electoral Boundaries Readjustment Act that allot parliamentary seats roughly on the basis of population. Every province must have at least as many Members in the Commons as it had in the Senate before 1982. The constituencies vary somewhat in size.

Human rights. Rights belonging to all people as defined in the Universal Declaration of Human Rights which was adopted by the United Nations in 1948.

Inferior court. Lower courts—such as Provincial Court—that hears a great many of the less serious civil and criminal law cases, and some serious criminal cases with the consent of the accused (i.e. Provincial Court of British Columbia).

Intervenor. A friend of the court (amicus) who has permission of the court to make arguments regarding the larger implications of a decision on specific groups that may not be represented by the two parties to the case but will nevertheless be affected by the outcome of the case.

Judgment. The decision of the court.

 Judgment reserved. The decision of the court has not been given at the hearing, but is postponed until a future date.

Judicial Independence. Judicial independence is a cornerstone of the Canadian judicial system. Under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive (cabinet) and legislative. Judicial independence is a guarantee that judges will make decisions free of influence and based solely on fact and law. It has three components: security of tenure, financial security, and administrative independence.

Security of tenure means that, once appointed, a judge is eligible to serve on the bench until the age of retirement (required at age 75 for federally appointed judges, age 70 in some provincial jurisdictions) and can be removed only if an independent investigation shows that there is good reason (see Ethics and Discipline, below). Financial security means that judges should be paid sufficiently and in a manner that does not leave them in a position of dependence or subject to pressure. In Canada, governments cannot change judges’ salaries or benefits without first consulting an independent commission. Administrative independence means that no one can interfere with how courts manage the litigation process. For example, it is the chief justice of a court who chooses how cases are distributed. A number of institutions foster judicial independence, notably the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs and the National Judicial Institute. These institutions help maintain a distance between the government and the judiciary in areas like pay and benefits and provide continuing education for judges.

Appointment and education of Judges

Judges are appointed by the federal or provincial governments, depending on the level of court. To be appointed by the federal government to a superior court, the Federal Court, or the Supreme Court, a candidate must have been a lawyer for at least ten years. Judges appointed to provincial superior courts must also be qualified to practise law in the province in question. There are similar requirements for provincial appointments. In Canada, judges are not required to have any formal training on how to be a judge before they are appointed. However, once appointed, they have access to a range of programs at both the provincial and federal levels on all aspects of judging, as well as areas of the law. The National Judicial Institute, in particular, coordinates and delivers educational programs for all federal, provincial, and territorial judges. The Institute is funded by both the federal and provincial governments, and regularly offers courses for new judges. 

Ethics and discipline of Judges

Each jurisdiction in Canada has a judicial council which has general responsibility for promoting professional standards and conduct. The council for federally appointed judges is made up of members of the judiciary. For provincially and territorially appointed judges, each province or territory has a judicial council whose members include judges, lawyers, and individuals from the general public. Judicial councils develop policies and codes of conduct to provide guidance for judges. They may even recommend that a judge be removed from the bench if it becomes necessary, though few judges have in fact been removed in the history of Canada.

The Canadian Judicial Council, which is responsible for federally appointed judges, consists of the chief justices of all of the federal courts and provincial superior courts. It was created by the federal government to promote efficiency, consistency, and good service in these courts. One of the Council’s tasks is to investigate complaints and allegations of misconduct on the part of federally appointed judges. If it finds evidence of misconduct, the Council may either reprimand the judge or recommend to the Minister of Justice that the judge be removed. The Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial are similar, but they can be removed by a provincial cabinet.)

Jurisprudence.  Describes the series of cases that are relevant to the issue at hand; judges decisions that relate to any given issue. For example: “The jurisprudence on the rights of gays and lesbians suggests that sexual orientation must be read into provincial human rights legislation.”

Land claims. The formal demands presented by First Nations peoples for ownership and control of lands on which they live or have traditionally lived.

Laws. The principles and regulations governing a community’s affairs that are enforced by a political authority and judicial decisions.

Leave to appeal. Permission from the Court to take a decided case to that superior or higher court.

Legislative process. The government process of making and passing laws.

Litigant.  The person who begins a court action, or the person who is named in the court action; a party in a formal court action or lawsuit.

Litigation.  Any court actions. Refers to actual court actions and court driven hearings. Does not normally include administrative tribunals, or other legal matters that do not involve an actual court case.

Lobbying. The act by a person or persons (groups) of trying to influence legislators or other public (government) officials in favour of their cause.

Minority Decision.  The Supreme Court of Canada has nine judges, and Courts of Appeal tend to have three or five. A minority decision occurs when less than half the judges disagree with the majority and render their own decision. While the majority’s decision is the law, the minority decision can provide lawyers with information, analysis and guidance for interpreting and arguing the law in the future.

Minority rights. The privileges of full legal, economic and social equality accorded to particular groups in society that do not comprise the majority of the society.

Monarch. The sovereign ruler under a monarchy. The Queen of Britain is the formal head of the Canadian state (or the King depending on who is currently reigning). She is represented federally by the Governor General, and provincially by the Lieutenant-Governors. However, the queen’s power in Canada today is purely symbolic.

Monarchy. Form of government in which a single person rules and their heir rules when they retire or die. Canada is symbolically a constitutional monarchy, but the Queen would have a very difficult time actually trying to influence our laws and legal structures.

Motion. An application before the court, a Judge or the Registrar brought by notice and supported by an affidavit.

Parliament. An elected assembly responsible for passing legislation and granting the right to levy taxes. In Canada, the federal legislature consists of the sovereign’s representative (the Governor General), the Senate, and the House of Commons.

Patriated. Adopted as law in Canada.

Persuasive.  A decision made by a court that is not binding but can strongly guide the decision making of another court. (For example, Falkiner was decided by the highest court in Ontario – it is not binding on BC courts, but would be highly persuasive. Only Supreme Court of Canada Decisions are binding on the BC Court of Appeal or lower.)

Plaintiff/Complainaint/Applicant/Grievor.  The person who has begun the legal process. Plaintiff is usually in the context of civil litigation, complainant in case of administrative tribunals such as human rights, and the grievor in relation to labour relations issues where a union is involved. An applicant is usually in the situation where one party – whether originally the plaintiff or defendant – has applied to appeal a lower courts decision. The person who is forced to respond to the appeal, is then the Respondent, as is anyone responding to a complaint under an Administrative Tribunal.

Political parties. Organizations allied by a common political philosophy designed to serve the interests of particular groups in society. Official Parties are registered, and some are accorded special status because of the number of members they elect to the legislature or House of Commons. Political parties that elect the majority of members to the Legislature or House of Commons automatically get to form the government, Cabinet, and pick the leader who will act as Prime Minister or Premier.

Provincial courts. Courts created by provincial statute, staffed by judges appointed by the province to deal with matters such as small claims and minor criminal offences.

Puisne judge. A judge other than the Chief Justice.

Question of law. As opposed to a question of fact. Appeal Courts will only look at a lower court’s ruling if the issue is a question of law; a discrepancy in the lower court judge’s application of the law or interpretation of the law which may allow the litigant to appeal the case to the superior court.

Reference. A process by which the government refers a legal question or question about the constitution, such as the validity of legislation, to a court for the purpose of obtaining a decision of the court on the question referred. A Reference case is one that has no direct parties involved. For example, the Federal Government referred the question of same-sex marriage to the Supreme Court of Canada to determine what was constitutionally valid on that issue.

Respondent. Defendant in a court case.

Rule of law. The fundamental principle that no governments or persons are above the law, and that society is governed by laws that apply fairly to everyone. It is the basis of most basic human rights and rules about access to justice. Originates to the Magna Carta signed by King John of Britain and a group of members of the aristocracy.

Senate. A legislative branch of Parliament made up of members appointed by the Governor General on the recommendation of the Prime Minister. The Senate can initiate any bills except bills providing for the expenditure of public money or imposing taxes. It can amend or reject any bill whatsoever. 

It can reject any bill as often as it sees fit. No bill can become law unless it has been passed by the Senate.

However, for over 40 years the Senate did not reject a bill passed by the House of Commons, and very rarely insisted on an amendment that the House of Commons rejected. Then, in 1988, it refused to pass the Free Trade Agreement until it had been submitted to the people in a general election. In 1989-90, it insisted on amendments to an unemployment insurance bill, amendments the Commons rejected; the Senate eventually passed the bill as submitted by the House. And in 1991, the Senate simply defeated a Commons bill respecting abortion. In other cases, the Senate has not adopted bills before the end of a session, thereby effectively stopping them from becoming law.

Separation of powers. The separation of powers between executive, legislative, and judicial branches of government. Can also refer to the division of powers between the provincial and federal governments as defined in the Constitution.

Superior court. Higher courts whose judges are appointed by Canada, particularly the Supreme Court of Canada, the Federal Court of Canada, the provincial courts of appeal and the senior trial court in each province (i.e. the BC Supreme Court and the BC Court of Appeal).

Transcript. A written copy of the spoken proceedings of the court, or hearings.