I –  The threat of assimilation of civil law by common law

The Supreme Court of Canada is often seen as a symbol of the co-existence of both common law and civil law traditions. Created in 1875 by the Parliament of Canada under the authority set out in section 101 of the Constitution Act, 1867[6]  and comprised of judges from Quebec and the other provinces,[7]  the Supreme Court of Canada would become the general court of appeal for Canada. However, it was not until 1949 that it could exercise this role in all matters, including civil matters[8]  and became the final court of appeal for all cases, from all of the Canadian provinces, in both civil and common law matters.

The Supreme Court of Canada was created as part of the movement to establish national institutions for Canada and its role was consistent with the movement for the unification of national laws at the end of the nineteenth century.[9]  At the time, the establishment of the court was seen as a means of developing a unified national legal system[10] . During its early years, this role was generally expressed by giving preference to the common law in the interpretation of the civil law (A). However, in reaction to the threat of assimilation of civil law by common law and the fact that the common law undermined the internal consistency of civil law, a movement to defend the integrity of civil law emerged. This movement would further the establishment of civil law as a system that was autonomous from the common law (B).

A – The overriding influence of common law over civil law

In 1866, shortly before the creation of the Supreme Court of Canada, the Civil Code of Lower Canada was adopted, thereby codifying the statutes of Lower Canada then in force in civil matters, in order to make them more accessible to the English and French inhabitants.[11]  The laws of Lower Canada which were then in force and then codified in the Civil Code of Lower Canada came from a variety of sources, reflecting the co-existence of the two traditions. These included rules drawn from the Coutume de Paris, with the addition of rules modified by provincial statutes, or by the introduction of portions of the Law of England in peculiar cases.[12]  Given the mixed character of sources, there was a strong temptation to interpret some of the codified rules according to common law principles and English precedents. Similarly, there was a belief that there should be some uniformity in the interpretation of rules of common law origin.

One of the most frequently used examples to illustrate this belief in the universal common character of the rules of the Civil Code and of the common law, both in their origins and in their application, is Canadian Pacific Railway Co. v. Robinson.[13]  In that case, even though Taschereau J. was a civilist, he refused to award damages for solatium doloris pursuant to article 1056 of the Civil Code of Lower Canada. The idea was that article 1056 could not be interpreted to include this type of prejudice given that the solution would have been different from the rule at common law. According to some, Taschereau J.'s approach was based on more universal principles and receptive to the multiplicity of sources.[14]  Others were of the view that he was introducing a common law interpretation without respecting the general scheme of civil law.[15] 

In other cases, a distinction was made with respect to the type of reasoning and the borrowing from "foreign" sources depending on whether the provision of the Code was drawn from a rule of common law or of civil law. If the provision was based on a rule of common law, it was common practice to introduce the entire common law scheme in the interpretation of the rule set out in the Code. For example, with respect to wills, it is clear that the principle of freedom of willing is borrowed from English law.[16]  Therefore, it was commonly believed that any issue concerning the interpretation of a will and the validity of its provisions was to be examined in accordance with English law and its rules of interpretation.[17]  This was the case in Renaud v. Lamothe[18]  in which Girouard J.'s remarks are indicative of this trend:

Lorsque le Code de la province de Québec est semblable au Code français, je comprends que la jurisprudence française doit être notre guide, au moins une haute autorité, qui a rarement été ignorée par cette cour, si jamais elle le fût, quelque différente qu'elle soit du droit anglais. […] Mais si notre Code est différent, s'il décrète un principe du droit anglais, n'est-il pas raisonnable de recourir à la jurisprudence anglaise pour l'interpréter? Or, — et ceci n'est pas contesté, — la liberté pleine et entière de tester nous vient de l'Angleterre. La France ne l'a jamais connue. Peut-on alors mieux faire que de suivre les principes consacrés par le Conseil privé dans une cause analogue, celle de King v. Tunstall, décidée en 1874, et rapportée aux Law Reports.[19] 

It is interesting to note that the decision King v. Tunstall [20]  is a decision of the Privy Council rendered the year before the creation of the Supreme Court, on an issue coming from Quebec. King v. Tunstall was an English precedent that addressed the issue of the application of English law to Quebec civil law in matters concerning the exercise and effects of freedom of willing.

Also interesting in Renaud is that the fact that the English origin of the rule was not the only reason given for the dismissal of the "heir's" case. Since the plaintiff raise an issue of public order, Girouard J. also predicated the Court's decision on the need for uniform application of the rule applicable to the capacity of the testator and of the heir:

[I]l est de l'intérêt de la province de Québec et de toute la Puissance, que, sur un sujet comme celui que nous considérons, il y ait uniformité de jurisprudence. Singulier spectacle que serait celui où un legs, comme celui fait aux héritiers Renaud, serait valide dans toutes les provinces, à l'exception de Québec et ce pour des raisons d'ordre ou d'intérêt public.[21] 

Generally, it appears that the relationship between civil and common law was not always framed in a manner that indicated a reciprocal and equal relationship between the two traditions. Critics of the early judgments of the Supreme Court of Canada have generally pointed to the predominance of common law during this period, even with respect to the interpretation of Quebec civil law. Several authors have examined the evolution of the Supreme Court of Canada in terms of the interpretation of and importance given to civil law in its judgments. While this analysis will not be repeated here,[22]  a few of the important developments from this period will be highlighted. These will serve to give some indication of the evolution of the relationship between civil law and common law, and favour a better understanding of the rather belated recognition of the equal place of civil law in its relationship to federal law and the common law.

In nineteenth century Canada, unification of national law could not be based on civil law even officially take it into consideration. This exclusion of civil law from the movement to unify the law is clear in judgments which, rather than allowing for the possibility of an exchange of solutions between the two systems and a certain degree of reciprocity of influence. The judgments supported a unidirectional comparative analysis of the law, from common law to civil law.[23]  This then is far removed from recognition of the equal value of the traditions and the trend to recognition of civil law as a law that is distinct and autonomous from common law in the Canadian context.

Thus, it is commonly believed that Canadian common law drew very little from civil law. Yet, in the Supreme Court of Canada case law prior to repatriation of the appellate jurisdiction, there are cases in which civil law rules had an influence on common law rules. But, as H. Patrick Glenn[24]  noted, this influence generally expressed itself indirectly through the citation of English decisions that cited French civilian sources.

Canadian Merchant Marine Ltd. v. Canadian Trading Co.[25]  is the decision most frequently used to explain this bridging between common law and civil law. In this case, Duff, Anglin and Brodeur J.J. cited the English decision of Taylor v. Caldwell,[26]  the reasons of which were purportedly inspired in part by the writings of Pothier on implicit conditions of a contract. Pothier was not however cited as a source in Taylor, but merely as an example of foreign solutions in which the principles on which the solution is based are similar to those of English law.[27]  Thus, this is not an example of the influence of civil law, but simply a comparative reference similar to those found in modern case law. While recognizing the ratio in Taylor, all three judges rejected any application to Canadian Merchant Marine because of the nature of the contract. It is therefore difficult to discern any influence of civil law on common law in this decision.

Another possible source for the influence of civil law on common law is the citation of decisions on Quebec civil law by the Privy Council, which could then have been used as precedents for matters originating in a common law jurisdiction. However, no such examples have been found.[28] 

While common law does not specifically exclude borrowing from civil law,[29]  in the Canadian context of the day, the analysis of the relationship between civil and common law was generally done in only one direction during the first half of the Supreme Court's existence.[30]  In fact, Jean‑Louis Baudouin indicates in an article from 1975, that he found it impossible to find a single meaningful example indicating that, in its efforts to unify the law, the Supreme Court had adopted a solution from Quebec law and applied it to the laws of the other provinces.[31] 

This clear lack of reciprocity between Quebec civil law and Canadian common law in the Supreme Court judgments provoked reactions both within the Court and among Quebec authors.

B – The movement for the affirmation of civil law in relation to common law

Questions about the relationship between the two traditions were most often raised in civilian doctrine which, for a long time, defended the concept of the integrity of civil law and criticised the influence of common law in the interpretation of Quebec civil law by the courts.[32]  However, as there was absolutely no threat to the recognition and the role of common law in a movement to unify the national law within a country of the British Empire, it is not surprising that this issue was not important to common law jurists.

Yet, the act of borrowing solutions or analytical methods from Canadian common law or other legal regimes can only enrich the receiving legal system. This was the point made by Jean‑Louis Baudouin with respect to the interpretation of civil law by the Supreme Court of Canada.[33]  It is, in fact, one of the strengths of comparative analysis of the law. But, at the turn of the twentieth century, the problem of borrowing rules of interpretation from common law became a serious one with respect to the Civil Code.

In the civilian tradition, a code is not a simple statute, nor does it in any way resemble an administrative consolidation or a penal codification. Even though these all constitute a more or less organic body of explicit or implicit norms serving to regulate human behaviour,[34]  a civil code is different in that it serves as the general body of rules applicable to all situations, barring exceptions.[35]  It is the general law in Quebec civil law. Therefore, it plays the same role as the common law rules developed by the courts. It is a law of general rather than specific application.[36]  The Civil Code of Lower Canada clearly had this status of being the general law[37]  and this should have had a direct influence on its interpretation.[38] 

However, the Code's status as the founding text of Quebec civil law was poorly recognized by the Supreme Court.[39]  One of the consequences of this misunderstanding of the role of a civil code was that the Civil Code of Lower Canada was often interpreted in light of common law rules.

One of the difficulties thus created was that the Code was interpreted by common law judges as an ordinary law, a simple statute, both at the Supreme Court and at the Privy Council. Lord Summer's statements about the interpretation of articles 1053 and 1054 of the Civil Code of Lower Canada in Quebec Railway, Light, Heat and Power Co. v. Vandry[40]  are a perfect example. He relied on the English law authorities rather than those of French civil law, despite the similarity between provisions in the Civil Code of Lower Canada and in the Code Napoléon. He asserted the "statutory" character of the Code as follows:

Natural as this may be, the statutory character of the Civil Code must always be borne in mind. "The connection between Canadian Law and French Law dates from a time earlier than the compilation of the Code Napoléon, and neither its text nor the legal decisions thereon can bind Canadian Courts or even affect directly the duty of Canadian tribunals in interpreting their own law": Mcclaren v. Attorney-General for Quebec. Thus, […] "recent French decisions, though entitled to the highest respect […] are not binding authority in Quebec" (McArthur v. Dominion Cartridge Co.) still less can they prevail to alter or control what is and always must be remembered to be the language of a Legislature established within the British Empire [emphasis added].[41] 

The Supreme Court adopted this reasoning in Town of Montreal West v. Hough.[42]  The terms "père, mère et enfants" in the French text of article 1056 of the Civil Code of Lower Canada[43]  ("ascendant and descendant relations" in the English text) were not interpreted in accordance with the general scheme of the Code but in light of common law. Because it considered the provision to be a codification of a Canadian statute inspired by the English Lord Campbell's Act, the Court held that the meaning had to be determined according to the meaning of "father, mother and child" in common law cases, given the English origins of the rule.[44]  Furthermore, because the Code did not provide any specific definition applicable to the Code as a whole, the court felt bound to rely on the common law definition considered as the general law for the purpose of interpreting the provision thereof.

It is true that even when interpreted according to civil law alone, these terms would not have allowed for illegitimate children to be included in the category of descendants or children. Nevertheless, despite the similarity in scope of the terms "father, mother and child" at civil and common law in the exclusion of illegitimate children, there are insidious effects associated with reference to English law and the interpretation of the provisions of the Code as exceptions to the common law.

To take the Code as a simple law of specific application is to encourage a restrictive interpretation of its provisions, and, more importantly, the Civil Code is not seen to be the expression of the general law of Quebec civil law. Furthermore, if the Code is seen as expressing a single statutory intent, using the same language, in matters both of civil and common law, the style, expression and organisation of the civil law are then assimilated to those of the common law. Such comments negate to some extent the legal duality established by the Quebec Act of 1774 and by the Constitution Act, 1867 by implying that because of the relationship with the British Empire, the legislator can have only one voice, that of the common law.

Another difficulty that arises from interpreting civil law in light of common law rules is that it creates a practice of undue reliance on English precedents and legal authorities, which are not the same as those of civil law.[45]  This reliance on precedents may be due to the fact that the Code was interpreted as specific legislation rather than as a law of general application. It could also be due to the fact that the rule contained in a provision of the Code was seen as borrowed from English law. In the second case, it was a common belief that if the interpretation of the provision was uncertain, it should be interpreted by reference to English authorities.[46]  This is what was done in Town of Montreal West v. Hough[47]  and in Renaud v. Lamothe.[48]  In other cases, the similarity between the civil law and the common law rules with respect to the solutions adopted led to the introduction of precedents in the reasons for judgment, with no consideration of confusion between the sources and methods of common law and those of civil law.[49] 

An examination of these various examples of the relationship between civil law and common law leads directly to the conclusion that a tradition cannot be enriched through assimilation. Local sources[50]  and the recognition of the role of a given tradition in the development of cultural identity are fundamental to establishing a relationship. Respect for a tradition holds the same place in this regard as language.[51]  The movement for the affirmation of the autonomy of civil law developed largely as a result of the defence of this identity.

In fact, the enrichment of a tradition through contact with other traditions presupposes recognition of that tradition as, if not the other's equal, at least existing as a tradition based on a system that is complete in itself. Enrichment also requires that what is borrowed from foreign legal systems be incorporated in a manner consistent with respect for the organisation and the general principles of the receiving system. This explains in part why there was so much reaction to the Supreme Court of Canada judgments interpreting civil law using rules of common law. The fear of common law's power to assimilate civilian culture greatly contributed to the movement for the defence of the integrity of civil law.[52]  One of the pillars of this movement was Mignault, a justice of the Supreme Court.[53] 

Time and again in his judgments Mignault asserted the autonomy of the civil law as a system and the fact that each system had to be approached in accordance with the rules of that system.[54]  One of the landmark decisions on this point was Desrosiers v. The King.[55]  Mignault put forth this idea and stressed the fact that there was no reason to import a foreign rule, especially not the English precedents, simply because civil law rules were consistent with those of common law:

Il me semble respectueusement qu'il est temps de réagir contre l'habitude de recourir, dans les causes de la province de Québec, aux précédents du droit commun anglais, pour le motif que le code civil contiendrait une règle qui serait en accord avec un principe du droit anglais. Sur bien des points, et surtout en matière de mandat, le code civil et la common law contiennent des règles semblables. Cependant le droit civil constitue un système complet par lui-même et doit s'interpréter d'après ses propres règles. Si pour cause d'identité de principes juridiques on peut recourir au droit anglais pour interpréter le droit civil français, on pourrait avec autant de raisons citer les monuments de la jurisprudence française pour mettre en lumière les règles du droit anglais. Chaque système, je le répète, est complet par lui-même, et sauf le cas où un système prend dans l'autre un principe qui lui était auparavant étranger, on n'a pas besoin d'en sortir pour chercher la règle qu'il convient d'appliquer aux espèces bien diverses qui se présentent dans la pratique journalière.[56] 

Mignault previously made similar comments in Colonial Real Estate Co. v. Communauté des Sœurs de la Charité de l'Hôpital Général de Montréal.[57]  In Mile End Milling Co. v. Peterborough Cereal Co.,[58]  he would later assert the need to preserve the integrity of civil law, disapproving at the same time the practice of lawyers of submitting authorities drawn from common law.

Mignault has been criticised for having an inward-looking attitude in terms of the relationship that civil law should have with common law. The image of the "cloison étanche et infranchissable sépar[ant] les deux grands systèmes juridiques",[59]  drawn from one of his texts, has often been cited as an expression of this inward-looking attitude and a rejection of comparative legal analysis and of a dialogue between the traditions.[60]  However, this image must be examined in context if its scope is to be understood. The image of the barrier referred to cases in which the text of the Civil Code provided for the principle applicable to a given situation. Thus, he indicated that a common law solution that cannot be reconciled with the text of the Code is condemned in advance. The door will hold fast against all assaults.[61]  Therefore, the image of the barrier does not reflect a rejection of comparative analysis but a form of protection against the assimilation of one tradition by another or interference or absorption of one to the benefit or detriment of the other. Mignault did not exclude the benefits of comparative analysis or the relevance of reference to foreign laws when a new solution was called for, especially in the context of the law reform process. Nevertheless, his focus remained the assertion of the intrinsic autonomy of civil law and its wholeness in relation to common law.

While he sat on the Supreme Court and in his subsequent writings, Mignault successfully promoted the idea that there was such a thing as purely civilian thinking. A contributor to the Revue du droit, he was not alone among Quebec legal scholars in promoting the protection of the integrity of civil law. His contribution to the development of civil law as an autonomous system of law is undeniable. In an overview of his years on the bench, J.-G. Castel stated that "sous sa direction, la Cour suprême allait dorénavant appliquer plus strictement les principes et les méthodes du droit civil dans son interprétation du Code Civil de la province de Québec."[62]  Mignault's mark on the interpretation of the relationship between civil and common law in a national legal context could reach its full potential only after the abolition of appeals to the Privy Council in 1949.

Until appeals to the Privy Council were abolished in civil matters, common law's position over civil law would necessarily remain. Despite the fact that civil law was not entirely foreign to the Privy Council because it heard cases from Scotland and Scottish lords were sometimes sitting, it generally tended to favour the use of precedents, even in cases from Quebec.[63]  In fact, until the Supreme Court became the final court of appeal for Canada, it felt bound by the precedents set by the Privy Council.[64] 

Even Mignault felt bound by the Privy Council's precedents, despite his many statements asserting the completeness of the civilian system and its full autonomy with respect to its methods of reasoning and sources. Surprisingly, in Canadian Vickers Ltd. v. Smith,[65]  Mignault offered reasons based on the precedent established in Quebec Railway, Light, Heat and Power Co. v. Vandry[66]  and Watt & Scott Case[67] which he followed. It is worthwhile to reproduce his statements:

In the Watt & Scott Case, their Lordships explained the meaning of their decision in the Vandry Case, and these two decisions should be read together. It is therefore authoritatively determined that article 1054 establishes, for damages caused by a thing which a person has under his care, a liability which is defensible only by proof of inability to prevent the damage.[68] 

What is surprising in Mignault J.'s reasons is that in Quebec Railway, Light, Heat and Power Co. v. Vandry,[69]  the Civil Code was considered as a simple statute. The Privy Council adopted a style of reasoning with respect to the interpretation of a civil code that was foreign to the civilian tradition by considering it to be a law of specific application in relation to the common law rule.

However, as Albert Mayrand stated with respect to the authority of precedents set by the Privy Council during the colonial period of the Supreme Court, the Privy Council's decisions imposed themselves because of their binding nature as precedents rather than because of their persuasive authority.[70] 

Although the civil law rule was applied as is by the Privy Council on a few occasions, in that colonial context, courts obviously interpreted the law in light of the laws of the Empire and ensured they were consistent.[71]  This accordingly limited the development, within the Supreme Court of Canada, of the willingness to recognize the distinctive characters of the two traditions, including their respective methods of interpretation and the specific role of the Civil Code in Quebec's legislative corpus.

Following the abolition of appeals to the Privy Council, the Supreme Court of Canada finally became Canada's true final court of appeal[72]  and could choose its own policies. This is exactly what it did in the area of civil liberties.[73]  Since the requirement to interpret laws consistently with the law of the metropolis no longer existed, it also became easier to become more open to the uniqueness of Quebec civil law. Following the trend towards the recognition of civil liberties by the Supreme Court, the court awarded damages for the infringement of fundamental rights, using the broadness of the rules of "delictual" civil liability in Quebec civil law through the application of article 1053 of the Civil Code of Lower Canada.[74] 

Questions about and criticism of how the relationship between civil law and common law appeared in the decisions of the Supreme Court encouraged the development of an awareness among authors and judges that civil law is a system that is different from common law. To a certain extent, the examination of the Supreme Court decision by judges and authors laid the groundwork for the establishment of the foundations of an autonomous and modern civil law. The new judicial freedom of the Supreme Court of Canada will further a better recognition of this autonomy and a more faithful expression of the relationship between the two traditions as they interact in Canada.

Date modified: