IMPR101

19 Legal Terminology terms

Balance of Probabilities: Rule about the proof of facts. The party with the burden of proof, usually the plaintiff except in certain matters before the Ontario Labour Relations Board, must persuade the court or tribunal that the facts in dispute are more likely than not to have occurred. A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.
Case Law: The law in Canada is made of two parts: Case law and Legislation. Both are primary sources for Canadian law. Case law is made up of the written decisions of judges in court cases and tribunals. Case law comes from all levels of courts in Canada. In the common law in Canada, judges must follow the principle of "stare decisis", which requires that judges follow the previous rulings (i.e. precedents) of other judges in higher courts in their province or territory and the Supreme Court of Canada on the same issue. Decisions from the same level of court or other provinces or jurisdictions may assist judges in reaching a decision. The body of case law is comprised of these decisions.The use of "stare decisis" and precedent in Canadian law promotes the principle that the law should be applied consistently throughout Canadian Courts. Leading cases are those decisions that have been cited and followed in subsequent cases. In Canada decisions of the Supreme Court are binding on all other Canadian courts unless distinguished. Prior to 1949, Canadian Supreme Court decisions could be appealed to the Judicial Committee of the Privy Council (J.C.P.C.) in the United Kingdom, and decisions from J.C.P.C. up until 1949 can still be binding on all Canadian courts. Case law from other Commonwealth jurisdictions can also have persuasive authority, particularly those from the English House of Lords or Court of Appeal, and the Australian High Court. Decisions from non-Commonwealth jurisdictions may also have persuasive authority depending on the level of court of the decision, the reputation of the judge and the jurisdiction involved, decisions from the United States Supreme Court are one example.
Citizen: Citizenship Act 1985 s.2(1) - A citizen is a citizen Part I s.3- outlines by birth, grant or other means (grandparents, adoption etc. IRPR: "means a citizen referred to in subsection 3(1) of the Citizenship Act."
common law: Relies for its authority on the decisions of the courts, reflected by precedents established by the decisions of the courts, as distinct from statute law passed by the legislature. In all provinces other than Quebec, the primary source of private law is the common law. The law in areas not governed by statute consisting of the accumulation of rules made in judicial decisions. Once a rule is applied in a particular case, it becomes a precedent: all courts lower in the judicial hierarchy are bound to decide all subsequent cases in a manner consistent with this rule. The application of the rule from the precedent case to different facts in subsequent cases clarifies and refines the rule. As a result of this binding character of precedent cases, it is often said that common law is made by judges.
Constitution: The supreme law of Canada. The written Constitution includes three categories of instruments: i) the Canada Act 1982, which contains the Constitution Act, 1982 (which in turn includes the Canadian Charter of Rights and Freedoms); 2) thirty imperial or Canadian statutes and orders (such as the Constitution Act, 1867) set out by schedule to the Constitution Act, 1982; and 3) amendments to any of these instruments (of which there are presently eight). The Canadian constitution also includes unwritten rules, principles and conventions. Laws inconsistent with the Constitution of Canada are of no force or effect. Section 52(2) of the Constitution Act, 1982 defines it as including the Constitution Acts, 1867–1982, the Canada Act 1982, and thirty Acts and orders in the schedule to the Constitution Act, 1982.
Convention: An international agreement concluded between states or other entities enjoying international personality and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Under Canadian law, Canada's signature on a treaty indicates its commitment to seek legislative approval of the treaty terms, usually by Parliament or other relevant legislatures passing appropriate implementing legislation. Once legislation is passed, Canada may indicate its ratification of the treaty -- that is, it may notify the relevant international organization (e.g. WIPO) that the treaty is now formally binding on Canada. Unless legislation is passed, the treaty does not form part of Canadian law.
Economic Immigrants: IRPA s.12(2): "A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada." IRPR s.70(2)(b): "the economic class, consisting of the federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the Canadian experience class, the federal skilled trades class, the Quebec investor class, the Quebec entrepreneur class, the start-up business class, the self-employed persons class and the Quebec self-employed persons class" IRPR Part 6 Economic Classes
Family Class: IRPA s.12(1): "A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident." IRPR s.10(4): "An application made by a foreign national as a member of the family class must be accompanied by a sponsorship application referred to in paragraph 130(1)(c)."
Federal System of Government: A governmental structure whereby the power to legislate is divided between various levels of government. Individuals are subject to the laws of both authorities, and the central and regional authorities’ powers must be independent from each other and not subject to being taken away, altered, or controlled by the other level. In Canada, the division of powers is between the Parliament of Canada and the ten provincial legislatures.
Foreign National: IRPA s.2(1): "a person who is not a Canadian citizen or a permanent resident, and includes a stateless person"
ICCRC: Acronym: Immigration Consultants of Canada Regulatory Council
Immigration: The action of coming to live permanently in a foreign country. Movement by choice as opposed to fleeing for one's life in the case of refugees or displaced persons.
Judicial Review: Technically, the subjection of a decision or action to judicial scrutiny but commonly also used to refer to the actual setting aside or quashing of that decision or action. The review by the courts of the legal validity of actions taken by the state. IRPR: s.24(2): "if the foreign national has filed an application for leave to commence an application for judicial review under subsection 72(1) of the Act with respect to a decision or removal order referred to in subsection (1), the foreign national may only make an application under subsection (1) after the earliest of the following: (a) the Federal Court refuses the application for leave, (b) if the application for leave is granted, the Federal Court refuses the application for judicial review and no question is certified for the Federal Court of Appeal, (c) if a question is certified for the Federal Court of Appeal, (i) an appeal to the Federal Court of Appeal is not filed within the time limit, or (ii) the Federal Court of Appeal dismisses the appeal and an application to the Supreme Court of Canada for leave to appeal from that decision is not filed within the time limit, (d) if an application is filed with the Supreme Court of Canada for leave to appeal, (i) the application is refused, (ii) the application is granted and an appeal is not filed within the time limit, or (iii) the Supreme Court of Canada dismisses the appeal, and (e) the foreign national discontinues their application for leave to commence an application for judicial review, application for judicial review, appeal to the Federal Court of Appeal, application to the Supreme Court of Canada for leave to appeal or appeal to the Supreme Court of Canada, as the case may be."
Paramountcy: The principle of judicial review stating that a valid federal law will prevail over a valid but inconsistent provincial law. The provincial law is rendered inoperative to the extent of the inconsistency.
Permanent Resident: IRPA s.2(1): "A person who has acquired permanent resident status and has not subsequently lost that status under section 46." IRPR Part 2 s.6: "A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa"
Protected Person: IRPA: s.95(2): "A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4)." s.21(1): "Refugee protection is conferred on a person when: (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection." IRPR: s.12.1(j): "a protected person, within the meaning of subsection 95(2) of the Act" s.12.2(d)(iii) "a member of the Convention refugees abroad class or a member of a humanitarian-protected persons abroad class"
Regulations: Refers to federal regulations (enacted since the most recent consolidated version of the regulations) in the Canada Gazette Part II. In French, it is abbreviated DORS and stands for “Décrets, ordonnances et règlements.” Legislation enacted by the government ordinarily only where a particular statute authorizes the government to enact such regulations. Since the statute usually speaks of delegating the power to enact regulations to a Minister, to Cabinet or to an appropriate statutory body, regulations are often referred to as delegated legislation.
Statutes: A law passed by Parliament or a provincial legislature (also called an Act). A bill that has been approved or “read” three times by the Parliament or legislature and signed into law by the queen’s representative (the governor general or lieutenant governor). A written law debated and voted upon by elected officials. Statutes can be amended or repealed, so it is critical to ensure that one is consulting an up-to-date version of the statute.
Ultra Vires: Latin: "Beyond the powers" Opposite: Intra Vires: within lawful authority. Outside the scope of lawful authority. A finding by a court that a statute or public decision is beyond the powers conferred by the Constitution of Canada on the body purporting to make it. The consequence of a finding of ultra vires is invalidity. Regulations too may be ultra vires the statute they are made under.