Achieving Unity in the Interpretation of Federal Private Law:
Legal Framework and Fragments of Judicial Discourse

Philippe Denault ©

I. Interpretation of Federal Legislation in the Absence of Formal Unity of Federal Private Law

Interpretation of a statutory provision is necessary when the meaning of the provision, its normative content, is unclear to its subject. The norm is then tainted by vagueness.[33] When a provision of federal private law is uncertain or incomplete, the vagueness of the normative content can be resolved by referring to various reference systems. The interpreter can confine the analysis to the text of the legislation itself and the language and contextual components it contains, or can look to the entire corpus of legislation containing similar provisions. Apart from the text, they can also refer to the meaning of a norm in one of the legal traditions that serves as suppletive law. In all these cases, the interpreter plays a suppletive role in respect of the deficiency in the private law provision. Their intervention is subject to other choices, however, because apart from the diversity of the reference systems-language, law, legislative corpus, tradition-there is a diversity of principles of interpretation that favour reference to one or another of those systems. The interpreter can then be guided, in turn, by constitutional principles (division of powers, official languages, limits on judicial authority, etc.), by ordinary principles of statutory construction (the golden rule, the mischief rule, etc.) or by the principles of interpretation relating to complementarity, which derive from the first two.

The dual role of the interpreter, in relation to the reference systems or principles of interpretation, highlights a fundamental aspect of federal private law: the plurality of its formal sources.[34] As we noted earlier, an interpreter who cannot determine the content of a private law provision by referring to the text or the federal legislative corpus can refer to the meaning of a norm provided by one of the legal traditions that serves as the general law. For historical and constitutional reasons, those traditions are components of the provincial legal systems. A suppletive relationship is therefore created, in some circumstances, between the two distinct formal sources of private law: federal legislative sources and provincial sources of law. It is that interaction between federal legislation and provincial private law that we will examine first here, in Section A, to demonstrate the absence of formal unity in federal private law.

Another fundamental aspect of federal private law is highlighted by the dual role alluded to earlier. When the interpreter is faced with a private law provision that is incomplete or uncertain, they must choose among various reference systems and principles of interpretation. That choice itself determines the content of the norm. Where the courts interpret a statutory provision, it may be difficult to make that determination, given that it must be made in the context of the constitutional separation of powers, which in theory limits the judge's freedom in relation to the legislature. In Section B, therefore, we will examine the methods and powers available to judges for resolving vagueness in a federal private law provision. We will give particular attention to the judge's power to avoid referring to provincial law for suppletive purposes in unifying federal private law.

A. Absence of Unity: Interaction between Federal Legislation and Provincial Private Law

Where a federal private law provision is uncertain or incomplete, the interpreter may refer to provincial private law for suppletive purposes. In SubSection 1, we will explain how this power, which Parliament recognizes in the Interpretation Act,[35] can be explained by the historical and constitutional framework in which the formal sources of private law came into being and were distributed in Canada. In SubSection 2, we will explain how the effect of these historical and constitutional considerations is that there is no private law common law at the federal level, and accordingly reference may be made, for suppletive purposes, to provincial law norms, which in that event become separate and complementary formal sources. Ultimately, it is this interaction between federal legislation and provincial private law, this alternation between the two sources, that persuades us that there is no formal unity of federal private law and that it is in fact fundamentally plural.

1. Historical and Constitutional Framework

The Constitution of Canada[36] is the product of history and political compromise. The components of federal private law cannot be understood without first tracing the relationship between the legal traditions and their formal sources in the history and geopolitical space of Canada. Private law systems and legislative powers in relation to private law exist within an historical and constitutional continuum.[37] Under heading (a), we will first briefly explain how the European private law systems were received into the law in Canada and officially recognized within the Canadian legal system. Then, under heading (b), we will briefly consider how, under the Constitution Act, 1867,[38] legislative jurisdiction over private law was assigned, in the first instance, to the provincial legislatures, with narrower powers assigned to the Parliament of Canada as the exception.

(a) Reception of Private Law

It is important to note at the outset that the private law systems that currently apply in Canada, under positive law, are not solely the result of the legislative powers assigned by the Constitution Act, 1867. Sections 91 and 92 of that Act merely distribute "legislative powers"[39] to the Parliament of Canada and the provincial legislatures, respectively. Because the private law systems that currently apply in Canada are not composed only of statutory norms or of norms that are subsequent to the federation,[40] we must consider, in particular, the reception of the European legal traditions into Canada and the recognition and transformation of the norms that were received as the various constitutional statutes were enacted.[41] For the purposes of this exercise, given that our objective is to demonstrate the plurality of the formal sources of federal private law, we will discuss only the general aspects of this legislative genealogy in the case of the two founding provinces of Canada, Quebec and Ontario.

The private law of the European legal traditions was received into Canada when colonies were established, conquered or ceded by the colonial powers, France and England.[42] Because all of the four original provinces of Canada had been part of the United Kingdom, as colonies, we must look to the common law to determine the rules of reception in English law. In a nutshell, those rules provided that the colonies established by the United Kingdom brought English law with them, while colonies acquired by conquest or cession retained their original law, except for rules relating to government. However, those rules of reception are not sufficient if we wish to determine what system of law applied in a British colony, since we must also consider "adoption" measures taken by colonial authorities and "imposition" measures taken by the sovereign or by imperial authorities.[43]

Quebec is certainly the most interesting case, from our standpoint, since it is the only Canadian province that has retained law of French origin until today. This genealogy, which began with the establishment of a French colony, was not without its interruptions and disruptions, however.[44] When Samuel de Champlain established a French colony at Quebec City in 1608, French law was received for the first time in the territory that is now the province of Quebec and the province of Ontario.[45] Later, the Royal Ordinances of 1663 and 1664, creating the Compagnie des Indes Occidentales, operated to formally impose the "laws and ordinances" of the Kingdom of France, and more specifically the Coutume de Paris, in the colony of New France.[46] The substance of the private law of New France after formal reception varied somewhat from French law, but in general followed it closely. In addition to the problem of the formal reception of the royal ordinances and subsequent transformations of French law, we must consider the measures taken by the Sovereign Council of New France and other local authorities, and specifically judicial authorities, in the administration of the colony.[47]

The formal hold of French law in New France continued to expand until the conquest of the colony by the British Crown. Although conquest should not have resulted in imposition of English law, as provided by the common law rules governing reception law to which we referred earlier, that is in fact what happened following the Treaty of Paris on February 10, 1763, and the Royal Proclamation of October 7, 1763.[48] The Royal Proclamation operated to temporarily interrupt the continuity of French law within "Quebec" by instituting courts established to hear "all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England".[49] That was the situation that prevailed until the Quebec Act, a statute enacted by the British Parliament in 1774 to resolve the instability and threats hanging over the colony.[50]This foundational statute gave the subjects of the "Province of Quebec" the right to enjoy their own property, customs and other civil rights as if the Royal Proclamation and all measures subsequent to it had not been made.[51] Cancellation of the effects of the Royal Proclamation and restoration of the former law meant: "in all Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, as the Rule for the Decision of the same".[52] That provision would apply only as long as the laws and customs of Canada were not amended by the local authorities, on the advice of the Legislative Council of the colony. In addition, the Quebec Act expressly preserved English law in respect of the criminal law, the principle of testamentary freedom and the granting of land to be held in free and common soccage.

The fate of the former law within Quebec was then sealed, in terms of private law.[53] As may be seen, however, although that private law had been restored, it had still been altered in certain specific respects, and it would then be able to continue evolving through legislation adopted by the Crown, the British Parliament or local authorities, or through the case law.[54] It is not useful for our purposes, in the case of Quebec, to consider this further and analyze in depth the evolution and formation of Quebec civil law up to the 1866 codification and the Constitution Act, 1867. Suffice it to note that while the predominantly French nature of the civil law, French in origin as it was, was preserved, it became a mixed system of law in several respects during that period,[55] and that civil law continued to be a formal source of private law in Quebec notwithstanding those transformations and the subsequent constitutional enactments in 1791 and 1840.[56] These constitutional arrangements, as a result of which the Province of Quebec was successively the "Province of Lower Canada" and then, in the Union of 1840, "Part of the Province of Canada" (also called "Canada East", or "Lower Canada"), preserved the unity and continuity of the private law received from France within the same territory.[57]Notwithstanding numerous legislative or judicial actions as a result of which English law was introduced into Quebec, particularly in relation to commercial law, no effort was made to replace the entirety of the civil law.[58]

This was not the case in Ontario, where the reception of private law was much more clear-cut than in Quebec. By dividing the Province of Quebec into the Province of Lower Canada and the Province of Upper Canada, the Constitutional Act, 1791 gave the new provinces the ability to repeal or amend the existing legal system that was expressly preserved by the Act,[59] and so the emergence of Upper Canada as a distinct political and legal entity quickly led to the enactment of a statute formalizing the coming into force of English law in that province, in 1792.[60] In cultural terms, that statute can be explained, in particular, by the arrival in the province of large numbers of Loyalists fleeing the American Revolution. Subjects who were of Anglo-British ancestry, loyal to the English Crown and its institutions, cut off from English law and present in growing numbers in the region, began to call both for their own Assembly and for the governing law of their own homeland.[61] As a result, the first statute enacted at the first session of the Parliament of Upper Canada provided for the repeal of the specific provision of the Quebec Act that had restored the application of the "laws of Canada" in relation to property and civil rights, as it applied to the province.61a Except for cases before the courts, ordinances previously made in the province of Quebec, and certain other matters, including bankruptcy, English private law was to apply henceforth in the province of Upper Canada, under this now sacrosanct formulation: "... from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same".[62] While the reception of European law in Ontario initially took place indirectly or "secondarily", by way of the Constitutional Act, 1791, it was then brought about, for English law in its entirety, by legislative "adoption".[63] There was no change to the origin of the applicable private law thereafter, notwithstanding the Union Act, 1840.[64]

To summarize, we see that the private law systems that apply today in Quebec and Ontario were not received, and have not evolved, in the same manner. We need only consider the fact that the formal entry of the European traditions into the two provinces occurred at different times and by different processes, in terms of the substance of the applicable rules. Notwithstanding the hybridization of private law in Quebec, and the traces that may have remained of the law in force before 1791 in Ontario, the two private law systems are clearly based on two distinct foundations and have two separate genealogies. This fact alone determines the systemic unity of their private law and each one's specific framework of formal sources. In fact, the same is true in the other provinces of Canada, in which cases we have not examined the history of the reception of the law, but which each have their own experience while they were French or English colonies.[65] We can therefore say, with certainty, that when the colonies of British North America came to the Canadian federation they instituted within it a plurality of formal sources of private system.

(b) Division of Powers

What became of the colonies' private law systems once they became part of the Canadian federation? As the Constitutional Act, 1791 and the Union Act, 1840 had done,[66] the Constitution Act, 1867[67] provided for the continuity of the existing law. The provision set out in Section 129 was essentially designed to avoid a legal vacuum and to preserve, in the four provinces of Canada, the law in force before the union and the judicial system corresponding to that law, and in particular the courts of civil jurisdiction.[68] That provision reads as follows:

129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless ..., to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

It will be seen from the two underlined passages of that provision that pre-Confederation law and the judicial system were continued as they then were ("shall continue ... as if the Union had not been made") in the four provinces specifically named ("in Ontario, Quebec, Nova Scotia, and New Brunswick respectively"), and that the Parliament of Canada or provincial legislatures were then able to amend or repeal the pre-Confederation law thus continued, as it came within their respective legislative powers. What this means is that Canada did not receive the law of the colonies under the Constitution Act, 1867,[69] and that we must refer to the division of powers and subsequent enactments by the Parliament of Canada to determine the content of any specifically federal private law rules.[70]

Thus, in technical terms, the various pre-Confederation laws that were continued in the provinces applied to federal matters, where the Parliament of Canada had not yet provided for any private law rule for those matters.[71] The formal sources of federal private law were then at their most plural, and Parliament has only gradually adopted uniform private law rules in the various areas under its authority.[72] Notwithstanding the enactments adopted to achieve uniformity, we must again stress that federal private law is not based on any formal reception of pre-Confederation private law rules into the federal legal system. The concern evidently being historical and constitutional continuity, the territorial base of those systems continued to be in the provinces. Although they thus lost large elements of their unity, as a result of various private law powers being assigned to the Parliament of Canada and the subsequent exercise of those powers,[73] the pre-Confederation private law systems were continued in the provincial sphere by Section 129 and received formal constitutional recognition through the general jurisdiction assigned to the provinces.

The provinces' jurisdiction over "Property and Civil Rights" is set out in subSection 92(13) of the Constitution Act, 1867. That "exclusive" jurisdiction is considered to be "general" because, apart from the exceptions set out in Section 91, it covers all private law in a province, including the pre-Confederation law continued in that province.[74] We have considered the expression "Property and Civil Rights" itself by referring to the literature examining its historical and constitutional genealogy. We would note only that the expression has particular importance in the context of the negotiations leading up to Confederation in 1867.[75] The issue for the representatives of Canada East, including George-Etienne Cartier, was to protect the civil law heritage received at the time of the French colony and later formally recognized by the Quebec Act of 1774.[76] That intention is also apparent in Section 94 of the Constitution Act, 1867, which does not affect the province of Quebec in terms of the powers of the Parliament of Canada to legislate for uniformity in relation to "Property and Civil Rights". Ultimately, we can say that the expression as it is used in subSection 92(13) is not accidental, and is intended to cover all provincial private law that is not specifically covered by a power of the Parliament of Canada. It is, in a way, a general jurisdiction, and even, by consensus of opinion, the most important power of the provinces.

On the question of the meaning or content of the expression and the correlation between the expression and the concept of "private law", we can refer both to the interpretation of the expression for constitutional documents from before 1867 and to interpretation since that date, in relation to the division of powers. In constitutional documents from before 1867, the words "Property and Civil Rights" are ordinarily given the meaning they had in English statute law at the time of the Quebec Act.[77] The expression therefore covers the principal aspects that are recognized today as falling within private law, and in particular those relating to contracts and liability, not only matters relating to real property.[78] In this sense, the expression contrasts with the various aspects of public law as we understand it today.[79] On the question of interpretation after the Constitution Act, 1867, the courts and legal authors have given the expression a broad meaning that essentially corresponds to the historical meaning, subject to the matters provided for in Section 91.[80]

Although it may well be of little value or wisdom to assign a definition in the abstract,[81] and drawing any exact line between public law and private law is a complex undertaking, the general meaning of the area of property and civil rights is summarized by Professor Hogg as follows:

... subject to the qualifications required by the new federal scheme, it is clear that the framers of the Constitution Act understood the familiar phrase in the same sense it obtained in 1792 and 1774, that is to say, as a compendious description of the entire body of private law which governs the relationships between subject and subject, as opposed to the law which governs the relationship between the subject and the institutions of government.[82] (Emphasis added.)

On the question of the provinces' jurisdiction, the expression "Property and Civil Rights" has thus been interpreted liberally, to include any matters that fall within the general category of private law, with the exception of those assigned to the Parliament of Canada. In Quebec, those matters are primarily covered by the civil law tradition,[83] while in the other provinces they essentially correspond to the common law tradition.

The exceptional jurisdiction assigned to the Parliament of Canada in relation to private law matters significantly reduces the general jurisdiction of the provinces in relation to property and civil rights. Section 91 of the Constitution Act, 1867 contains a detailed list of the multiple powers that correspond to the private law category and that, were it not for the list there, would ordinarily have fallen to the provinces.[84] On the question of federal jurisdiction over private law, some general examples are the matters expressly set out there in relation to trade and commerce (subs. 91(2)), banks and savings banks (subss. 91(15) and 91(16)), bills of exchange and promissory notes (subs. 91(18)), interest (subs. 91(19)), bankruptcy and insolvency (subs. 91(21)), patents and copyrights (subss. 91(22) and 91(23)), and marriage and divorce (subs. 91(26)).[85] We might also consider any other private law power that may be implicitly assigned to Parliament.[86] In addition to and more importantly than identifying the headings, however, we must acknowledge that it is these diverse federal powers, given their nature as exceptions, that, as a whole, determine the exact shape or outline of the provinces' general jurisdiction in relation to private law.[87]

Thus we see that there is a very close relationship or connection between federal powers and the general jurisdiction of the provinces.[88] Federal powers are superimposed on provincial jurisdiction, while provincial powers, being general, allow the provinces to fill gaps or interstices left by federal legislation.[89] Generally speaking, this close and complementary relationship at all levels creates a mutual dependence between federal private law and provincial private law.[90] The rule of exhaustiveness in the division of powers means that it is difficult for one to exist without the other.[91] However, the degree of dependence, or, from the opposite perspective, the degree of autonomy of federal private law legislation cannot be assessed without defining the nature and scope of Parliament's powers in that regard. Those powers will vary in importance, depending on the subject matter and the legislation in question, and accordingly we must determine how they are exercised in practice in relation to the provinces' general jurisdiction. Under the applicable constitutional principles, a power belonging to Parliament will occupy some portion of the private law field. This, in return, will determine the extent to which it is necessary to refer to provincial sources for suppletive purposes, and ultimately the extent of the provinces' general jurisdiction.[92]

On the question of the principles that can be used to determine the nature and extent of federal legislative powers in relation to private law, we need not do any detailed analysis here. In the context we have discussed, we need only briefly mention the principles that can be used to establish either exclusive jurisdiction or overlapping powers. The powers set out in sections 91 and 92 of the Constitution Act, 1867 are, as a rule, assigned exclusively to the provincial legislatures and Parliament. However, it has been recognized that there may be overlap between legislative powers. When the purpose of legislation is to be determined, a measure that "affects" a matter under the authority of another level of government may be found to be valid, notwithstanding the principle of exclusivity.[93] Similarly, on the question of how private law measures are to be characterized, the importance of the double aspect theory, as opposed to the theory that legislative powers are watertight, has been noted.[94] The double aspect theory allows for overlap and for the exercise of shared powers, while reflecting the inter-related nature of private law systems in a federal context.[95]

Overlap is also possible when we adopt a perspective based on the exclusivity of powers. Powers in respect of private law may be exercised by the Parliament of Canada in the exercise of its incidental powers.[96] Parliament may thus intrude upon the general provincial jurisdiction by enacting legislation that does not strictly correspond to its principal exclusive powers, but are incidental to the exercise of those powers.[97] If there is a provincial enactment of the same nature that corresponds to the provinces' general jurisdiction in relation to property and civil rights, federal paramountcy will allow for the exercise of the incidental powers and will avoid conflict by rendering the provincial enactment inoperative.[98] It should be noted, however, that if there is no conflict, the enactments may continue to apply and will supplement each other.[99]

There are other theories that can be used to define federal private law powers even more firmly or restrictively. These include, in particular, the "occupied field" theory in relation to the compatibility of legislation and the "interjurisdictional immunity" theory in relation to the applicability of legislation.[100] The first expands the idea of operational conflict between two enactments, in that it allows the court to conclude that legislator's intent would be frustrated by legislation that is otherwise valid, that intent being more or less to enact a "complete code" and exhaustively occupy the field.[101] The aim of the second is to protect a power when the effect of a valid general enactment, if it were applied, would be to touch on vital or essential aspects of a power assigned to the other legislative level.[102]

In the second part of this study, we will identify a number of decisions in which one of these constitutional principles has been cited. At this point, we will note only that those principles can be used to modulate the levels of interaction between federal private law and provincial private law, and thus to determine the degree of autonomy that the former enjoys from the latter and the extent of the uniformity or diversity. While there may be cases in which federal paramountcy operates to uphold an incidental power, cases where the entire private law field is occupied by a federal enactment so that it is completely watertight against provincial law, and cases where a provincial enactment is rendered inoperative because it affects the core of federal jurisdiction, we must still recall that there is no theory under which Parliament may legislate exhaustively and generally in relation to the private law that applies in a province, since primary jurisdiction in relation to property and civil rights is assigned "exclusively" to the provinces by subSection 92(13) of the Constitution Act, 1867. As we noted earlier, the colonial private law systems were not continued in the federal legal system. In addition, there is no requirement of uniformity in federal law in the Constitution of Canada.[103] Given this plural federal context, if all aspects of private law in all possible cases are to be covered, reference must necessarily be made to provincial law in its supplementary capacity.

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