Canadian Legal Glossary

Plain-language definitions of 50 Canadian legal terms most often tested in JD programs and the NCA challenge exams. Cross-referenced with case briefs throughout the library.

Aboriginal

Aboriginal title: A sui generis interest in land arising from indigenous occupation prior to assertion of European sovereignty. Includes the right to exclusive use and occupation, with an inherent limit (Delgamuukw, Tsilhqot'in).
Duty to consult: The Crown's duty to consult and accommodate Aboriginal peoples whose asserted (not yet proven) rights may be adversely affected by Crown conduct. Triggered by knowledge of a potential right (Haida Nation).
Existing aboriginal rights: In s.35(1), rights not extinguished by clear and plain Crown intention before 17 April 1982. Existing rights survive in their unencumbered form (Sparrow).
Honour of the Crown: A constitutional principle requiring the Crown to act honourably in dealings with Aboriginal peoples. Underpins the duty to consult and treaty interpretation.
Inherent limit: Aboriginal title cannot be used in ways inconsistent with the group's attachment to the land (Delgamuukw).
Sparrow framework: Two-step analysis under s.35(1): (1) prima facie infringement of an existing Aboriginal right; (2) Crown justification (valid objective + honour of the Crown including priority, minimal impairment, consultation).
Sui generis: Of its own kind. Used to describe Aboriginal title (distinct from common-law fee simple) and certain other legal categories.
Treaty rights: Rights protected by s.35 deriving from formal agreements between the Crown and Indigenous nations. Interpreted liberally; ambiguities resolved in favour of Indigenous parties (Marshall).

Administrative

Doré framework: For administrative decisions engaging Charter values, the decision-maker must proportionately balance the value with statutory objectives. Reviewed for reasonableness, not under Oakes (Doré).
Reasonableness (Vavilov): The presumptive standard of judicial review of administrative decisions. Asks whether the decision is justified, transparent, and intelligible (Vavilov).
Vavilov framework: The post-2019 standard-of-review framework: reasonableness presumed; correctness in five categories.

Charter

Analogous ground: A personal characteristic, immutable or constructively immutable, shared by a group historically subject to disadvantage. Recognised analogous grounds include sexual orientation (Egan), marital status (Miron), citizenship (Andrews) and Aboriginal identity off-reserve (Corbiere).
Charter: The Canadian Charter of Rights and Freedoms — Part I of the Constitution Act, 1982. Subject to s.1 (reasonable limits) and s.33 (notwithstanding clause).
Charter values: The values underlying Charter rights, which inform development of the common law in private litigation (Hill v Church of Scientology) and proportionate balancing in administrative decisions (Doré).
Grant test: Three-factor test under s.24(2) for excluding evidence: (1) seriousness of breach; (2) impact on accused's Charter-protected interests; (3) society's interest in adjudication on the merits (Grant).
Jordan ceiling: Presumptive ceilings on net trial delay under s.11(b): 18 months in provincial court, 30 months in superior court (Jordan).
Minimal impairment: The third step of the Oakes proportionality analysis. The means must impair the right no more than reasonably necessary to achieve the objective.
Notwithstanding clause: Section 33 of the Charter — permits Parliament or a provincial legislature to enact legislation operating notwithstanding ss.2 and 7-15 for renewable five-year terms.
Oakes test: The s.1 proportionality framework: pressing and substantial objective + rational connection + minimal impairment + proportionality of effects (Oakes).
Principles of fundamental justice: Substantive principles in s.7 including arbitrariness, overbreadth, gross disproportionality, and the principle that the morally innocent should not be punished (BC Motor Vehicle Reference; Bedford; Carter).
Reasonable hypothetical: Methodology under s.12: assess constitutionality by reference to reasonably foreseeable applications, not just the case before the court (R v Smith 1987; refined in Nur and Hilbach).
Reasonable expectation of privacy: The s.8 touchstone for whether a state intrusion engages Charter scrutiny (Hunter v Southam).
Trial within reasonable time: Section 11(b) of the Charter. Governed by the Jordan presumptive-ceiling framework.

Constitutional

BNA Act: British North America Act 1867 — now called the Constitution Act, 1867. Source of the federal-provincial division of powers.
Constitutional convention: A binding political rule of constitutional behaviour, recognised by courts but not enforced as law (Patriation Reference).
Living tree: The Constitution is a living tree capable of growth and expansion within its natural limits. Foundational interpretive principle (Edwards/Persons Case; Hunter v Southam).
Patriation: The 1982 process by which Canada acquired full constitutional independence from the UK Parliament, accompanied by the Charter and amending formula (Patriation Reference).
Section 96: Constitutional provision reserving federal appointment of superior-court judges. Limits provincial creation of substitute tribunals.

Contract

Good faith: An organising principle of Canadian contract law that underpins existing doctrines and supports incremental development. Includes the duty of honest performance (Bhasin) and constraints on discretion (Wastech).
Promissory estoppel: Equitable doctrine: an unambiguous representation that strict legal rights will not be enforced + reasonable reliance + detriment (Saskatchewan River Bungalows).

Corporate

Oppression remedy: Section 241 CBCA. Protects reasonable expectations of stakeholders against conduct that is oppressive, unfairly prejudicial, or unfairly disregards their interests (BCE).

Criminal

Absolute liability: Liability without proof of fault. In criminal law, unconstitutional under s.7 if combined with imprisonment (Reference re BC Motor Vehicle Act).
Gladue principles: Sentencing judges must consider the unique systemic and background factors of Indigenous offenders and culturally appropriate sanctions (Gladue; Ipeelee).
Stinchcombe disclosure: The Crown's duty to disclose all relevant non-privileged information to the defence in indictable matters (Stinchcombe).
W(D) instruction: Three-step jury charge on competing testimony where the accused testifies (R v W(D)).

Equity

Constructive trust: An equitable remedy imposed where the elements of unjust enrichment are met and the plaintiff has a sufficient link between contribution and a specific asset (Pettkus v Becker; Kerr v Baranow).
Fiduciary duty: A duty of loyalty owed where the relationship features power/discretion, ability to affect the beneficiary's interests, and particular vulnerability — usually with an undertaking of loyalty (Hodgkinson; Galambos).

Family

Joint family venture: A framework for unjust-enrichment claims by unmarried cohabitants. Indicia: mutual effort, economic integration, actual intent, priority of the family (Kerr v Baranow).

Federalism

POGG: Peace, Order and Good Government — Parliament's residual power in s.91 of the Constitution Act, 1867. Three branches: gap, emergency, national concern (GHG Reference).
Section 91 / Section 92: The federal (s.91) and provincial (s.92) heads of power in the Constitution Act, 1867. Source of all federalism analysis.
Ultra vires: Beyond legal authority. A statute is ultra vires its enacting legislature if it exceeds the assigned head of power (Securities Reference).

Limitations

Discoverability: The principle that limitation periods run from the date the plaintiff reasonably ought to have discovered the material facts (M(K) v M(H)).

Practice

Headnote: A summary at the start of a reported judgment, usually written by court reporters or law-publisher editors. Authoritative for SCC decisions.
McGill 9e: The Canadian Guide to Uniform Legal Citation (9th edition) — the standard Canadian citation guide. Bilingual.
Neutral citation: Court-issued citation independent of any reporter, e.g. 2014 SCC 71. Standard for cases since the early 2000s in Canada.

Quebec

Quebec civil law: The civil-law tradition applicable to private law in Quebec, codified in the Civil Code of Quebec (CCQ). Public law in Quebec remains largely common-law.

Restitution

Unjust enrichment: Three-element framework: enrichment + corresponding deprivation + absence of juristic reason (Pettkus; Kerr; Garland).

Tort

Anns/Cooper test: Two-stage test for novel duties of care: (1) foreseeability + proximity; (2) residual policy considerations (Cooper v Hobart).
Proximity: The first stage of Anns/Cooper. A relationship of sufficient closeness considering expectations, representations, reliance, statutory framework, and the interests engaged.
Residual policy considerations: Stage 2 of Anns/Cooper. Even if proximity exists, a duty may be negated by considerations such as indeterminate liability or conflict with statutory duty.