THE SUPREME COURT OF CANADA
AND ITS IMPACT ON THE EXPRESSION
OF BIJURALISM

II – The equal recognition of civil law and common law

While some consider that civil law was recognized as an autonomous system before the Supreme Court of Canada when Mignault was on the bench at the beginning of the century, others believe that it was not until the 1950s that such autonomy was achieved.[75] In fact, the Supreme Court's new freedom and the many statements about the integrity of civil law in certain judgments and in doctrinal comments were not sufficient in themselves to guarantee the autonomy of civil law with respect to common law.

True recognition of the autonomy of civil law in relation to common law would become possible only with a developing awareness of the conceptual autonomy of civil law in relation to common law. At the Supreme Court of Canada, this awareness was evidenced by a rejection of common law and its precedents as a source of Quebec civil law (A). From that point on, with the recognition of the autonomy and distinct identity of civil law, the equal recognition of both civil law and common law traditions became possible. This equal recognition at the Supreme Court finds expression in the confirmation of the complementary relationship between civil law and federal law given the absence of a general federal common law (B).

A – The developing awareness of the conceptual autonomy of civil law in relation to common law

The problem of the confusion in the formal sources of Quebec civil law did not prevail only within the Supreme Court but also in the practice of the law as lawyers and judges of the lower courts routinely used common law precedents. In addition, the rules set out in Quebec statutes were not consistent with the main text of Quebec civil law: the Civil Code. The rules set forth in the statutes were drafted without always taking into account the rules of the Civil Code, sometimes even contradicting them. This situation made the relationship among the various rules of Quebec civil law unintelligible, leaving something to be desired both with respect terminology and interpretation.

Accordingly, the Quebec legislature proceeded to have the Civil Code revised. This occurred some ten years after Canadian courts acquired their independance from the Privy Council. In 1955, the Civil Code Revision Office was created. In contrast with the mandate given to the Codifiers for the 1866 Code, which was to consolidate the laws in applicable at that time in order to bring about greater certainty of the law, the Office's mandate was more general. No guidelines were laid down along which the spirit of the reform, the direction of the work or its scope were to be carried out.[76] However, the revision initiated in 1955 and completed in 1978 was a true revision of the law. The 1866 Code had "ceased to be a symbol of permanence, and ha[d] instead become one of rigidity, the reflection of a static, even stagnant, conception of a certain social order."[77] The revisers were guided by the desire to modernise the law in order to bring it in line with the new economic and social realities of a rapidly evolving society.

In addition to the need to put an end to the static rigidity of the Code, the Office was also preoccupied in its work of keeping "the civilian system vigorous" [78] and alive. While recognizing that it was not up to the courts "to ensure a systematic and coordinated evolution of the rules of law",[79] the revisers were nonetheless guided by the desire to right the wrongs caused by the court decisions that became accepted as authorities. In light of the assaults by the legislature and the courts on the internal coherence of civil law, the need to recreate "the organic unity of the Civil law" [80] was clearly present.

The revision work of the Office is thus characterised by the same concern for safeguarding the integrity of civil law that guided Mignault, although the Office was more open to outside solutions. Its work and the report that followed had a considerable impact on the development of a collective awareness of the conceptual autonomy of civil law in relation to the common law. They contributed to the coming to maturity of Quebec law in its relationship with other legal systems, notably common law and French civil law.[81] This general context of a collective examination of Quebec civil law played an important role in the evolution of attitudes toward the place and the unique characteristics of civil law at the Supreme Court of Canada.

It was in this context of a developing collective awareness that the Supreme Court of Canada followed Mignault's footsteps and came to recognize the sources of the civil law and set aside the idea of unifying Canadian law through the common law. H Patrick Glenn described this change as follows:

Depuis au moins le milieu du siècle, il est devenu clair que la Cour suprême a renoncé définitivement à l'idée de l'unification nationale du droit et à l'idée que la comparaison des droits doit servir à la construction de nouvelles règles, exclusives et impératives. Ce changement s'est effectué d'abord par une revalorisation des sources du droit civil, notamment de la doctrine québécoise et française, et par une reconstruction de l'impossibilité d'écarter systématiquement tout un corpus de règles dont la qualité et la cohérence ne souffrent en rien d'une comparaison avec la common law.[82]

On examination of the doctrine and of the work of the Civil Code Revision Office shows the increasing importance of French doctrine and Quebec doctrine in the interpretation of Quebec civil law.[83] The movement toward a more widespread use of the sources of civil law to interpret civil law can also be seen in judgments. The situation had clearly changed despite the fact that the common law often served as suppletive law[84] in the interpretation of both federal and Quebec statutes and even of the Civil Code of Lower Canada, which was sometimes considered a mere "statute".[85] Although at that time, common law precedents were still used in some Supreme Court judgments,[86] sources of civil law were being used more and more often as the basis for decisions in the interpretation of Quebec civil law.[87]

The movement dissociating the sources and methods of interpretation of civil law from those of common law was a slow one. The way in which the completeness of the Quebec civil law system and the internal coherence of the Civil Code came to be recognized can be illustrated by how solatium doloris in civil law was considered by the Supreme Court.

In 1887, the Supreme Court of Canada refused to grant damages for solatium doloris in Canadian Pacific Railway Co. v. Robinson.[88] Based on the argument that article 1056 of the Civil Code of Lower Canada was a codification of a Canadian statute modelled on the Lord Campbell's Act,[89] the Supreme Court denied compensation for bereavement as a result of the death of a close relative. Because the Code's provision seemed to be patterned after a Canadian statute applicable to both Lower Canada and Upper Canada that predated 1866, the Court held that the rule had to have uniform application. Because it was of English origin, it had to be interpreted according to English law. As there was no compensation for solatium doloris in English law, article 1056 could not be used to award such compensation.

In the appeal before the Privy Council,[90] the issue of solatium doloris was mentioned only in obiter. The Privy Council considered that the Code had to be interpreted on its own terms, without recourse to pre-existing laws. It noted that article 1056 of the Civil Code of Lower Canada was substantially different from the Canadian statute of 1859, which used the wording of the Lord Campbell's Act.[91] The Privy Council also considered that the manner in which the Canadian statute applied was not uniform. Its scope of application was different in the two provinces, Upper and Lower Canada. In Lower Canada, the provision restricted the rule of civil law by limiting the category of persons who had a right of action. In Upper Canada, it created a new right of action then unknown in common law, so as to attenuate the rigidity of a judicial rule of common law. Some years later, the Privy Council restated the comments it had made in Robinson in Miller v. Grand Trunk Railway Co.[92]

The obiter is interesting in a number of ways. It asserts the distinctiveness of the Civil Code of Lower Canada and allows for a different application of the same law in depending on whether it forms part of the corpus of rules applicable in civil law or in common law.

Quite surprisingly, subsequent decisions of the Supreme Court of Canada did not take into account the comments made by the Privy Council on the interpretation of article 1056. The Court continued to apply the rule it had established in Robinson.[93] Lower courts in Quebec however tended to support recognition of solatium doloris by giving a broad interpretation of the Civil Code, thereby circumventing the application of the rule established in Robinson.[94] Given the approach adopted by the Supreme Court, the case law was therefore divided. It was not until Pantel v. Air Canada[95] that the interpretation of article 1056 from the civil law point of view was re-established at the court.

In Pantel, beyond tracing the origins of article 1056, Pigeon J. cites the Lords' comments in Robinson[96] and in Miller.[97] He then referred to the decisions of the Privy Council to distinguish article 1056 from the Lord Campbell's Act:

Art. 1056 C.C. must therefore be interpreted, not as reproducing a statute of English inspiration, but as a new provision forming part of a codification in which some fundamental principles are radically different from those of the common law, in terms of which Lord Campbell's Act was written. […] What we have since 1867 is a code, and its provisions on this subject must be interpreted in keeping with the whole of which it is a part. Among the fundamental principles of that whole, which are radically different from those of the common law, is the absence of the maxim actio personalis cum persona moritur.[98]

The decision in Pantel marked a new era in the interpretation of the Civil Code of Lower Canada with regard to the need to interpret its provisions in keeping with the internal logic of the Code and taking into account all other provisions included thereof. As one author observed concerning the incorporation of a rule from English law in a provision of the Code, this incorporation does not necessarily entail, in the case of article 1056, the incorporation into civil law of the principles of compensation of English law.[99] If the rule is of foreign origin, its incorporation does not imply the integration of the entire legal regime that applies to the rule of origin. The incorporated rule must be blend with the existing corpus of rules in the receiving legal system. In the case of article 1056 of the Civil Code of Lower Canada, the provision was incorporated as part of the regime of civil liability set forth in the Code. Thus, the Canadian statute based on the Lord Campbell's Act became part of the rules on liability applicable prior to codification in Lower Canada. These rules were of French origin.

Notwithsatnding Pantel, the interpretation of article 1056 was raised again before the Supreme Court in Augustus v. Gosset.[100] The recognition of solatium doloris, and in particular, the extent of compensation under this head of damage was finally settled. In Gosset, L'Heureux-Dubé J. clarified the distinctions between civil law and common law with respect to moral prejudice and emphasized the "specificity of the legal tradition of Quebec".[101]

The impact of the decision in Gosset was limited given that the Civil Code of Quebec did not include a provision similar to article 1056 of the Civil Code of Lower Canada. The new Code instead provides a general statement of principle with respect to civil liability. Still, the rejection of English precedent and the idea of an internal coherence of civil law were clearly established in Gosset. The logic of civil law was clearly distinguished from the logic of common law with respect to civil liability. There are different principles in the two traditions which, when applied to the same issues, result in different solutions because each tradition has its own specificity.

This development in the recognition of solatium doloris in Quebec law is an example of the belated consecration of the specificity of civil law at the Supreme Court of Canada. Even in the 1980s, some were in fact still advocating the creation of a civil division for the Supreme Court.[102] The borrowing of common law categories and precedents was not seriously questioned until the late 1970s,[103] and, even at that time, there was hesitation over the dissociation of traditions with respect to the borrowing of common law categories to interpret the civil law.

The same hesitation was apparent in the case of trespass, even though the Supreme Court did not fall into trap of assimilating traditions despite the frequent reliance of the lower courts on certain common law notions.[104] In Albert Mayrand's view, the confusion between the common law rule and the civil law rule was, in the early 1960s, a relatively recent feature in Quebec courts decisions.[105] At the Supreme Court of Canada, despite numerous references in some of its judgments to common law decisions regarding trespass,[106] the Court has apparently never directly applied the theory of trespass with respect to Quebec civil law. While not directly imposing the doctrine of trespass on civil law, the Court's references and comments do not, however, dissociate the common law theory of trespass from the circumstances specific to the establishment of civil liability in civil law. Where circumstances could give rise to distinctions at common law, that is to say whether the victim was an invitee, licensee or trespasser on the defendant's property, the Court did not exclude these distinctions from the civil law regime of liability.

The Supreme Court of Canada first comments on the application of these distinctions in civil law were made by Beetz J. in Hamel v. Chartré.[107] The comments made in the reasons for judgment did not however indicate a clear exclusion of the theory of trespass at civil law. Concurring in the trial court's finding—that the victim's presence on the defendant's land was justified—, Beetz J. found that it was therefore not necessary to rule on the issue of the application of trespass. He expressed some doubt, however, as to the application of the distinctions between invitee, licensee and trespasser in civil law.[108]

It was not until 1982, in Rubis v. Gray Rocks Inn Ltd.,[109] that the Supreme Court of Canada clearly confirmed that the theory of trepass was foreign to Quebec civil law. Beetz J. observed that he was now convinced that the categories of trespass did not apply in Quebec civil law:

[I] no longer entertain any doubt, and I am of the opinion that it is an error to refer to these common law categories [invitee, licensee, trespasser] in the civil law. They detract from the generality of art. 1053, disregard the presumption of art. 1054 and the special provisions of art. 1055, and we cannot be sure that they would necessarily lead to the same result as the civil law principles.[110]

Trespass had finally passed on. However, in addition to rejecting trespass, Beetz J. reaffirmed and cited[111] Mignault J.'s comments in Desrosiers v. King[112] on the exclusion of common law precedent in the interpretation of a Civil Code provision and on the completeness of the civil law system.

In another example, that of wills, where English law had a definite influence through the contribution of freedom of willing, the Supreme Court interpreted the provisions of the Code in accordance with English law over an extended period of time.[113] As the idea and scope of freedom of willing are essentially English, lawyers and the courts generally referred to English law in matters relating to the exercise of freedom of willing, with regard to both capacity and consent. Yet, for the same reasons as those raised with respect to compensation for solatium doloris, it is not because a rule is imported from common law that the legal system of which it is a part automatically applies in civil law. When the receiving system has general rules that can govern ancillary matters pertaining to other legal concepts, it is these rules that should complement the borrowed principle. In Municipal Corporation of United Districts of Stoneham and Tewkesbury v. Ouellet,[114] Beetz J. directly addressed the question of the relationship between civil law and common law in matters respecting wills. Having to decide on the issue of undue influence (captation), he rejected any reference to English precedents:

The Court was referred by both sides to a large number of English decisions or decisions in cases from other provinces, for the reason that the unfettered freedom to devise or bequeath one's property by will comes from English law, and that there are analogies between the concept of undue influence in English law and undue influence (captation) in the civil law. The case at bar does not concern the unfettered freedom to devise any more than it concerns a will in the form derived from the laws of England. […] I not only hesitate to use decisions from other provinces in a civil law matter, I am not in any way bound by a decision of this Court […] dismissing an appeal from a decision of the Court of Appeal of British Columbia. […] In my opinion this old case comes very close to introducing into private law the rule in Hodge's case on reasonable doubt in the criminal law. This theory has no bearing on the provisions of the civil law as to evidence.[115]

In this decision, the difference between the concept that was borrowed from English law and the interpretation of the framework for its application was raised, as was the idea of an organic unity of the Code in its interpretation. Reference to the legal system from which the concept was derived is thus of only limited scope. In the case of the freedom of willing, Beetz J.'s comments clearly show that reference to English law might have been appropriate with respect to the nature and basis of testamentary freedom. However, the case did not concern the substance of that freedom, but the nature of consent to the legal act of making a will. Undue influence (captation) having an effect on the will to devise, it bears on the issue of the capacity to consent.

The rule suggested previously by Walton, who advocated an interpretation of the Code according to the legal rules at the origin of the provision of the Code,[116] was no longer entirely appropriate. The judgments in Pantel and Ouellet are powerful examples of the rejection of complete incorporation of the law of origin and of the use of English precedent.

English law is not however completely excluded from the analysis of civil law. It must fit into the body of civil law rules and its introduction has a limited role in their interpretation. A perfect illustration of this type of relationship between concepts of English origin and their interpretation in civil law is Royal Trust Co. v. Tucker,[117] which raised the question of the nature of the trust and related rights. This decision, which described the origins of the Quebec trust and characterised the interest as a "sui generis property right"[118] has received considerable attention. We do not intend to repeat or describe the criticism or the course of developments that followed the judgment. What is interesting, however, from the standpoint of the development of civil law with regard to a concept of English origin is the trouble the Court took to distinguish between civil law and common law trusts. The trust is the quintessential common law institution, symbolic of the distinction between "legal title" and "beneficial ownership", which are difficult to reconcile with the civil law notions of right and property. Despite the difficulties involved in matching the concept of trust with the conventional categories of civil law property right, the Court attempted to distinguish the Quebec trust in conceptual terms from the common law trust:

It is therefore legitimate to refer to English law […] However, the argument is not conclusive, because the entire English law of trusts was not incorporated into the civil law. […] the enactment of arts. 981a et seq. did not have the effect of introducing in Quebec the English distinction between legal title and beneficial ownership, a sort of dual ownership, and a concept foreign to Quebec law under which ownership is indivisible and vested in a single individual […] English law is relevant only in so far as it is compatible with arts. 981a et seq. of the Civil Code.[119]

While the defence and conceptual development of civil law at the Supreme Court were long in coming, these judgments reflect the progress the Court made between the Mignault period and the early 1980s. Interpretation of the Civil Code in accordance with civil law rules and reference to civil law sources were increasingly common starting in the 1970s,[120] to become the method followed by the Supreme Court in analysing civil law issues.

As noted above, the successful completion of the work of the Civil Code Revision Office in 1978 was certainly not unrelated to the growing acceptance of the conceptual autonomy of civil law at the Supreme Court. The turning point marked by Beetz J.'s judgments in civil law cases corresponds to an important period in the collective re-examination of the concepts and sources of Quebec civil law. Quebec's civil law was no longer suffering an identity crisis.

Starting in the mid-1980s, there were fewer civil law judgments at the Supreme Court as a result of the litigation resulting from the Canadian Charter of Rights and Freedoms.[121] The decisions on civil law thus became more visible and, at the same time, were more respectful of the civilian approach to analysing legal issues.[122] With this more civilian approach, the Court also relied on foreign sources to shed light on the socio-economic context and how legal rules evolve.

L'Heureux-Dubé J.'s comments in Caisse populaire des Deux Rives v. Société mutuelle d'assurance contre l'incendie de la Vallée du Richelieu[123] say a great deal about the approach the Court adopted in the interpretation of civil law:

In the past, writers and courts have tended to look to foreign insurance law for answers to questions for which Quebec civil law did not seem to provide a solution. This broader view of the sources of law is partly a result of the nature of insurance law, which the codifiers noted in their Seventh Report, is a body of fundamental rules found in several countries: […] this apparent similarity of the fundamental rules should not cause us to forget that the courts have a duty to ensure that insurance law develops in a manner consistent with the rest of Quebec civil law, of which it forms a part. Accordingly, while the judgments of foreign jurisdictions […] may be of interest when the law there is based on similar principles, the fact remains that Quebec civil law is rooted in concepts peculiar to it, and while it may be necessary to refer to foreign law in some cases, the courts should only adopt what is consistent with the general scheme of Quebec law.[124]

This passage clearly illustrates the complexity that results from implementation of the law when similar legislative language is used to regulate of situations governed by different legal traditions. The same term may thus have many meanings depending on the tradition to which it belongs because of the other rules that make up the whole of the scheme of application. Herein lies the entire complexity caused by the variety of sources of Quebec civil law and its application in a bijural context. The incorporation of rules must be considered in accordance with the framework of the receiving system, and which differs from one tradition to another. It is therefore when the specificity of a tradition is recognized that the use of comparative analysis can be used to its fullest to understand the meaning of the rule based on its origin, its incorporation and its implementation.

When the Civil Code of Quebec came into force in 1994, the need to interpret the new provisions in light of varied sources led to increasingly frequent recourse to comparative legal analysis,[125] while at the same time respecting the civil law.[126] Unlike the period during which Mignault J. sat on the Supreme Court, protection of the integrity of civil law was no longer an issue. The mixed nature of Quebec law and the essentially civil law nature of its categories and interpretation characterise Quebec law in relation to the common law and also to European civil law. Its coming to maturity necessarily contributed to the recognition of its integrity and distinctive features. At least with respect to the interpretation of the Civil Code, the conceptual autonomy of Quebec civil law now appears to be established.

Moreover, with the recognition of the conceptual autonomy of Quebec civil law, how it may have influenced more recent Supreme Court judgments may be interesting in looking at the relationship between civil law and common law. Although some claim that the influence of the traditions no longer goes in only one direction—from common law to civil law[127]—it is an exaggeration to say that the common law has frequently drawn on civil law. There are of course several examples in which the Supreme Court has referred to civil law decisions. This was the case in Rivtow Marine Ltd. v. Washington Iron Works,[128] in which the Court cited Ross v. Dunstall[129] on manufacturer's liability. It is interesting to note that, in Ross v. Dunstall, the Supreme Court interpreted article 1053 of the Civil Code of Lower Canada ensuring that its interpretation was not inconsistent with a rule established by English precedent. In Sorochan v. Sorochan,[130] it cited Cie immobilière Viger Ltée v. Lauréat Giguère Inc.,[131] but only for comparison as the basis of unjust enrichment can also find basis in common law. In another case, that of Arndt v. Smith,[132] McLachlin J. cited Laferrière v. Lawson[133] in support of her reasons on the balance of probabilities test in evaluating causation. Despite the variying levels of influence of civil law in these examples, they nevertheless illustrate an increased receptivity to comparative analysis of Canadian common law with Quebec civil law.

In family law, and more particularly with regard to child custody, the Court has seen fit to consider common law decisions in its civil law judgments, and vice versa, while recognizing the conceptual differences of the concepts in both traditions. The dialogue established between the two traditions in this field with regard to questions involving children, may be explained by a common thread running between them relating to the basis for every decision concerning children: the concept of the best interest of the child. This shared principle encourages common solutions, even if the reasons expressed based on the concepts specific to each tradition differ. L'Heureux-Dubé J.'s comparison in Gordon v. Goertz[134] which is based on the distinctions established on the concept of custody in C. (G.) v. V.-F. (T),[135] is a good example of this trend, as is the analysis in W. (V.) v. S. (D.).[136]

Furthermore, when the issue before the Court concerns universal values, there is a more pronounced tendency to mention the rules and solutions of either tradition. This finds expression in the decisions, for example in matters pertaining to human rights and freedoms,[137] including questions related to the protection of the fetus and the rights of the mother. The use of Montreal Tramways Co. v. Léveillé[138] or Tremblay v. Daigle[139] in Dobson (Litigation Guardian of) v. Dobson[140] and Winnipeg Child and Family Services (Northwest Area) v. D.F.G.[141] reflect this bridging of the gap between the two traditions. Each of these judgments, regardless of the question to be decided, turned on the same fundamental characterisation: the legal personality of the fetus before birth.

The dialogue between the traditions in the Supreme Court's decisions is consistent with the idea that the Supreme Court is more than a court of appeal for each of the provinces. Its position forces it to avoid unique solutions whose impact would be limited to the rights of the parties before it. In its decisions, and particularly the most recent ones, the Court appears to be motivated by a desire to consider the effect of its decisions in all jurisdictions, both civil and common law, while respecting the characteristics particular to each of them.

In these new directions taken by the Court, there appears to be a more pronounced reciprocal influence between traditions as comparative analysis becomes increasingly prominent in its judgments. There is also a more marked tendency toward universalism in the basis for solutions and in the solutions themselves, while the expression of the principles varies from one tradition to the other. This kind of unification through persuasion is very different from the unification of the law as it was exercised at the turn of the twentieth century, when unification generally meant assimilation of civil law by common law. This trend is somewhat related to the internationalisation of the law, which espouses a more universal language of law. It reflects the principle that there are universal values in both systems, which transcend mere statements of specific rules.

The comparative tendency of the Court could not have come about until the conceptual autonomy of civil law with respect to common law was recognized. Comparison can only stimulate consideration of the bases and solutions of each of the traditions to the extent that they are seen as equals, neither being less good or better than the other as a whole.

However, the Supreme Court's confirmation of civil law's conceptual autonomy and full equality with common law developed in the context of the interpretation of provincial rules. The question of the respective places of the two traditions is framed in different terms when considering how the legal duality developed in the federal context and how civil law managed to play a role in the interpretation of federal law.

B – The confirmation of the complementary relationship between civil law and federal law

Although Quebec civil law has succeeded in becoming conceptually autonomous from the common law, this factor alone is not sufficient to form the basis of the existence of a legal duality at the federal level. Although this autonomy is a necessary pre-condition for establishing such a duality, the rules of civil law must also be applicable in at this level; they have to be relevant to the application of federal law.

Despite the existence of Canadian bijuralism in practice, the answer to the question of whether there exists a complementary relationship of between civil law, as provincial law, and federal law, is not obvious. Although the complementary relationship between provincial laws and federal law has been discussed by legal scholars,[142] it was only after the Supreme Court formally denied the existence of a federal common law that this idea could develop to its full potential.

For a long time, the courts upheld the idea that there was a federal common law in all matters falling within the jurisdiction of the federal government.[143] At the constitutional level, it turns on the interpretation of section 101 of the Constitution Act, 1867. Its relevance and the judgments that contributed to the confirmation of the existence of a federal common law are related to the determination of the jurisdiction at the Federal Court that was established "for a better administration of the laws of Canada".[144] For a long time, the jurisdiction of the Federal Court was thought to mirror the areas falling under the federal government's jurisdiction pursuant to section 91 of the Constitution Act, 1867, whether or not federal legislation existed.

It was through the interpretation of the scope of section 101 of the Constitution Act, 1867 that the Supreme Court opened the door to the recognition of bijuralism with respect to federal legislation. Used as the basis for the jurisdiction of the Federal Court, the expression "laws of Canada", was given a narrow interpretation.

The Supreme Court thus framed the relationship between federal law and provincial law with respect to the interpretation of federal law in a new way. The notion of an unwritten suppletive federal common law applicable throughout the country for all matters falling within the jurisdiction of the Government of Canada has been rejected. For there to be "laws of Canada", there must be, in principle, a federal statutory text. This can be drawn from Quebec North Shore Paper Co. v. Canadian Pacific Ltd.,[145] McNamara v. R.[146] and R. v. Thomas Fuller Construction Co. (1958) Ltd.[147]

In Quebec North Shore, the Supreme Court reversed the conclusions reached in the first instance and on appeal by the Federal Court, holding that the jurisdiction of the Federal Court included all matters falling within federal legislative authority. It also rejected the argument that a provincial statute applicable to a situation in respect of which the federal government could legislate would become part of federal law through referential incorporation.[148] The Court reframed its conclusions in McNamara, stressing that it was not enough for the federal government to have the power to legislate in an area for there to be "laws of Canada", but that it had to have acted.[149] Then, in Fuller, the Court stated that even if a federal law regulated part of a legal situation falling within the jurisdiction of the federal Parliament, issues related to ancillary powers in a field regulated by provincial law did not constitute federal law, unless those powers were required for the effective exercise of Parliament's authority.[150]

However, the existence of a federal common law has not been entirely rejected since the jurisdiction of the Federal Court may found in and act, regulation or the common law.[151] Federal common law does in fact exist but in some areas, such as maritime law[152] and with respect to aboriginal title.[153] These exceptions will not be addressed here. There is also a federal common law that applies to the Crown in right of Canada.[154] Its scope is however limited, as established by these decisions and as recognized by legal scholars.[155]

The decisions in Quebec North Shore, McNamara and Fuller have often been criticised because of the byzantine distinctions they created with respect to the jurisdiction of the Federal Court. They appear to produce outcomes that are not very practical at the procedural level, especially with respect to litigation involving the Crown in right of Canada in matters of civil liability.[156] While these decisions generate criticism at the procedural level, their effect on the recognition of a true complementary relationship between provincial law and federal law is clear. This is not generally discussed in legal commentary as the point of view put forward is related to procedural problems created by the dissociation of the rules of federal law from the institutions governed by provincial law. And yet, it is essential to the understanding and confirmation of Canadian bijuralism applied to the federal level.

Aside from their direct application to the procedural issues they resolved, the impact of these decisions is to allow for two fundamental conclusions to be drawn, that are critical to the establishment of a complementary relationship between provincial law and federal law. The first is that, since federal law is not autonomous, it must, in order to apply where federal law is silent, have a basis in provincial law rather than in a purely federal common law. The second is that, in the absence of a federal common law, provincial law must serve as the general law for federal law.

The first conclusion alone does not prove a true relationship of complementarity between provincial law and federal law. Before the decision in Quebec North Shore, it was generally believed that a federal common law did exist and that the expression "laws of Canada" could be broadly construed. Any rule that was applied in an area falling under authority of the Parliament of Canada pursuant to section 91 of the Constitution Act, 1867 constituted a law of Canada. However, if there was no act or regulation of Parliament, or common law precedent applicable in that area, the courts had regard to provincial law to properly regulate situations falling within that area. Federal law was not entirely autonomous since the provincial rules formed a relationship of complementarity with the rules that were specific to federal law.

However, this relationship did not establish true complementarity. Federal law could certainly draw on concepts from provincial law in order to fill for its gaps, but once they had become part of federal law by referential incorporation, there was no longer complementarity but assimilation. Depending on the situation, the incorporation of a provincial law rule transformed it into a federal law rule. The difficulty that then arose was one of recognition. The complementary relationship was limited to an implicit reference to provincial law, the effect of which was incorporation by reference. Through incorporation, the federal law was seen as a whole, subject to its own rules of interpretation and the characteristics of the provincial law were lost.

Here lies the true problem, especially for civil law. If the idea of a federal law, made complete through incorporation of provincial rules had survived, the civil law concepts that served to fill the gaps, such as in matters of contracts, would have been interpreted on the basis of precedents of federal law. A common law unique to federal law and different from the various common laws in the provinces would have developed in its own context. Federal law precedents, applicable to all legal situations falling within federal legislative authority, would also have applied in the same way to situations created in the civil law context and to those created in a common law context.

If this were the case, the distinctive features of the civil law concepts would not have been recognized. By interpreting civil law concepts on the basis of federal common law precedents, the interpretation of both common law and civil law institutions would have been done without regard to the distinctive features of both traditions. This common basis for interpretation would have created a uniform rule for the civil law and common law. Unlike the assertion of the specific nature of the civil law in the interpretation of the Code and of the civil law rules in a strictly provincial context, this specificity would have been lost in a federal context. The same concepts would no longer have been considered in an autonomous conceptual framework, but as an integral part of federal law. A different meaning would have been developed through assimilation as to meaning and reasoning to common law concepts.

The impact of the decisions in Quebec North Shore, McNamara and Fuller on the need to better understand the complementary relationship between federal law and Quebec law is significant. The acknowledgement of this relationship between federal law and provincial law could only have come about with the acceptance of the idea that there is no federal common law. Even simply on a symbolic level, the rejection of an autonomous federal law and a separate federal common law means that civil law, as a system, could be considered and be recognized as an equally important tradition at the federal level. This could then lead to true complementarity between Quebec civil law and federal law.

But the federal law's lack of autonomy alone is not enough to allow for the development of a relationship of complementarity. It is not complete without the idea that provincial law is the general law for federal law.

Provincial law can only have a role as the general law for federal law if there is no federal common law for all areas falling under federal legislative authority. If an unwritten federal common law did exist, when the law was silent, this common law would apply rather than provincial law that acts as a backdrop to federal law. With this kind of corpus of rules, provincial laws, whether based on civil law or common law would have no impact on the framing of the rule. The case of maritime law is a good example of how provincial law is excluded from its development and how the federal common law specific to maritime law serves as the general common law in this area.

Thus, since Quebec North Shore, McNamara and Fuller, that which constitutes property and civil rights under subsection 92(13) of the Constitution Act, 1867 does not fall under federal jurisdiction simply because some of the concepts from provincial law are required to implement of a federal rule. The issue of determining which law applies where federal law is silent is fundamental to the development of bijuralism at the federal level.

Identification of the rules that apply where the law is silent is quite complex and requires a more complete analysis that goes beyond the objectives of this paper. However, it would be worthwhile to mention that the way complementarity comes into play with the background of provincial law cannot be fixed at once so as to apply to all situations. For example, when the general law is that of the common law provinces, in principle, this general law is established by the provincial common law (the principles established by court decisions). However, the complementary relationship between federal law and provincial law may also be established with common law and the specific legislation when the legal rules and framework set out in the statutes are required for the implementation of federal law.

The same is true for Quebec. Although the main source of civil law in Quebec is the Civil Code, "[t]he Civil Code does not contain the whole of civil law. It is based on principles that are not all expressed there, which it is up to case law and doctrine to develop […]"[157] In principle, the Code and the general principles of law are considered to be the general law[158] and will be suppletive to the federal law.[159] Federal law, however, can also establish a complementary relationship with the corpus of Quebec private law, including the rules set out in specific legislation, as it does with the common law provinces.

Thus, in the absence of federal statutory provisions that expressly establish a dissociation from provincial laws, federal law is interpreted as a law that acts as an exception to the rule of law set by the general laws of the provinces. It may appear in a broader relationship of complementarity with the entire legislative corpus of the provinces, including specific legislation, as in subsection 72(1) of the Bankruptcy and Insolvency Act.[160] The Supreme Court of Canada has in fact confirmed this complementarity between federal law and provincial law.[161]

Therefore, complementarity comes into play in various ways with different backdrops. But whatever form complementarity takes between provincial law and federal law, it confirms the dialogue between the two levels.

Through the complementarity of federal and provincial law and the equality of traditions, the expression of bijuralism at the federal level has become more than a simple statement about the co-existence of traditions. When they apply federal laws that do not exclude provincial laws, judges must recognize, with respect to Quebec law, the concepts that are specific to Quebec civil law when applying the law, which is superimposed in several areas against the backdrop of Quebec law. This need to refer to Quebec law, even for the application of federal law, could only exist with the recognition of the full equality of Quebec civil law with the common law of the other provinces.

Conclusion

While under assault for a long time at the Supreme Court, civil law has fully acquired a conceptual autonomy. This autonomy has allowed Quebec civil law to have equal recognition with common law. This movement of acquisition of autonomy with the rejection of a federal common law for all areas falling under federal legislative authority has contributed to a better expression of Canadian bijuralism in the current context.

Because of constant changes in the perspective on the relationships between civil law and common law, and between federal law and provincial law, the Supreme Court of Canada has promoted the growth and development of a vision of Canadian legal duality. More than a factual co-existence, this legal duality is now considered to be an essential feature of the implementation of federal law, requiring a constant dialogue between traditions.

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