CLAUSE 8 OF BILL S-4:
AMENDING THE INTERPRETATION ACT

6. Interpretation Act: Amendment Proposals

The proposal to amend the Interpretation Act[54] is composed of clauses 8.1 and 8.2.

Duality of legal traditions and application of provincial law

8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

Tradition bijuridique et application du droit provincial

8.1 Le droit civil et la common law font pareillement autorité et sont tous deux sources de droit en matière de propriété et de droits civils au Canada et, s'il est nécessaire de recourir à des règles, principes ou notions appartenant au domaine de la propriété et des droits civils en vue d'assurer l'application d'un texte dans une province, il faut, sauf règle de droit s'y opposant, avoir recours aux règles, principes et notions en vigueur dans cette province au moment de l'application du texte.

Terminology

8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

Terminologie

8.2 Sauf règle de droit s'y opposant, est entendu dans un sens compatible avec le système juridique de la province d'application le texte qui emploie à la fois des termes propres au droit civil de la province de Québec et des termes propres à la common law des autres provinces, ou qui emploie des termes qui ont un sens différent dans l'un et l'autre de ces systèmes. 

Cl. 8.1 opens with a statement of fundamental principle:

Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada …

Le droit civil et la common law font pareillement autorité et sont tous deux sources de droit en matière de propriété et de droits civils au Canada …

In contrast with the remainder of that provision and with cl. 8.2, both of which are framed as principles or rules of interpretation, this introductory clause is more principled and less instrumental in nature and addresses the more general issue: where does one find "the law of property and civil rights in Canada"?

To what is the general principle or purpose proclaimed in these introductory words intended to apply? This opening clause is not expressly limited to federal law and federal enactments. On its face, for example, it seems to be making the common law and civil law "equally authoritative"/"pareillement autorité" throughout Canada. Would this apply to the provinces? Is civil law equally authoritative in Saskatchewan; and is the common law equally authoritative in Quebec? What is left unstated in this opening clause, however, is the implicit limitation imposed by the division of legislative powers contained in ss. 91 and 92 of the Constitution Act 1867. Parliament has no jurisdiction to legislate in relation to provincial areas of jurisdiction nor does it have any power to legislate in relation to provincial laws. A federal enactment cannot clothe provincial laws with a specified nature, character or source. It follows that the principle that "Both the common law and the civil law are equally authoritative… in Canada"/"Le droit civil et la common law font pareillement autorité… au Canada" has application to federal laws only. This constitutional limitation is recognized by subs. 3(1) of the Interpretation Act which limits the application of provisions of that Act to federal legislation.

Moreover, included among the purposes of Bill S-4 are the following recitals contained in the Bill's preamble:

"Whereas the harmonious interaction of federal and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions, as the case may be;

Whereas the objective of the Government of Canada is to facilitate access to federal legislation that takes into account the common law and civil law traditions, in its English and French versions …"

The object of the Bill is therefore expressly intended to be limited to "federal legislation". Recalling the words of the late Mr. Driedger, adopted in Re Rizzo & Rizzo Shoes Ltd.:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".[55]

Equally, "Both the common law and the civil law are… recognized sources of the law of property and civil rights in Canada"/"Le droit civil et la common law… sont tous deux sources de droit en matière de propriété et de droits civils au Canada" reflects a principle that is applicable to federal laws. Implicit in this conclusion is that Parliament has constitutional jurisdiction to make laws that relate to property and civil rights. But does not such a conclusion fly in the face of ss. 91 and 92 of the Constitution Act 1867 which expressly confer on the provinces exclusive jurisdiction to makes laws in relation to property and civil rights in the province?

This takes one back to the discussion above of the older and much wider scope and meaning in Canadian constitutional law of the phrase "property and civil rights", as a formula for describing private law matters. As noted above, private law is broad enough to include laws regulating property or relationships between private persons, as well as laws that establish regulatory or administrative schemes in relation to such matters. Moreover, private law concepts may appear interstitially and as elements or components of legislation that is unquestionably public law in nature such as in the area of criminal law.

The opening words of cl. 8.1 therefore give statutory imprimatur to the principle that both the common law and the civil law are "equally authoritative"/"font pareillement autorité" and are "recognized sources of the law of property and civil rights in Canada"/"sont tous deux sources de droit en matière de propriété et de droits civils au Canada". Being equally authoritative, neither the civil law nor the common law is superior to, or more authoritative than, the other as regards "the law of property and civil rights in Canada"/"en matière de propriété et de droits civils au Canada". At the same time, both "are recognized sources of the law…"/"sont tous deux sources de droit…" Federal legislation depends on specific concepts and principles and on particular terminology to express itself. The opening clause of cl. 8.1 therefore enunciates two principles: (1) the common law and the civil law represent two, but not necessarily the only, sources of concepts, principles and terminology employed by federal law to describe elements relating to property and civil rights; and (2) those two sources are equally authoritative. Because concepts, principles and terminology cannot usually be fully understood and applied without an appreciation of how they are expressed and what they mean according to the system of law with which they are associated, this aspect of cl. 8.1 therefore provides a sort of road map indicating the common law and the civil law as routes to fully understanding and applying federal law.

The common law and the civil law are "recognized sources"/"tous deux sources" of federal private law. "Sources" here, in both the English and French versions, is unqualified by any definite article. Cl. 8.1 does not state that the common and civil law are "the recognized sources"/"tous les deux sources…", but only "recognized sources"/"tous deux sources". That implicitly leaves room for the operation of, and recognizes there to be, other sources of the law of property and civil rights in Canada. In other words, while the common law and the civil law are equally authoritative sources of concepts, principles and terminology employed by federal law to describe elements relating to property and civil rights in Canada, those two sources are not necessarily the only sources the private law elements of Canada's federal law. The purpose of the first part of cl. 8.1 therefore goes no further than to ratify the equal standing and authoritativeness of the common law and the civil law inter se. Nothing in the provision confers on either or both of the two systems of law any sort of exclusive character as a source of the private law elements of federal legislation.

The second half of cl. 8.1 expressly characterizes itself as an aid to statutory interpretation:

"… if in interpreting an enactment…"/"… en vue d'assurer l'application d'un texte…"As a comparison of the English and French texts reveals, whereas the former speaks of "interpreting an enactment", the French text refers to "l'application d'un texte". In other words, on the basis that the English version reflects a common law approach and the French version reflects the approach of the civil law, the former uses general rules of statutory construction as aids to "interpretation" of the language of the enactment in question; however, the civil law uses such rules to assist in "l'application" of the enactment under consideration. Cl. 8.1 is therefore an illustration of these two techniques of applying a principle of interpretation to a particular situation and of how this conceptual contrast is mirrored in terminological differences between the English and French versions of the clause.

The applicability of the latter part of cl. 8.1 turns on whether "in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights". First, there must be an "enactment", a term defined in subs. 2(1) of the Act to mean an Act of Parliament or "regulation". The interpretation provisions of subs. 2(1) proceed to define "regulation" very broadly to include all manner of authority exercised pursuant to an Act of Parliament or the prerogative.

The second condition is that it is "necessary to refer to" provincial rules, principles or concepts. In the context of "interpreting an enactment", it is implicit that recourse to provincial rules, principles or concepts is "necessary" for the purpose of interpreting and applying the federal enactment. If a federal enactment, expressly or impliedly, relies on a provincial rule, concept or principle that relates to "property and civil rights", it may not be possible to fully understand and apply the federal enactment without recourse to that provincial rule, concept or principle. Reference to the latter is therefore "necessary" in order to accurately interpret and apply the federal enactment. On the other hand, if a federal enactment contains an element that is private law in nature, i.e., that relates to "property and civil rights", but that private law element in no way relies on or refers to a provincial rule, concept or principle relating to "property and civil rights", then recourse or reference to any such provincial norm would not be "necessary" to the comprehension or application of that element of the enactment. In such a case, this part of cl. 8.1 would have no application. For example, under s. 21.1 of the Divorce Act,[56] the court has the power to refuse an application for divorce if the petitioner refuses to remove "barriers to the remarriage of the [respondent] within the [respondent's] religion" which are within the petitioner's control. The provision therefore has in mind "barriers to remarriage" that find their source in the respondent's religion. In other words, neither civil law nor common law is the source of the private law element of this particular federal legislative provision.

The latter part of cl. 8.1 therefore makes express what has heretofore been an implicit constitutional principle, namely, that provincial common law and civil law underlie and offer interstitial support for many of the private law elements of federal enactments. For example, the Federal Real Property Act [57] and many of the offence provisions of the Criminal Code cannot be understood without an appreciation of the concept of ownership of property and the rules and principles governing it. In the absence of federal provisions that comprehensively regulate this particular matter, it is necessary to turn to the appropriate provincial private law to fully understand this matter for purposes of the operation of these federal enactments.

But which province's rules, principles and concepts are referred to? According to the French version, it is the rules, etc. "en vue d'assurer l'application d'une texte dans une province". After all, legislation is not construed in the abstract but in order to apply it to a particular set of circumstances. One such material circumstance is the province in which the enactment will apply. The English version is less clear, leaving to necessary implication that "province" in the phrase "if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts" is meant to refer to the province in which the enactment is being applied. Why, it may be asked, would it be "necessary to refer" to a particular province's rules, principles or concepts other than for purposes of the operation and application of the federal enactment in that province.

While the duty of reference applies to "the rules, principles and concepts in force in the province" without the earlier qualification of "forming part of the law of property and civil rights", there is no doubt that the object of the duty here, namely, "the rule, principles and concepts", is intended to be "a province's rules, principles (and) concepts forming part of the law of property and civil rights".

Of course, rules, principles and concepts evolve and change over time. As of what date would the cl. 8.1 duty of reference be triggered? Since, as noted above, the principal purpose of the Interpretation Act is as an aid to the interpretation, and hence application, of federal legislation, the critical moment in time is when the legislation is being applied. That is why cl. 8.1 expressly provides that reference is to be made to the rules, principles and concepts "in force.. at the time the enactment is being applied"/"en vigueur… au moment de l'application de texte". This provision therefore would have an ambulatory effect in relation to any such referenced rules, principles or concepts.

In contrast with this concern of cl. 8.1 with a reliance on or reference to "a province's rules, principles or concepts", cl. 8.2 focuses on the "terminology" or "texte" actually used by a federal enactment. But would not even the most veiled reference to a rule, principle or concept have to be adverted to in some way by means of "terminology" or "texte"? What then is the special purpose of cl. 8.2?

This provision would only have application

…when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law…

… le texte qui emploie à la fois des termes propres au droit civil de la province de Québec et des termes propres à la common law des autres provinces, ou qui emploie des termes qui ont un sens différent dans l'un et l'autre de ces systèmes.

Cl. 8.2 would therefore only operate where a federal enactment expressly employs a limited class of legal terminology. That terminology is limited to civil law and common law terminology. Based on the constitutional discussion above, any such civil and common law terminology would be limited to matters relating to "property and civil rights", that is, to rules, principles and concepts of a private law nature. The apparent overlap or duplication between the latter part of cl. 8.1 and cl. 8.2 can be explained by the different purpose that each provision is intended to serve.

Cl. 8.1 only operates "if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights". When such a condition would obtain was discussed above. Although the condition for the operation of cl. 8.2 is where common law and/or civil law terminology is used in a federal enactment, the use of such terminology may signify that the federal enactment is referring to a provincial rule, principle or concept relating to property and civil rights. On the other hand, it is not strictly necessary for the operation of this aspect of cl. 8.1 that a federal enactment contain either or both civil law and common law terminology. All that cl. 8.1 requires is that for purposes of interpreting or applying that enactment "it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights"/"il est nécessaire de recourir à des règles, principes ou notions appartenant au domaine de la propriété et des droits civils". That "necessity" may therefore be generated by an express reference, or by an implicit gap or reference in that federal enactment

However, while that single federal enactment may trigger the application of both cl. 8.1 and cl. 8.2, the results of applying both are not the same. The duty imposed by cl. 8.1 is to refer to the appropriate province's rules, principles and concepts forming part of the law of property and civil rights. This aspect of cl. 8.1 is silent on the civil law/common law dichotomy. It is true that an implicit recognition of that dichotomy can be discerned in the prescription at the end of the provision that reference must be made to "the rules, principles and concepts [forming part of the laws of property and civil rights] in force in the province…" In Quebec, those "rules, principles and concepts" would usually have their source in the civil law, whereas in the other provinces that source would be the common law.

Nevertheless, the latter part of cl. 8.1 appears to be framed with a broader purpose in mind. In requiring that reference be made to the rules, principles and concepts "in force in the province" where the federal enactment is being applied, cl. 8.1 makes no distinction among the provinces. Implicit in this aspect of the clause is the recognition that, even among common law provinces, the rules, etc. may well differ from one province to another. Consequently, cl. 8.1 is prescribing a general principle that if for purposes of interpreting or applying a federal enactment it is necessary to refer to provincial rules, principles or concepts of forming part of property and civil rights, then reference must be made to the rules, etc. in force in the province, whatever province it may be and whether that province is Quebec or one of the common law provinces, where and when the enactment is being applied.

Moreover, cl. 8.1 is silent on the interpretive significance of a federal enactment using language that is peculiar to the common law or civil law. For example, a federal enactment's reference to the death of an individual may, for purposes of its interpretation and application, require recourse to rules, principles or concepts of provincial private law. At the same time, "death" cannot be characterized as civil law or common law terminology. Therefore, cl. 8.2 would have no application to this element of the enactment. However, if the enactment went on to provide for "inheritance" and "succession" as one of the consequences of death, cl. 8.1 and cl. 8.2 both would likely apply: cl. 8.2, because "inheritance" and "succession" are common law and civil law terms; and cl. 8.1, because both are "concepts forming part of the law of property and civil rights" and because in interpreting and applying the enactment, it is "necessary to refer to those provincial concepts forming part of the law of property and civil rights".

The centre of attention of cl. 8.2 is, therefore, the use of civil law and common law terminology in describing a particular element of a federal enactment. The two alternative scenarios described in the clause are: (1) where both civil law and common law terminology are used; and (2) where the terminology that is used has a different meaning in the civil law and in the common law.

Scenario (1) is illustrated by federal legislation that refers to "real and personal property" and to "un bien meuble ou immeuble".[58] "Real and personal property" are exclusively common law concepts which are nowhere to be found in either the former or the new Civil Code. However, the French version of subs. 419(2) refers to "un bien meuble ou immeuble", which is civil law terminology used to identify property concepts and found in both the old and the new Codes. Consequently, it may be concluded that subs. 419(2) "contains both civil law and common law terminology"/"le texte qui emploie à la fois des termes propres au droit civil de la province de Québec et des termes propres à la common law des autres provinces".

The commonly used "lease"/"bail" in federal enactments illustrates scenario (2). It is doubtful that the civil law and common law of leases or landlord-tenant law is the same. In other words, where these terms are used in federal legislation, that terminology can be said to have "a different meaning in the civil law and the common law". So, for example, a federal enactment like s. 189(1) of the Canada Labour Code would contain "terminology that has a different meaning in the civil law and the common law"/"le texte… qui emploie des termes qui ont un sens différent dans l'un et l'autre de ces systèmes".

The foregoing examples underscore an essential feature of both cl. 8.1 and cl. 8.2, namely, that they are language-neutral. Neither refers to the two official languages. Nor is any link made in those two provisions between civil law and French, on the one hand, or the common law and English, on the other. And yet, as commentators have pointed out, language has played a crucial role in the character of bijuralism in Canada and in the almost 400-year old evolution of Canada's two legal systems. It could hardly have been otherwise where neither system is entirely home‑grown but has been borrowed and adapted from French civil law and English common law. It is not surprising, then, that it is sometimes difficult to translate French civil law terminology into English and English common law terminology into French. Moreover, translated statutes may be misleading. Simply because identical words are used in the French and English language versions of the Quebec Civil Code and of Manitoba and New Brunswick statutes does not mean that those words have the same meaning in Quebec and the two common law provinces. Conversely, the presence of different terminology in the Code and in the statutes of the common law provinces does not necessarily signify that the words do not have the same meaning.

As many of the consequential amendments contained in Bill S-4 indicate, much effort has been dedicated to reducing the language-centred nature of each system. So, for example, the proposed amendments to the Federal Real Property Act would, in the English version, supplement "real property" with "immovables"; and in the French version, supplement "immeubles" with "biens réels". In other words, each language version would employ both civil law and common law terminology to describe this particular concept.

In any event, if either condition specified in cl. 8.2 is met, the consequence is the unsurprising one that

The civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

est entendu dans un sens compatible avec le système juridique de la province d'application

Again, as in the case of art. 8.1, the French version of cl. 8.2 is more precise. It is not simply that "the common law terminology or meaning is to be adopted in the other provinces", but it is the common law terminology or meaning "compatible avec le système juridique de la province d'application". The French version recognizes that common law terminology or meaning may vary among the common law provinces. However, the only terminology or meaning that matters in any particular circumstances is that associated or compatible with the laws of the province in which the federal enactment is being applied.

Finally, the interpretive principles prescribed by the latter part of cl. 8.1 and by cl. 8.2 are both subject to an express general exception: "unless otherwise provided by law"/"sauf règle de droit s'y opposant". In the case of cl. 8.1, there appear to be two point in the interpretive process where such a federal enactment could "otherwise provide". Federal legislation may make it "unnecessary to refer" to provincial private law principles, or may express an intention that reference not be made to rules, etc. of the province concerned. For example, such legislation could so comprehensively define its terms as to implicitly exclude any reference to provincial private law as the external source of interpretation and application. Federal legislation could also expressly refer to some other external source of interpretation thereby demonstrating a contrary intent as regards it being "necessary to refer to a province's rules…"

In the case of cl. 8.2, federal legislation relying on this general exception would be directed at modifying the consequences there prescribed: "the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces"/"est entendu dans un sens compatible avec le système juridique de la province d'application". So, notwithstanding that federal legislation uses both civil law and common law terminology, that legislation could, for example and contrary to the interpretive consequences of cl. 8.2, expressly provide that the civil law terminology is to be adopted in the common law provinces, that the common law terminology is to be adopted in Quebec, or that a third, quite different, meaning is to be adopted.

It may be asked why this general exception appears at all in these two clauses. After all, subs. 3(1) of the Act already provides that "every provision of this Act applies, unless a contrary intention appears". This subsection would apply to cl. 8.1 and cl. 8.2 with the result that those provisions apply, subject "a contrary intention". What additional purpose is therefore served by the special exception provided for in cl. 8.1 and cl. 8.2?

Within the Interpretation Act, those two clauses would not be unique in that regard: comparable exceptions are to be found in subss. 8(1), 8(2.1), 8(2.2) and 15(2). Nevertheless, whereas subs. 3(1) of the Act is framed in general language and is directed at "every provision" of the Act, the general "exception" in question employs much more precise language. In the case of subs. 3(1), it is whether "a contrary intention appears"/"sauf indication contraire". This is rather weaker language that cl. 8.1 and cl. 8.2 that speak of "otherwise provided by law"/"règle de droit opposant". It is not enough that the contrary intention "appear" or be simply an "indication". It must be in the form of "law"/"règle de droit"; and that "law"/"règle de droit" must be "otherwise provided"/"opposant". To trigger the general exception in cl. 8.1 and cl. 8.2 therefore requires a "law" to the contrary, that is, a legislative provision to the contrary or "règle de droit opposant".

Now subs. 3(1) is itself a "provision of this Act" to which subs. 3(1) applies. Consequently, it is subject to the principle of "contrary intention" in that subsection. Based on the foregoing analysis, any such contrary intention is probably weaker than that provided for in cl. 8.1 and cl. 8.2 and therefore more easily triggered and pushed aside by a "contrary intention". The effect of the general exceptions in cl. 8.1 and cl. 8.2 may therefore be to oust the application of subs. 3(1).

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