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


And here, we have reached the conclusion of our study. In order to measure the results of our study and draw useful and valid conclusions from it, we should briefly look at the premises of our project.

From the outset, our study, which was devoted to federal private law, was placed under the unity and diversity theme. In fact, in principle, private law, falls within provincial jurisdiction but is also more specifically linked to some of Parliament's powers. Within this context, we chose to focus our attention on the interaction between federal law and provincial private law. Specifically, we chose to examine the underlying role of the courts within the context of that interaction.

The purpose of our study was to better understand the role of the courts in the interpretation of federal private law. We sought to uncover how the judicial interpreter fits into this relationship between, on the one hand, the autonomy of federal private law, and, on the other, its implied dependency on suppletive provincial sources. To that end, we hypothesized that the judicial interpretation makes it possible to unify federal private law. In other words, judges may determine the meaning or the autonomy of a federal private law standard by avoiding the application of provincial law for suppletive purposes.

In order to put to the test our hypothesis, we first revealed the conditions out of which the absence of unity in federal private law arose: the historical and constitutional framework of Canadian private law, and the suppletive role of provincial law within that context. We then went on to analyze the conditions out of which the search for unity in federal private law arose: the methods of interpretation and the legal constraints delimiting judicial power. Finally, we looked at a group of decisions that made it possible to understand how, in practice, the courts intervene in the interaction between federal law and provincial private law and how, in doing so, they work toward the unification of federal private law.

The ultimate goal of our study was to have a better understanding of federal private law and to know what, fundamentally speaking, it is. Basically, this study aimed to gain a clearer conception of federal private law. Our main issue was to determine whether the field of federal private law is solely within the formal boundaries of federal legislation or whether it can also include other legislation owing to the intervention of the courts.

In terms of the legal framework of federal private law, its interaction with provincial law and the role of judicial interpretation, which we studied in Part I, we can, in substance, come to the following conclusions. We concluded that there exists a plurality of private law systems in Canada owing to the rules governing the reception of law and subsequent genealogies of the European traditions which gave provincial private law distinct territorial foundations. Considering the exceptional nature of federal private law powers under the Constitution Act, 1867,[456] we found that this state of things was preserved in the confederation. Moreover, although there are methods of interpretation that make it possible to modulate more or less widely the federal private law powers, there are none under which Parliament may legislate exhaustively and generally in relation to the private law that applies in a province.

In terms of formal sources of federal private law, it is also important to acknowledge that there is no common law at the level of federal law, except in certain specific areas. The hypothesis of a federal common law of general application was rejected by the Supreme Court of Canada in a series of cases involving the jurisdiction of federal courts. Given that our study is framed within a formal perspective, we also dismissed the hypothesis of a common law, which as a normative background canvas, would serve to supplement federal legislation. In short, there is in the federal system a plurality of common laws pertaining to provincial private law which apply to federal legislation on a suppletive and concomitant basis. We also noted that the provinces' private law rules do not intervene in the federal legal system as common law, but essentially as suppletive law. Complementarity can be summarized as the application of provincial private law as suppletive law in the context of the application of a federal statute. It is a constitutional principle more than a systemic principle exclusively.

As we saw, federal private law and provincial private law are interrelated and include areas of contact. More particularly, this means that the interaction between federal legislation and provincial private law, when the former is uncertain or incomplete, is subject to interpretation. We concluded that the principle of complementarity, according to which one must refer to the provincial private law when it is necessary for the application of a federal instrument, can be integrated with a comprehensive approach to interpretation. Reference to extrinsic sources in interpreting legislation, if based on a historical and constitutional premise, may depend on the overall context, the intention or the object of the legislation. It is not a matter of simply stating complementarity in principle, but the interpreter must also take into account the entire canvas on which the legislation is painted. As we stated, the intention to effect such a reference to diverse provincial sources seem to be as valid as that resulting from a presumption of the intention of uniformity. Morever, the interpreter must also take into account the specific problems arising from the use of ordinary language, the determination of a logical sequence of interpretation, and the danger of interpreting the legislation in a relationship of monosystemic opposition between statute law and common law.

Finally, we examined the crucial problem of the power to proceed with the unification of federal private law. Such power was analyzed by deciding, on the one hand, the power/ability of the courts to proceed with such a unification, when unity may be identified from the various aspects of the legislation and it is inherent in its possibilities and resources. On the other hand, we analyzed the courts' power/jurisdiction, which dictates not to infer a unity of meaning when the provision, as enacted by Parliament, rests on a plurality of formal sources. Thus, we concluded that unification of the meaning of federal private law seems to be justified when the judge adheres to the formal confines of the legislation and determines the meaning or the scope of the legislation without adding anything intrinsically. However, when in the presence of a normative void in private law, the judge should limit himself or herself to the legislative framework created by the sovereign intention of Parliament and the identification of extrinsic suppletive sources. Barring exceptions, for example in the case of formal reference, or in certain areas, the judge may not conclude that there is only one reference system serving as suppletive law. In strictly formal terms, the judge has no federal common law to rely on and no power to create law. As we concluded, the approach is essentially to identify (1) the existence of a legislative void or omission, an absence of meaning, that makes reference to extrinsic suppletive sources necessary; and (2) where applicable, identify a private law issue that then makes reference to provincial sources mandatory. In our view, derogation to such a provision should be made expressly by Parliament, unless otherwise provided.

Having established the legal framework of interpretation in the absence of unity in federal private law, we then turn to unveil a few strategies implemented by the courts in an effort to bring unity to it.

As far as interpretative practices are concerned, examined in Part II, we identified certain steps to be used in unifying federal law on which the uniform conception and application of legislation may be based in practice. To that end, we assembled a defined body of literature dealing primarily with the interaction between federal legislation and provincial law in the areas of tax law and bankruptcy law, as well as a list of decisions citing federal harmonization legislation, so as to identify judicial decisions implementing the dissociation of federal law from provincial suppletive law. While not exhaustive, this research aimed to identify some of the most important procedures which make it possible to conclude that there is unity in federal private law. These were primarily possibilities for further consideration on a practical level.

Overall, we found that the courts do in fact contribute to the unification of federal private law. The multiple decisions examined in this study confirm that the judges may, in practice, determine for themselves the meaning or autonomy of federal private law norms. The legitimacy of the judicial action is not called into question when the interpretation focuses on the resources of the legislation and respects the historical and constitutional configuration of Canada's private law. It seems to us, however, that it is likely to be critiqued when it leads to the legislative function or changes the balance of division of powers in private law. The judge's intervention could in fact exceed judicial power/jurisdiction.

In analyzing the creative power of the judges within the context of federal private law, we found that, in principle, it is important to identify a normative void and, where necessary, to identify a question of private law requiring reference to a provincial law for suppletive purposes. Significantly, this two-part analysis is reflected in the most debatable judicial practices of unification. It represents, in fact, the two main trends of unification. On the one hand, the judicial interpreter may adopt an approach or procedures which will result in the denial of the normative void. On the other hand, the judicial interpreter may adopt an approach or procedures which will result in the denial of the plurality of provincial suppletive sources. Taken in a different context, it appears to us that the former would exacerbate the formal aspect of the legal sources, whereas the latter would mitigate them.

Among the cases of procedures denying the legislative void, we stated that one of the most problematic, in terminological terms, was that of conceiving of the legislation as operating in a vacuum, or that of authoritatively conceiving of the legislation as a complete code so as to ensure its integrity in relation to the common law. We also looked at a few cases where the federal law was granted autonomy with respect to the extrinsic suppletive sources of provincial law. In terms of application, we can also include in this category cases where the interpreter found that the application of legislation should be uniform by objectifying the norm through its end results, in spite of the gaps it contains. Finally, we can include those cases where immunity is placed under the jurisdiction of Parliament so as to avoid relying on the application of provincial law as suppletive law.

As regards the procedures denying the plurality of provincial suppletive sources, we can refer specifically to some problematic cases that establish an equivalence among extrinsic sources, or a predominance of one over the other. In terms of application, we believe the same applies for procedures opposing the principle of equity to the principle of complementarity and whose justification is not entirely established from the complementary standpoint. Finally, we consider that a process of unification that is based on a broadened conflict test which increases the preponderance of federal powers also denies the existence of a plurality of provincial suppletive sources.

Regardless of this classification, we can still conclude that federal private law is not conceived on an absolute unitary vision in judicial practice. The unification process, even when it leads to a drift in federal private law toward a certain unity, in the end is merely an occasional intervention. Such process essentially involves terminology, the text, the satute, or the field of jurisdiction or application in specific cases. There are very few examples where federal private law can be considered autonomous and independent from provincial suppletive law where significant segments are concerned. The most striking examples are those found in Canadian maritime law, at least where liability is concerned, and in the legal system applicable to Indian land rights.

Unity in federal private law is therefore inconceivable without considering the principle of complementarity as well. To use the analogy drawn in the introduction, federal private law is not an island unto itself. If that were case, we would say that it is an archipelago, a complex set of interrelated laws and regulations in a provincial suppletive law environment.[457] At the outside, to represent judicial influence, it could be viewed as atolls enclosing lagoons and barrier reefs. Federal legislation, which is concentrated on the internal dynamic of the enactment, is structured by the context of its application without however being completely cut off from provincial law in its supplementary capacity. The corroles and other normative alluvions brought on by judicial interpretation could not, therefore, definitively structure an exhaustive and coherent set of federal private law norms called upon to serve as formal common law. Even in the case where the will of Parliament is supported by the judiciary, the unification of federal private law ultimately falls within the jurisdiction of Parliament.

However, unity of federal private law remains conceivable, to some extent, in terms of real sources. There is no clear opposition between federal legislation and complementary provincial law since the interpreter intervenes between them. Our study shows, it seems to us, that the formal analysis we set out in Part I is not without nuances in practice. As we stated in the introduction, the interaction of federal private law with the private law of the provinces is a dialectical process. There is constant tension between the emancipation of federal private law and its dependence on suppletive provincial sources, and one cannot conclude, without exaggeration, that the interaction is pre-established in a purely static manner by the legislature. Interpreters produce [TRANSLATION]"perpetual movement"[458] between the opposite poles of federal private law sources. Thus, the legal framework or armature that we discussed in Part I,[459] while formally rigorous, is not entirely watertight against the fluidity of meaning. By interpreting the origin or affiliation of legal sources of federal private law flexibly, though sometimes incorrectly, interpreters themselves manage to produce a certain normative unity in the federal legal framework.

For this reason, only an absolutist view would hold that the role of the judiciary in all cases is limited to recognizing its duty to rely on suppletive provincial law predetermined by the legislature. That duty ("must be made": section 8.1 of the Interpretation Act[460]) is indeed subject to the interpreter's judgment ("if . it is necessary": id.) and it is the necessity of reference to suppletive provincial law that introduces the mediating role of case law. Some have pointed out the importance of considering the "dialogue" between the two legal traditions through mediation provided by the interpreter.[461] From the standpoint we adopted, we chose rather to see these interventions as a unifying process. We believe that the procedures followed by judges cannot always be balanced between perfectly opposed traditions. There is no pure interpretation of law. As shown by the fragments of judicial reasoning analyzed in Part II of our study, judges very often play a leading role in the interpretation of federal private law. They take on that role and seek unity for various reasons (fairness, practicality, etc.) that ultimately overhang the mere division of formal sources.

Consequently, we must recognize that the judge's contribution can influence the normative configuration of federal private law. For a complete view of the problem of unity, this study would have to be continued, but this time vertically, that is, field by field. This would help to identify instances where, in relation to findings of complementarity, the search for unity in federal private law brings out more than jurisprudence and produces tangible legal sources.

Such a study would have the additional advantage of revealing a feature shared by both the search for unity and the implementation of complementarity. Whether the issue is independence from or dependence on suppletive sources, "derivative bijuralism" or "suppletive bijuralism", it seems to us that in most cases one can find, as a backdrop, an attraction to the common law. As a pool or reservoir of sources from the civil law and the common law, the "common law" (or general law) is naturally invasive.[462] Where federal private law is concerned, one must also recognize that legislation remains open to common law, despite the formal framework that delimits it. Just as an island is washed by more than one ocean current, federal legislation is imbued with the civil law or the common law. There is an osmosis of the "common law" just as there is, for example, an influence on meaning in the legal lexicon of federal private law.[463] In terms of actual sources, "common law" runs through the formal structures of federal private law like a column of life.

A Canadian general law can therefore take shape if one accepts that it is based on a search for unity conducted in the case law. Absent intervention by Parliament, the unity of federal private law is not likely to be achieved without undergoing judicial interpretation. We would even say, taking a general view, that case law can be part of federal private law where its scope is normative. A Canadian common law seems ideally desirable if the aim of the courts is to favour the convergence of all provincial common laws.[464] In this regard, one must mention the fundamental role of the Supreme Court of Canada, which by virtue of its jurisdiction as a general appellate court is naturally inclined to favour uniformity in law.[465]

Moreover, it must be stressed that the convergence of legal knowledge and traditions has been enshrined by Parliament where federal legislation is concerned. Section 8.1 of the Interpretation Act provides in its first sentence that "[b]oth the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada". It was probably a mistake to have assimilated suppletive provincial law, mentioned in the rest of the section, with legal traditions that transcend provincial systems. In our opinion, there is a risk of confusing the pre-eminent law of the traditions with the formal suppletive law of the provinces. However, this systemic principle in the Interpretation Act serves to validate, from Parliament's point of view, a unified conception of federal private law. This conception is achieved by recognizing the traditions as equally authoritative and at the same time making them sources of the law.

For the traditions to go from being actual sources to being formal sources, there is a step that the courts will not hesitate to take, where Parliament itself has not already done so.[466] In this regard, to quote a great modern poet,[467] judges will "hold on to a step once taken". However, what not only authorizes but makes possible the convergence of sources on a formal level is the idea of the equality of the legal traditions enshrined by Parliament ("are equally authoritative" / "font pareillement autorite"). This idea is not expressly stated in the Constitution of Canada, except through the underlying recognition of the principle of provincial jurisdiction in matters of property and civil rights, and the exclusion of Quebec from the uniformity provisions contained in section 94 of the Constitution Act, 1867. However, the enshrinement of the equality of the traditions in the preamble to the Federal Law - Civil Law Harmonization Act, No. 1 and in the Interpretation Act has the undeniable consequence, in our view, of formally allowing a unified conception of federal private law. It is in the concept of equality, an essential condition of harmonious co-existence and the sharing of differences, that the idea of the unity of private law in Canada is ultimately found.

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