Federal Legislation and the Private Law of the Canadian Territories: An Argument for Complementarity

Footnotes

  • * The opinions expressed in this article are those of the author and do not necessarily reflect those of the Department of Justice Canada. This article was written in 2010; online sources have been updated as of January 2011.
  • [1] Constitution Act, 1867 (The British North America Act), 1867, 30 & 31 Vict., c. 3, (U.K.), reprinted in R.S.C. 1985, App. II, No. 5.
  • [2] The Royal Charter of the Hudson's Bay Company, A.D. 1670 (available online: hbc.com (2011-01-21).
  • [3] The Royal Charter of the Hudson's Bay Company.
  • [4] Henri Brun, "Les droits des Indiens sur le territoire du Québec", (1969) 10 C. de D., at p. 451. See also Anne Warner La Forest, Anger & Honsberger Law of Real Property, 3rd ed., Volume 1, Aurora (ON), Canada Law Book, (Loose-leaf), at p. 3-20, ss. 3:30.10(e). It should be noted that this text does not discuss the question of the aboriginal title on this territory.
  • [5] As attested by the Royal Charter of the Hudson's Bay Company.
  • [6] See the Royal Charter of the Hudson's Bay Company. See also Anne Warner La Forest, supra, note 4, at p. 3-5, ss. 3:20.20 and p. 3-19 to 3-20, ss. 3.30.10(e); Law Reform Commission of Saskatchewan, The Status of English Statute Law in Saskatchewan, Saskatoon, Saskatchewan, 1990, at p. 18-19.
  • [7] Constitution Act, 1867, s. 146. Before long, the colonies of British Columbia (1871) (to which were added the Stickene Territory in 1863 and Vancouver's Island in 1866), Prince Edward Island (1873) and of Newfoundland (1949) were admitted within the Canadian union. See British Columbia Terms of Union (May 16th, 1871), (U.K.) reprinted in R.S.C. 1985, App. II, No. 10; Prince Edward Island Terms of Union (June 26th, 1873), (U.K.), reprinted in R.S.C. 1985, App. II, No. 12; Newfoundland Act (British North America Act, 1949), 12-13 George VI, c. 22, (U.K.), reprinted in R.S.C. 1985, App. II, No. 32. See also Jacques-Yvan Morin and José Woerhling, Les constitutions du Canada et du Québec : du régime français à nos jours, tome premier, 2e éd., Montréal, Thémis, 1994, at p. 401; Peter W. Hogg, Constitutional Law of Canada, Loose-leaf Edition, vol. 1, Toronto, Carswell, at p. 2-11 to 2-12. J.E. Cote, "The Reception of English Law", (1977) 15 Alta. L. Rev. 29, at p. 91-92.
  • [8] Constitution Act, 1867, s. 146.
  • [9] To pave the way for the admission of these territories within the Canadian union and bring into effect the provisions of the Constitution Act, 1867 on the admission of Rupert's Land and of the North-Western Territory, the Parliament of Westminster enacted the Rupert's Land Act, 1868, 31-32 Vict., c. 105, (U.K.), reprinted in R.S.C. 1985, App. II, No. 6. Section 5 of this Act does provide that it shall "be lawful for the Parliament of Canada from the Date aforesaid [ – that being the date of admission within Canada – ] to make, ordain, and establish within the Land and Territory so admitted as aforesaid all such Laws, Institutions, and Ordinances (…)". The Parliament of Westminster also enacted the Temporary Government of Rupert's Land Act, 1869, 32-33 Vict., c. 3 (Canada), reprinted in R.S.C. 1985, App. II, No. 7, of which sections 1, 2 and 5 are more particularly of interest for our purposes. Section 1 provides that, when admitted, these territories shall be styled and known as "The North-West Territories". Section 2 provides for the power "to make provision for the administration of Justice therein and generally to make, ordain, and establish all such Laws, Institutions and Ordinances as may be necessary for the Peace, Order and good Government of Her Majesty's subjects and others therein; provided that all such Orders in Council, and all Laws and Ordinances, so to be made as aforesaid, shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively". And, section 5 provides that [a]ll the Laws in force in Rupert's Land and the North-Western Territory, at the time of their admission into the Union, shall so far as they are consistent with the "Constitution Act, 1867" – with the terms and conditions of such admission approved of by the Queen under the 146th section thereof, – and with this Act, – remain in force until altered by the Parliament of Canada, or by the Lieutenant Governor, under the authority of this Act". Rupert's Land and the North-Western Territory were finally admitted within Canada pursuant to the enactment of the Rupert's Land and North-Western Territory Order, (June 23rd, 1870), (U.K.), reprinted in R.S.C. 1985, App. II, No. 9. See also René Dussault and Normand Chouinard, "Le domaine public canadien et québécois", (1971) 12 C. de D., 5, at p. 36; C.C. McCaul, "The Constitutional Status of the North-West Territories of Canada", (1884) 4 The Canadian Law Times, vol. 1, at p. 1-4.
  • [10] Adjacent Territories Order (July 31st, 1880), (U.K.), reprinted in R.S.C. 1985, App. II, No. 14.
  • [11] Manitoba Act, 1870, 33 Vict., c. 3 (Canada), reprinted in R.S.C. 1985, App. II, No. 8.
  • [12] Alberta Act, (July 20th, 1905), 4-5 Edward VII, c. 3 (Canada), reprinted in R.S.C. 1985, App. II, No. 20.
  • [13] Saskatchewan Act, (July 20th, 1905), 4-5 Edward VII, c. 42 (Canada), reprinted in R.S.C. 1985, App. II, No. 21.
  • [14] The Yukon Territory Act, 1898, 61 Vict., c. 6 (Canada), reprinted in R.S.C. 1985, App. II, No. 19.
  • [15] Nunavut Act, S.C. 1993, c. 28.
  • [16] For a discussion on the division of powers between Parliament and the provincial legislatures, see Citizens Insurance Co. of Canada v. Parsons, [1881] 7 A.C. 96.
  • [17] Gérald-A. Beaudoin, La Constitution du Canada, 2ème tirage, révisé, La Collection Bleue, Montréal, Wilson & Lafleur, 1991, at p. 333-334; André Morel, "Harmonizing Federal Legislation with the Civil Code of Québec: Why? and Wherefore?", in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism. Collection of Studies, Ottawa, Department of Justice Canada, 1997, p. 1-28, at p. 3.
  • [18] Peter W. Hogg, supra, note 7, at p. 21-2 à 21-3.
  • [19] Rupert's Land and North-Western Territory Order; for the power to legislate, see the second "whereas" of the Order. R. v. Chamberlist, (1970) 72 W.W.R. 746, par. 27; See also René Dussault and Normand Chouinard, supra, note 9, at p. 36; Dominique Melançon, "Aperçu du statut des Territoires du Nord-Ouest et du Yukon en droit constitutionnel canadien", (1988) 29 Cahier de droit, at p. 604-606; Peter W. Hogg, supra, note 7, at p. 2-12.
  • [20] Constitution Act, 1871, 34-35 Vict., c. 28, (U.K.), reprinted in R.S.C. 1985, App. II, No. 11. It should be noted that this power of the Canadian Parliament to legislate currently covers the North-West Territories, the Yukon and Nunavut as well as Canadian federal zones such as the territorial sea. See Jacques-Yvan Morin and José Woerhling, supra, note 7, at p. 406.
  • [21] See Temporary Government of Rupert's Land Act, 1869, section 5; see also Constitution Act, 1871, section 5. The common law and laws of England were first introduced by the Royal Charter of the Hudson's Bay Company on May 2nd, 1670. Following the admission of the territories within Canada, the reception of English law for the North-West Territories was established at July 15th, 1870 by The North-West Territories Act, S.C. 1886, c. 50, s. 11. When Yukon was created, The Yukon Territory Act, 1898, section 9, established that all laws in force in the North-West Territories on June 13th, 1898 would remain in force until altered or abrogated by Parliament. See Kilrich Industries Ltd. v. Halotier, 2007 Y.K.C.A. 12, par. 23-27. See also Anne Warner La Forest, supra, note 4, at p. 3-20, ss. 3:30.10(e).
  • [22] The situation with respect to the territories and the territorial legislative assemblies is briefly discussed by the Northwest Territories Supreme Court in Morin v. Northwest Territories, (1999) N.W.T.J. no. 5, particularly at par. 48 and ss. See also Fédération Franco-ténoise v. Canada (C.A.), (2001) 3 F.C. 641, par. 38; Canada (Attorney General) v. Nunavut Tunngavik Inc., (2008) Nu.J. No. 13, par. 80.
  • [23] Unlike the colonies mentioned at section 146 of the Constitution Act, 1867, the provinces of Alberta, Saskatchewan and Manitoba, pursuant to their admission in the Canadian union, did not fully benefit from the terms of the Constitution Act, 1867 as the natural resources contained within their territorial limits were initially reserved for the federal government. This was rectified in 1930 by the enactment of the Alberta Natural Resources Act (S.C. 1930, c. 3), the Manitoba Natural Resources Act (S.C. 1930, c. 29), and the Saskatchewan Natural Resources Act (S.C. 1930, c. 41). Also see Constitution Act, 1930, 20-21 George V, c. 26, (U.K.), reprinted in R.S.C. 1985, App. II, No. 26. René Dussault and Normand Chouinard, supra, note 9, at p. 37.
  • [24] "In conferring upon the provinces the power of exclusively legislating upon any class of subjects, the effect is to make the provincial legislatures supreme and independent of any control by the Dominion when legislating upon any of those subjects": Angus J. McGillivray, "Dominion and Provincial Powers under the British North America Act, 1867", (1918-1919) 13 Illinois Law Review 500 at p. 504.
  • [25] Gordon Robertson, "Autonomous Federal Territories: Self-government in Northern Canada will be better achieved by a new constitutional form rather than by provincial status", in Contemporary Canadian Politics: Readings and Notes, R.J. Jackson, Doreen Jackson and Nicolas Baxter-Moore editors, Scarborough ON, Prentice-Hall Canada; p. 169-177, at p. 170.
  • [26] R.S.C. 1985, c. N-27, particularly at sections 16-17 and 22.
  • [27] S.C. 2002, c. 7, particularly at sections 18 and 20.
  • [28] Particularly at section 23.
  • [29] Morin v. Northwest Territories, supra, note 22, at par. 52; Northwest Territories Teachers' Association v. Northwest Territories (Commissioner), (1997) N.W.T.J. no. 56, par. 12 and 20; Fédération Franco-ténoise v. Canada (C.A.), supra, note 22, at par. 40; Canada (Attorney General) v. Nunavut Tunngavik Inc., supra, note 22, at par. 80; See also Dominique Melançon, supra, note 19, at p. 622; Gérald-A. Beaudoin, La constitution du Canada : Institutions, partage des pouvoirs, Charte canadienne des droits et libertés, 3e éd., Collection bleue – Série traités, Montréal, Wilson & Lafleur, 2004, at p. 783-784.
  • [30] Re Pfeiffer & The Commissioner of the Northwest Territories, (1977) 75 D.L.R. (3d.) 407 (N.W.T.S.C.), par. 23.
  • [31] Morin v. Northwest Territories, supra, note 22, at par. 52-53. Also see R. v. Chamberlist, supra, note 19.
  • [32] See the accompanying text at footnote 21 of this article.
  • [33] Subsection 8(1) of the Interpretation Act, R.S.C. 1985, c. I-21.
  • [34] It is through the decisions of the Supreme Court of Canada in Quebec North Shore Paper Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054, McNamara v. R. [1977] 2 S.C.R. 654 and R. v. Thomas Fuller Construction Co. (1958) Ltd. [1980] 1 S.C.R. 695 that the recognition of a true complementarity relationship between federal law and provincial law came with respect to the interpretation of federal law. Effectively, federal legislation, although relatively comprehensive, is not a complete code insofar as private law rules are concerned. To that effect see France Allard, "The Supreme Court of Canada and its Impact on the Expression of Bijuralism" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 3, Ottawa, Department of Justice Canada, 2001, at p. 1. Recent caselaw continues to put emphasis on this point; for example, see Giffen (Re), [1998] 1 S.C.R. 91; Lefebvre (Trustee of); Tremblay (Trustee of), [2004] 3 S.C.R. 326; Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461; D.I.M.S. Construction inc. (Trustee of) v. Quebec (Attorney General), [2005] 2 S.C.R. 564; St-Hilaire v. Canada (Attorney General), 2001 4 F.C. 289 (C.A.). For a discussion of the caselaw concerning complementarity in a tax law context see Benoit Mandeville, "L'harmonisation des lois fiscales: cas de complémentarité (Partie II)", (2002), vol. 23, no 3 Revue de planification fiscale et successorale 545-561.
  • [35] These rules of construction were introduced by section 8 of the Federal Law – Civil Law Harmonization Act, No. 1.
  • [36] The common law of England was the source of private law in the British colonies. For a short period of time following the Conquest of 1760, the common law of England was imposed in the former French colony of New France, from then on called Quebec. This state of affairs remained until the introduction of the Quebec Act, 1774 by which was expressly restored the law, derived from the civil law tradition, that had applied prior to the Conquest with respect to the "Property and Civil Rights" of the citizens of Quebec. When it comes to the private law applicable to the current Quebec territory, the Quebec Act, 1774 has never been amended nor repealed by any subsequent constitutional laws and the civil law tradition still remains the foundation of Quebec private law. The Constitution Act, 1867 confirms the presence of both the common law and the civil law traditions in Canada with regards to the private law by providing, at paragraph 92(13) that property and civil rights is an exclusive provincial head of power.
  • [37] Such a statement regarding the principle of complementarity of the federal legislation with the private law of the provinces may also be found in the preamble of the Federal Law – Civil Law Harmonization Act, No. 1.
  • [38] Canadian Egg Marketing Agency v. Richardson (c.o.b. Northern Poultry), (1995) N.W.T.J. no. 71, par. 25.
  • [39] Interpretation Act, section 35, definition of "province".
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