Judges Make Law Too

Most people understand that laws are created by governments creating them. We leave it up to Parliament in Ottawa or the provincial Legislature in Winnipeg to pass Acts and Regulations that are written laws. We can all read through the Criminal Code or the Highway Traffic Act and read about what behaviours are illegal. We can look at the Divorce Act or The Family Property Act and read what the rules are when a couple separate.

However law is also created by Judges. 

Judges make law in two ways:

1.    First, Judges can decide that a certain action will become a "tort". A tort is a wrongful action that can result in legal liability. For example, breach of contract, negligence, defamation and intentional infliction of emotional distress are torts that have existed for decades. 

Some of the newer torts that Judges have created in recent years include breach of privacy, online harassment and the tort of family violence. 

What this means is that if someone has breached your privacy by accessing your email account, you can sue them for damages. If someone has been harassing you online, you can sue them for damages. If you have suffered harm from domestic violence, you can sue for damages. 

Just a few years ago, you could sue your former spouse if they caused financial damage to you because they defamed you by spreading lies about you. You could not however sue them for their acts of domestic violence against you. But after a Judge decided there should be a tort of family violence, now you can sue for that. The Judge created law.

2. Second, Judges create law by providing their interpretation of the written laws. 

For example, the Child Support Guidelines are written law. Most of it is very specific but the Judges have created some subtleties. For example, the Supreme Court decided that retroactive child support can be ordered, back to even before the court case started. The Manitoba Court of Appeal decided there are three tests to be applied before child support is ordered for adult children in university. 

When a Judge creates law, it is binding on Judges in all courts below it. Law made by the Manitoba Court of Appeal is binding on the Court of King's Bench Judges. Law made by the Supreme Court of Canada is binding on all the other courts.

The problem with the Judge-made law is that it's ever changing and it can be hard to find. Unless we all do research and review all the new court cases as they come out, we may not know what this Judge-made law is. 

For that reason, the lawyer's most common answer to most of the questions she is asked is, "Well, it depends .  . ."