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

II. Strategies for Unifying Federal Private Law

B. Procedures for Determining Uniformity in Application of Legislation

As paradoxical as it may seem, uniformity in the sources of federal private law legislation may be achieved from the standpoint of its end results. When an interpreter is dealing with an enactment whose meaning could derive from a diversity of sources, they sometimes conclude that there is in reality only one possible or desirable meaning, considering, for example, the objectives, scope or effects of the legislative provision. The circularity of that process, which moves from the end results to the original intention, its comprehensiveness, if we consider that the effects of the legislation ultimately go back to its intrinsic dimensions (the conception of its sources), is an essential characteristic of legal interpretation.[361] We therefore cannot close the loop of our analysis without a second examination, of unification procedures that, rather, involve the application of federal legislation. Those procedures consist in referring to (a) the principle of equitable application, (b) the object of the legislation, or (c) the authority of the legislature.

1. Unification Relating to Fairness: Equality of Individuals

Judges regularly cite the principle that federal legislation, and in particular tax legislation, must be applied uniformly throughout Canada so that all individuals are treated fairly. Considering our sample, the leading decision concerning the uniform application of tax legislation in Canada seems to be the Privy Council's decision in Minister of Finance v. Smith.[362] The issue in that case was whether the federal Income Tax Act could apply to income from smuggling alcohol, which had been declared to be illegal by provincial legislation. The Privy Council stated a principle that is subsequently found in decisions relating to provincial law:

Their Lordships can find no valid reason for holding that the words used by the Dominion Parliament were intended to exclude these people, particularly as to do so would be to increase the burden of those throughout Canada whose businesses were lawful. Moreover, it is natural that the intention was to tax on the same principle throughout the whole of Canada, rather than to make the incidence of taxation depend on the varying and divergent laws of the particular provinces.[363] (Emphasis added)

The principle was cited, in particular, in the decision of the Federal Court in Gervais v. Canada (M.N.R.)[364] in which the judge declined to extend the concept of a gift (don) in the Income Tax Act to indirect gifts permitted by civil law. The judge stated: "we are dealing with a taxing statute which must be applied in the same manner throughout Canada ... ."[365]. Smith is quoted verbatim in Doriga v. M.N.R.,[366] in which the Tax Appeal Board relied on the principle of uniformity to declare that the beneficiary of a trust in Quebec is a person "beneficially interested" in the common law sense and for income tax purposes.

Apart from the principle of uniform application "throughout the whole of Canada", there are a number of decisions that make more specific mention of the ethical dimension of the principle of uniformity. When the principle of "fairness" or "equal treatment" of taxpayers is asserted, the territorial dimension then seems to move into the background. In Dumais v. Minister of National Revenue,[367] Dube J. of the Federal Court concluded that the capital gain from the sale of an immovable property was taxable in the hands of the husband only, although he was part of a community of property under provincial law. The judge based his reasoning primarily on the principle of fairness that prevails in tax law.[368] In Rosenstone v. Canada (M.N.R.), the Tax Appeal Board stated, concerning the nature of the rights conferred by an emphyteutic lease, that for reasons of fairness the Income Tax Act had to apply generally throughout the country.[369] In the decision of the Federal Court in Marcoux v. Canada (A.G.), which examined the scope of the privilege of the federal Crown in a tax case relating to the rules against garnishment in Quebec civil law, Denault J. cited the principle of uniformity of tax legislation and the principle of "the equality of taxpayers before the taxation authorities".[370] And in Construction Berou[371] (a rich source of arguments on the issue of uniformity), in which the Federal Court of Appeal ruled as to whether the concept of "acquisition" could be applied to a leasing contract, Letourneau J. described Parliament's efforts at harmonization. In the judge's opinion, Parliament had "treated" the concept of "beneficial ownership" in the same way as civil law concepts "with a view to providing fair and equal treatment to all Canadian taxpayers", and on this point he added that judicial interpretation must allow for the implementation of that legislative intent.[372]

Considering the foregoing decisions, we might conclude that the principle of the equal treatment of taxpayers, in light of provincial law, originates in the principles of fairness that govern tax policy itself. Here we are referring, in particular, to the "principle of vertical equity" and the "principle of horizontal equity" that underlie tax rules, and that were examined by the Supreme Court of Canada in Symes v. Canada.[373] The principle of equal treatment seems to fit quite well with the principle of horizontal equity, which requires, to quote Iacobucci J., that "equals be treated equally" (the term "equals" referring, in his opinion, to "ability to pay").[374]

Although the principle of horizontal equity may have influenced the judgments we discussed earlier,[375] we are inclined to think that the principle is not entirely appropriate for analyzing the sources of private law in taxing statutes. More specifically, the principle of horizontal equity seems to correspond more to an economic analysis of the effect of tax laws.[376] It is therefore not certain that it could be applied to a determination of the suppletive law in relation to private law in the federal context, since that determination is subject to other legal considerations and, in particular, involves the division of powers. As evidence, the principle of equal or equitable treatment of Canadian citizens has been affirmed in other decisions that have nothing to do with tax law. In the judgments that made up our sample, for example, we see Droit de la famille - 608,[377] in which Mailhot J.A. (dissenting) considered that the term "unconscionable" which applies to matrimonial conventions did not refer to the concept of lesion, but to a concept of unreasonableness that underlies the Divorce Act and the application of that Act; otherwise, she said, [TRANSLATION] "it would mean, in divorce cases, treating divorced spouses who came from common law provinces differently from those who came from Quebec."[378] Second, we have also encountered the fairness argument in a decision of the Supreme Court in a maritime law case, in which the Court concluded that there was a tort liability scheme for pleasure boating.[379]

It is therefore possible that the principle of the equal treatment of individuals originates outside tax law, that it ultimately transcends all areas of law. It could be argued that it derives, rather, from the rule of law, one of the components of which is in fact that everyone is subject to the same law, under Dicey's classic theory.[380] It is outside the parameters of this study to do a more thorough examination of this complex hypothesis. It will be noted, however, as Professors Brun and Tremblay point out, that the equality of everyone before the law does not mean that the law is [TRANSLATION] "necessarily applicable to everyone in the same way".[381] As well, it should be noted, in respect both of the equality of taxpayers under tax law and of the equality of individuals under the rule of law, that the plurality of sources of federal private law draws its justification from the Constitution. The principle of individual equality should always be balanced against the constitutional principles that govern federalism.[382] As we said earlier, and as Section 94 of the Constitution Act, 1867 indicates, federalism in Canada does not carry any requirement of uniformity in federal private law.[383] It would therefore seem to us to be risky, to say the least, to state that the complementarity of provincial private law, in that it produces asymmetrical effects, is contrary to individual equality before the law for reasons that relate to fiscal fairness or the rule of law. Moreover, we know of no general principle of the interpretation of federal legislation that would require that this legislation apply in the same way to all individuals throughout Canada.[384]

2. Unification Relating to Purpose: Object of the Legislation

In a comprehensive approach, interpretation must always take into account the object of the enactment, or, more generally, its end result.[385] To quote the words of Section 12 of the Interpretation Act: "Every enactment ... shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects" (emphasis added). While the "object" may circumscribe the interpretation of an enactment ("as best ensures ."), it may also influence the meaning of the enactments. In examining legislation from the perspective of its effects or practical consequences, by putting it to the test of reality ("the attainment of "), the interpreter can establish the meaning or scope of the norm.[386] Through a kind of feedback mechanism, the end result of an enactment has a backward effect, so to speak, on its sources. It is in fact revealing, in our opinion, that the concepts of object and legislative intention are very often conflated in judicial discourse.[387] For these purposes, what it is important to note is that the "purposive" approach has been taken in a number of decisions to justify the uniformity of federal private law. Whether the court simply cites the "object of the legislation", which is then conceived of as unitary, or cites "practical reasons" or the "reality of the circumstances", the end result is the same, since the legislation is applied without regard to the variation or multiplicity of the bodies of suppletive provincial law. In fact, the reasoning is also applied where the issue is the origin of the suppletive sources.

In common law, as we have seen, the rules of interpretation of statute law may vary, depending on whether it is reform legislation or program legislation.[388] It is said that the purposive approach is more common for the latter type, which became increasingly frequent over the last century and may even have contributed to the emergency of that approach.[389] In any event, we have found a number of particularly significant decisions that have adopted that perspective and concluded that federal private legislation is uniform in areas where social or economic policy (and national dimensions) were central. In Canada 3000,[390] an interesting decision in that Section 8.1 of the Interpretation Act was argued, Binnie J. rejected the application of the civil law to determine the meaning of the concept of retention ("retain / retenir") used in the Civil Air Navigation Services Commercialization Act.[391] He relied, in particular, on the object of the Act and an analysis of the economic context of air navigation, in concluding that a statutory right of retention could be set up by suppliers of air navigation services to aircraft owners. On the question of the application of the civil law as suppletive law, Binnie J. cited the comprehensive code argument,[392] saying that "uniformity" in relation to aeronautics "is especially vital since aircraft are highly mobile and move easily across jurisdictions."

It may be no accident that this idea of jurisdictional uniformity has been raised in decisions that excluded provincial law in negligence actions in maritime law. Although these decisions primarily adopted a constitutional analysis, they also reduced the interpretation of legal sources of maritime law, ultimately, to practical considerations and efficiency. In Whitbread v. Walley, in particular, the Supreme Court concluded that "the very nature of the activities of navigation and shipping ... makes a uniform maritime law which encompasses navigable inland waterways a practical necessity."[393] To justify that uniformity, the Court also relied, "by analogy", on the cases decided in the area of aeronautics and on an "integration" test, which, in the Court's opinion, was not met in relation to railways.[394] The contextual analysis done by the judge also considers the sources provided by international conventions and ultimately concludes that a "geographic divide" in maritime law rules would "make little sense".

In tax law, end results have been cited as reasons, even though, traditionally, literal interpretation has prevailed in this area, in which the need for certainty is strong.[395] Purposive interpretation has not always been adopted from a standpoint of uniformity in the federal legislation,[396] but in some cases we have seen that it has been used to unify the sources of private law. Manrell is an interesting decision in this regard.[397] In that decision, which dealt with the definition of the word "property" in the Income Tax Act, and the possibility that the expression "right of any kind whatever" in that definition covers the "right to compete", the Federal Court of Appeal raised the purposive argument, as well as the ordinary meaning rule, as a basis for interpreting the legislation narrowly and ensuring uniform application:

The trend of recent Canadian jurisprudence is that fiscal legislation should be interpreted in a purposive manner, taking into account the desirability of consistency and certainty. It is not acceptable to stretch statutory language in a taxing statute in order to achieve what may appear to be a reasonable result in a particular case.

Although the issue here is to avoid variations caused by the diversity of particular cases, and not diversity arising from the application of provincial law, we still find a statement, from the standpoint of the end results of the legislation, of the principle of uniformity of tax legislation, because of its object.[398] We can deduce that the object of the taxing legislation should guarantee the same uniformity in relation to the variations that might occur if the various provincial laws were applied as suppletive law.

The effort to achieve uniformity based on the object of the legislation can be seen in other tax decisions where the ordinary meaning question arose. The parallel between the object of the legislation and the ordinary meaning in fact seems to us to be self-evident, since the two concepts refer to the more general idea that the enactment, in formal terms, must reflect the object it seeks to achieve. For example, this is what can be seen in two decisions relating to the concept of a gift and the concept of a sale, respectively. In the first, Littler,[399] Dubinsky J., dissenting, expanded the ordinary meaning of the concept of a gift and reconciled it with its legislative expression, to include gifts made by way of a sale or with consideration, in that case the sale of shares for less than market value. To that end, he cited the purpose of the Income Tax Act, which every Canadian easily understands, he says.[400] In the second, Will-Kare Paving, a majority of the Supreme Court relied primarily on the objective of Parliament and the contextual approach to give the concept of a sale in the Income Tax Act the technical meaning (plain meaning, in the strict sense) that prevails in commercial law. In dissenting reasons, Binnie J. also specified that the popular meaning (plain meaning, in the broad sense) that he preferred "accords with Parliament's consent" or the object of the legislation.[401]

We have identified decisions in other tax cases that cite end results arguments to ensure uniform operation of federal legislation. For example, it has been held that the "obvious purpose" of a legislative amendment to treat civil law concepts in the same way as beneficial ownership in common law was to extend to Quebec taxpayers the benefits given to taxpayers in common law provinces, and that the Court must therefore adopt "a judicial interpretation which allows for the implementation of this legislative intent".[402] As well, in a case on the concept of indefeasible vesting, a judge of the Federal Court of Appeal declined to apply a Saskatchewan statute the object of which was to deem, for all purposes, the effect of a will at the time of death, since those purposes could not, in his opinion, correspond to federal income tax. He concluded that the Income Tax Act could not be affected by the provincial provisions and had to be applied in the "realities of the circumstances", subject to its own directives.[403]

A pragmatic approach, oriented toward business practices and the intention of the parties, can also be seen in certain decisions that rely on a set of functional criteria to determine whether there is a contract for services or a contract of employment.[404] As well, the unification process relating to end results also seems to us to be applied in the decisions dealing with a uniform concept of a "charity", the definition of which must "always be in tune with social and economic developments".[405] A decision of the Federal Court of Appeal, from which an appeal was dismissed by the Supreme Court for similar reasons, also concluded that it is not "necessary" to refer to provincial law (in that case, a decision of the Ontario Court of Appeal) under Section 8.1 of the Interpretation Act to define the concept of "charity" in relation to sports associations, since the Act contained provisions that applied specifically to those associations.[406] We can see the jurisdictional argument in that decision, since the status is reserved under the Act for associations that operate throughout Canada. Granting other associations charitable status, particularly organizations operating at the provincial level, would "frustrate Parliament's clearly expressed intent to limit the federal funding of amateur sports associations to those which operate nationally".

Reasoning of that nature can also be seen in other areas of law, although they appear to be rarer, particularly in relation to bankruptcy, from what our sample shows. The courts have determined, for example, that the fraud exception in letters of credit cases could be interpreted having regard to the common law decisions, because of the "desirability of as much uniformity as possible in the law with respect to these vital instruments".[407] In addition, the Supreme Court of Canada and the Quebec Court of Appeal have declined to give effect to a Crown "privilege" and a "legal hypothec" of the provincial Crown in bankruptcy cases, in view of the goals of federal bankruptcy legislation. The courts have stressed, in particular, the intention of Parliament to assign a specific rank to Crown debts and the right of the Crown to determine how to arrange the distribution of assets.[408] The [TRANSLATION]"essential goals" of the Bankruptcy Act have also been cited, in a decision relating to discharge of debts, in relation to provincial provisions concerning the extinction of obligations, which were held not to be exhaustive.[409] And in a decision of the Federal Court dealing with the concept of residence in the Canadian Citizenship Act,[410] Pratte J. applied the ordinary meaning of the concept in that context and concluded that the term referred to a person who is "physically present (at least usually) on Canadian territory". In the judge's opinion, that definition is in keeping with the "spirit of the Act" which seeks to grant citizenship to the foreigner who possesses "certain civic and moral qualifications" and has shown they are capable of becoming a part of our society.

In all these decisions, essentially, it will be seen that reasons associated with end results allow for unification of federal private law legislation in terms of the meaning of the provisions of that legislation, or, more broadly, the suppletive sources to which the legislation refers. In those cases, the interpreter recognizes the importance of preserving uniformity of application, either because it is "necessary in practice" or because it is necessary to respect the purpose of a norm as it is determined, for example, from its context or wording. The interpreter will adopt a type of reasoning that then allows for the legislation or suppletive sources to be unified in terms of object, in respect of both intentions and effects. Just as there is unification of a thought or action from its object, the interpreter determines the norm from its end results. As we have seen, the interpreter may refer, for this purpose, to tests involving integration, jurisdiction or even, if necessary, to the purpose expressed by the ordinary meaning of the text. The interpreter will then avoid the practical discrepancies caused by diversity of sources, and may also avoid multiple meanings relating to multiple specific cases. The risk will always involve the possibility that objectification of the meaning will be done in spite of the text, the ordinary meaning perhaps being, in this respect, the last rampart. Unification of an enactment from its object should not, in principle, allow for gaps in the legislation to be filled; it should only allow for the meaning to be determined, in the course of a comprehensive approach, where the meaning is not entirely certain or transparent.[411]

3. Unification Relating to Authority: Power of Parliament

It is appropriate to conclude our analysis of the case law in our sample with an overview of some decisions that relied on authority to justify uniform application of federal private law. By "authority" we generally mean any argument in which uniformity of federal private law relies on a statement of the power to achieve such uniformity. These arguments are most often raised during constitutional analyses on the exclusiveness of the powers conferred on Parliament in regard to the division of powers. However, as we shall see, they have also been raised in regard to the determination of courts' jurisdictions as established by legislation. Also, particularly in tax law, these arguments are sometimes raised in a general manner to draw attention to parliamentary sovereignty, or the predominance of legislation over other non-legislative sources.

Before presenting the decisions, two clarifications must be made. First, our sample is only a partial representation of the most relevant case law and is only an approximation of a vast and complex issue. In fact, arguments of authority may occasionally be raised in simple statements about Parliament's jurisdiction but are most often raised during constitutional analyses in which the details go beyond the strict field of legislative interpretation. This is why, as we noted at the beginning of this section devoted to case law strategies of unification, we will re-state that our study is not meant to be exhaustive or specific in regard to the substantive issues considered in the decisions. Based on our sample, our goal is to present some directions for consideration that will lead to a clearer understanding of the ways in which the courts achieve unification of federal private law. Only specific, more in-depth studies will lead to more substantial and detailed courses of study.

Next, it is relevant to explain why we classify authority arguments with proceedings that determine uniformity in the application of the legislation. For us, authority invoked to justify the unit of federal private law is essentially a prerequisite for applying normative sources. There is undoubtedly a connection between the authority argument and certain procedures to determine uniformity of conception (for example, the theory of the complete code or unification through autonomy or the predominance of external sources). In fact, if Parliament has the power to achieve uniformity in federal private law, this implies that it can also conceive this law uniformly. However, our emphasis here is on the cases where authority is invoked by the courts when determining whether a legislative text or other standard is based on a sufficient power to apply it. These arguments are raised whether the text or standard likely to apply is from a federal or provincial source. In the case of provincial legislation, uniform application of the federal law will be considered for its interaction-as a text or field of jurisdiction-with provincial sources.

As for division of powers in particular, the issue of the relationship between authorized legislative intent and the application of a statute is at the very core of a constitutional analysis. We know that a statute can be challenged using three methods of analysis: it can be deemed invalid, inapplicable or inoperative.[412] These three approaches question, respectively, the goals, the applicability and effect of the act, namely its aspects of finality (as opposed to its aspects of origin) if we maintain the point of view adopted at the beginning of this section II.B. This being considered, it must be acknowledged that we are addressing the edges of this perspective that focuses on the implementation of legislation, since issues of authority also arise regarding the origins of the statute. In this way, unless otherwise indicated, an (A) statute's invalidity-the first type of analysis-presumes nullity as a consequence;[413] and it is not possible to imagine applying a statute that would be invalid. Moreover, the analysis regarding the applicability of a statute - the doctrine of interjurisdictional immunity - is involved when there is no federal statute and, beyond the issue of constitutionality of a provincial law, strictly targets the exclusivity of the legislative authority attributed to Parliament. Therefore, it is at this point where conception and application of legislation meet that the distinction we established at the beginning loses its relevance and our analysis comes full circle.

Arguments of authority were invoked in all the legal domains we studied. Based on our sample, it is in tax matters that they are raised in a more general manner. We noted only one decision in which an actual constitutional analysis was carried out, the Privy Council case, Minister of Finance v. Smith.[414] In that case regarding the taxation of income from contraband alcohol, declared illegal under provincial legislation, the Privy Council stated from the start that Parliament is quasi-sovereign in taxation matters and has the authority to collect taxes on illicit income, if that is its intent.[415] Such reasoning was also used in Marcoux v. Canada (A.G.) at the Federal Court of Appeal.[416] Called upon to review the scope of the federal government's privilege regarding tax matters in terms of Quebec civil laws on exemptions from seizure, the Court relied on the admissions by counsel for the appellant, namely that (1) "the Parliament of Canada has the legislative authority to raise money 'by any Mode or System of Taxation'" pursuant to s. 91(3) of the Constitution Act, 1867; (2) that this jurisdiction "includes that of recovering the taxes so raised;" (3) that 224 of the Income Tax Act, involved in this case, "is part of the legitimate exercise of that power;" and (4) that "in exercising this power Parliament is free to disregard or to adopt the exemptions from seizure made pursuant to provincial law."[417]

More generally, the courts can confirm Parliament's authority without relying on a constitutional analysis. This means recognizing that the legislator has the power to uniformly govern issues of law, without relying on suppletive sources in its interpretation. For example, in a case on a deemed trust in favour of the Crown, regarding deductions at the source carried out by an employer of the tax debtor, the Supreme Court of Canada stated that, on one hand, "Parliament was free to grant absolute priority to the deemed trust by adopting the appropriate language" and, on the other hand, "it is open to Parliament to characterize the trust in whatever way it chooses; it is not bound by restraints imposed by ordinary principles of trust law."[418] It is relevant to note that the Supreme Court relied on the plain language rule and an analysis based on the purpose of the legislation. We can see that the authority argument, when presented in such a general way, is closely related to considerations such as "Parliament's intent" or "legislative function" in their true meaning. To that effect, the courts confirm, for example, that coming to a different conclusion would "frustrate Parliament's intent"[419] and that not relying on the plain language rule would be "a usurpation of the legislative function of Parliament."[420]

With regard to bankruptcy and insolvency, the constitutional perspective is much more apparent when it comes to determining how federal legislation and provincial private law interact. We found a series of decisions in which the provincial schemes were safeguarded, particularly in decisions on the security schemes established by the Personal and Property Security Act (PPSA).[421] More commonly, however, we found judgments in which the courts determined that the provincial provisions had no force or effect because they encroached on the exclusive jurisdiction of Parliament over bankruptcy and insolvency, or came into conflict with federal provisions. In the first category, we can mention for example the decision Reference re: Orderly Payment of Debts Act, 1959 (Alta.),[422] in which the Supreme Court determined a voluntary assignment scheme established by the province of Alberta to be invalid. According to the Court, the statute in question was ultra vires because it was in pith and substance bankruptcy and insolvency legislation. Given Parliament's exclusive legislative power in this regard, the provinces are excluded from that field, according to the Court, even where Parliament has not fully exercised the powers conferred on it.

In the second category, still with regard to bankruptcy and insolvency, we found decisions in which the provincial provisions were determined to be inoperative, if not inapplicable, because they came into conflict with federal provisions creating priorities between creditors. This problem, in an area in which provincial private law is highly integrated into the federal regime, was fertile ground for constitutional analysis because, in many respects, it seems inevitable that valid provisions of provincial private law would have an impact on the federal bankruptcy regime superimposed on it. This question was asked early on in the Privy Council decision, Quebec (A.G.) v. Larue.[423] In that decision on the judicial hypothec of a bank upon an immovable property, the Privy Council determined that the hypothecary creditor did not retain any charge after the assignment to the trustee and that Parliament's exclusive authority under s. 91(21) of the Constitution Act, 1867 enabled it to determine, on an ancillary basis among others, the priorities of creditors under a a bankruptcy or an authorized assignment.[424] Although the provincial provision was considered valid, it was also considered that it came into conflict with the federal legislation and that federal legislation was to prevail, the field now being occupied by Parliament. This finding was repeated and cited subsequently in Re Gingras Automobile Ltee,[425] regarding the right of a landlord to recover rental arrears and amounts paid for renovations. The Supreme Court found in that case that federal legislation did not merely have the effect of determining priorities, but also the extent of the preference granted to the landlord.[426]

The principle established in Larue and Gingras was upheld and cited until recently in Supreme Court decisions. These decisions gave rise to a new constitutional review of the interaction between the federal bankruptcy regime and provincial rights, particularly with respect to the scheme of distribution in the federal bankruptcy act. In a series of four decisions from the 1980's, dubbed the "quartet" by Gonthier and Iacobucci JJ., the Supreme Court established the principles that govern this interaction.[427] Although we cannot summarize the reasoning and conclusions of these complex decisions, for the purposes of this discussion we should keep in mind that the Supreme Court determined in this quartet of decisions - according to the subsequent interpretation in Husky Oil - that Parliament's exclusive jurisdiction in bankruptcy prevails over provisions of provincial private law that have the "effect" of creating priorities among creditors and modifying the scheme of distribution set out in the Bankruptcy Act. The Supreme Court was divided in Husky Oil, on whether this had a general or restrictive application, but a majority still held that it embodies a "consistent and general philosophy" that goes beyond simply "jump[ing] the queue":[428] The federal act prevails over provincial law when determining the priority of claims and the meaning of terms such as "secured creditor"; Parliament's authority affirms the importance of a national bankruptcy scheme; provinces are not entitled to do indirectly what they are prohibited from doing directly; and there need not be any provincial intention to intrude into the exclusive federal sphere of bankruptcy and to conflict with the order of priorities of the Bankruptcy Act, it is sufficient that the effect of provincial legislation is to do so, in order to render the provincial law inapplicable.[429]

However, we should not forget the controversial nature of the majority reasons of Gonthier J. in Husky Oil with respect to the conflict rule and the consequences of federal paramountcy for provincial law.[430] Although the majority rejected the "bottom line" approach, by acknowledging the dependence of the bankruptcy scheme on provincial private law, it adopted an interpretation that has a "confusing" consequence, according to Iacobucci J., of conflating the doctrines of vires and paramountcy and to favour exclusive rather than overlapping jurisdictions.[431] With respect to a seemingly expanded approach to paramountcy, we can also refer to Bank of Montreal v. Hall that was discussed above in relation to the complete code theory.[432] In this decision, the Supreme Court goes decidedly beyond the classic concept of conflict and proceeds with an analysis that concludes that there is a "complete code" in the federal legislation and the provincial law is inapplicable.[433] Given that paramountcy is raised by some as the justification for uniformity in federal law when it interacts with provincial law,[434] such an analysis could certainly promote unification of federal private law.

There is an even stronger argument for authority, in our opinion, in maritime law where the Supreme Court has relied on the theory of interjurisdictional immunity to provide uniformity of federal law in private law matters. This theory was raised, for example, with respect to federal undertakings or Indians and lands reserved for the Indians; it aims to uphold the exclusivity of jurisdictions and prevent the application of an otherwise valid provincial law when it affects matters that are integral parts of federal jurisdiction.[435] In short, to reiterate the words of the Supreme Court, it involves protecting the specific federal nature of a person, activity or thing that has aspects that, as an "integral part" of federal jurisdiction, would be impaired by the provincial legislation.[436] We would note that this theory, distinct from the concept of conflict, does not necessarily imply the existence of a federal statute and may simply be used to ensure the "immunity" of Parliament's exclusive jurisdiction by rendering a provincial statute inapplicable. Nonetheless, the idea of integration stems from this theory and this unified concept of federal jurisdiction has been strongly upheld by the Supreme Court particularly with respect to maritime law, and in certain cases, it authorizes the application of a federal statute without referring to provincial law in a suppletive manner.[437] We would further note that, even without a specific piece of federal legislation, the expression "laws of Canada" used in section 101 of the Constitution Act, 1867 to establish the jurisdiction of federal courts has been extended in maritime law cases to include the common law rules that comprise maritime law.[438]

In the current context, whereby the unity of federal private law is drawn from reasons of authority, it is interesting to note in passing that the unification of "Canadian maritime law" was based on the jurisdiction of a federal court. This type of unification based on jurisdiction or judicial authority is not unique to maritime law, since we have seen it to a lesser extent in bankruptcy law.[439] Although the procedure is often based on legislation,[440] it is a type of path to unification relying on judicial authority in an indirectly or mediatory way, specifically with respect to the nature and the scope of the law that it can apply in certain situations. The edifice of federal private law "unified" in this way, autonomous and comprehensive as in maritime law, seems to balance (like an elephant in a Dali painting) on the pinhead of a statutory provision.

As we have already seen, the issue of unity of federal private law has been analyzed with respect to the overall jurisdiction of federal courts pursuant to section 101 of the Constitution Act, 1867.[441] With respect to "Canadian maritime law", which the jurisdiction of the Federal court is based on in maritime law cases,[442] the Supreme Court of Canada has determined that it is "a body of federal law, uniform across the country, within which there is no room for the application of provincial statutes" and that this body is the maritime law of England as it has been incorporated into Canadian law by Parliament.[443] Moreover, the Court has determined that the body of law that constitutes Canadian maritime law, although it is used to establish the jurisdiction of the Federal Court, constitutes a "law of Canada" within the meaning of s. 101 of the Constitution Act, 1867, and consequently it falls within federal jurisdiction over navigation and shipping.[444] Regarding specific legislative provisions, such as the limitations on liability provided in the Canada Shipping Act, the Court also confirmed that it involved "legislation in respect to the body of uniform federal law that is compendiously referred to as Canadian maritime law." This body of law, distinguished by its cohesive nature and that the Supreme Court places firmly within the exclusive authority of Parliament, therefore, could not give rise to any application of the double aspect or necessarily incidental doctrines,[445] although it is still "advantageous" to consider rules from other legal systems or other countries.[446] We should also note that this strong integration of Parliament's jurisdiction in maritime law is reflected in its territorial jurisdiction over navigable waters, which go together essentially for practical reasons,[447] and that the body of Canadian maritime law has been ruled applicable throughout Canada regardless of the court hearing the case.[448]

Coming back to the theory of interjurisdictional immunity, it is observed that the strong integrated component of Canadian maritime law we described earlier is reflected in the constitutional analysis of the interaction of Canadian maritime law with the rules of provincial law that are likely to apply as suppletive law. In fact, in Ordon Estate v. Grail,[449] the Supreme Court was called upon to determine whether provincial statutes that are general in their application, in this case rules of liability for contributory negligence and damages for loss of guidance, care and companionship, may be applied in a suppletive manner, as provincial legislation, within a factual context which is governed by federal maritime law. As indicated by the Court in Ordon, the plaintiffs in this matter submitted that provincial statutes may "be applied as incidentally necessary to fill 'gaps' which may exist in federal maritime negligence law." In order to solve this problem related not so much to the autonomy as to the comprehensiveness of the rules of Canadian maritime law, the Court finally turned to a method of analysis recognizing the "possibility of reform" of that body of law deriving originally from the common law of England. Nevertheless, when such a reform is not possible, the Court provides for the possibility of applying provincial legislation and, to that end, provides a framework for constitutional analysis dominated by the doctrine of interjurisdictional immunity.[450] In the end, after having reviewed the case law on the latter, it concludes that "maritime negligence law is a core element of Parliament's jurisdiction over maritime law." It adds that "maritime negligence law may be understood (.) as part of that which makes maritime law 'specifically of federal jurisdiction'." Accordingly, a provincial statute of general application could not indirectly regulate an issue of maritime negligence law without this constituting an "intrusion upon the unassailable core of federal maritime law."[451] This conclusion would be justified, as mentioned earlier, notably for reasons of efficiency and integration in the area of maritime transportation at the territorial level.

To conclude, because the idea of integration clearly emerges from the analysis of the theory of interjurisdictional immunity, it should be noted that other methods based on what we call reasons of authority are also likely to give way to an extension of Parliament's powers in private law, and therefore, to a certain extent, to the unification of federal private law. Regarding the principles of interpretation of constitutional law, we can note how the ancillary power doctrine - which is resorted to routinely to allow Parliament to exercise its powers in private law matters -[452] by way of a general integration test and not a test of necessity.[453] Also to be noted, as a variation of the idea of integration, this time at the level of substantive jurisdiction, is the interpretation of federal trade and commerce power, for which it is important to verify such things as whether the legislation is concerned with "trade as a whole" and the consequences of provincial failure to legislate.[454] Although these examples are only but a few,[455] they afford, in our opinion, an avenue for additional research around the idea of integration, thus making it possible to understand the strategies for unifying federal private law.

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