THE PLACE OF PRIVATE LAW IN FEDERAL LEGISLATION:
THE ST-HILAIRE CASE AND
BIJURAL TERMINOLOGY RECORDS
André Ouellette, Lawyer
Mathieu Legris, Lawyer
Department of Justice Canada
The year 2001 witnessed several significant developments in Canadian bijuralism. First, the Federal Court of Appeal issued a judgment in a case from Quebec in which it considered the role played by provincial private law in the application of federal legislation. Then, the Parliament of Canada enacted the first harmonization amendments to federal statutes, some affecting tax legislation. In the wake of these amendments, bijural terminology records explaining the harmonization changes were prepared by the Department of Justice of Canada [“the Department of Justice”].
This article will discuss these two topics as they relate to the interaction of federal legislation with civil law. The case of Canada v. St-Hilaire will be considered, with particular attention to the place of private law in the application of federal statutes, including tax legislation. This section will be followed by a presentation on bijural terminology records.
Recently, the Federal Court of Appeal, in the St-Hilaire case, dealt with the place of provincial private law in the application of federal legislation. Although the legislation in question in that case was not tax legislation, the approach taken by the Federal Court of Appeal is of interest to tax practitioners since the principles discussed in it are applicable to all federal legislation.
In that case, the Federal Court of Appeal had to rule on the entitlement of the respondent, Constance St-Hilaire, to the benefits provided by the Public Service Superannuation Act. Ms. St-Hilaire pleaded guilty to a reduced charge of manslaughter for the murder of her husband, Mr. Morin, who was a member of the Public Service of Canada and a contributor to the superannuation plan. Ms. St-Hilaire claimed the allowances prescribed in the Superannuation Act as heir of her husband's succession and as surviving spouse. The Treasury Board refused her claim on the basis of the public policy rule that no one may profit from his own crime.
The significance of the judgment lies in the analysis conducted by Mr. Justice Décary of the interaction of the provisions of a federal statute with private law. With the concurrence of his colleagues, Mr. Justice Décary concluded that resort must be had to the civil law of Quebec, and not the common law, in order to apply the federal statute in Quebec. Several basic concepts should first be reviewed for a better understanding of the decision.
Generally speaking, federal legislation does not stand alone. It relies to a great extent on private law concepts in order to be effective. It is not enough to say that a federal enactment is one of public law in order to oust provincial private law. One must go further and determine whether the enactment affects taxpayers' civil rights. There are two choices open to Parliament in defining the private law terms and concepts required for its legislation to apply. First, it may provide its own rule. It is then said that there is dissociation between the federal enactment and the private law of the provinces. On the other hand, Parliament may decide not to intervene. Where it employs a private law concept without defining it, reference must generally be made to the applicable private law in order to interpret the relevant concepts where civil rights are affected. In this case, there is complementarity between the federal enactment and the private law of the provinces. Such complementarity exists with the private law of all of the provinces, that is to say, with the civil law of Quebec as well as with the private law of the other provinces. Professors Brisson and Morel eloquently summarize the cases where complementarity appears:
Whenever a federal statutory provision uses a private law concept without defining it or otherwise assigning some specific meaning to it, and whenever a statute falls short of comprehensively governing a question of private law or lacks a formal incorporating provision, the omission must be remedied by referring to one of the two legal systems in force.
In tax matters, the courts generally apply the principle of complementarity between the federal enactment and provincial private law. Although a federal statute such as the Income Tax Act deals with public law matters, the legislation applies in a number of circumstances on the basis of the effects determined by private law. The comments of Raymond Décary J. of the Federal Court may be cited to that effect:
In my opinion fiscal law is an accessory system, which applies only to the effects produced by contracts. Once the nature of the contracts is determined by the civil law, the Income Tax Act comes into effect, but only then, to place fiscal consequences on those contracts. Without a contract, without a law and an obligation, there can be no fiscal levy. Application of the Income Tax Act is subject to a civil determination, whether such a determination be according to civil or common law.
It is in the light of these basic concepts that the St-Hilaire case will be examined. The issue that will be front and centre is whether the federal statute in question, the Superannuation Act, permits recourse to the civil law of Quebec to provide for its application to a dispute from Quebec, or whether the common law rules complete that Act as suppletive law.
The point of departure for this case is the death of Mr. Morin, caused by his wife, Ms. St-Hilaire. Charged with the second degree murder of her husband, she pleaded guilty to a reduced charge of manslaughter. Mr. Morin was a member of the Public Service of Canada and as such had contributed for nearly twenty-five years to the pension fund under the Superannuation Act. Under this statute and since the couple had no children, Ms. St-Hilaire claimed the following benefits:
- Monthly allowance
- This allowance, under subsection 13(3) of the Superannuation Act, is payable to the “surviving spouse” and to the “children”. In this case, there are no children and it is not disputed that Ms. St-Hilaire is the “surviving spouse”.
- Minimum amount
- This amount, under subsection 27(2) of the Superannuation Act, is payable to the succession if there is no one to whom an allowance can be paid. The amount corresponds to five times the basic pension of the deceased.
- Supplementary benefit
- This benefit, under section 54 and subsection 55(2) of the Superannuation Act, is equivalent to twice the annual salary of the deceased. The benefit is payable to the succession.
Ms. St-Hilaire asked the Treasury Board to pay her the allowances provided by the Superannuation Act. The Treasury Board refused her request and invoked the common law public policy rule that no one may profit from his crime. Ms. St-Hilaire then turned to the Trial Division of the Federal Court for a declaratory judgment that would recognize her right to the benefits provided by the Superannuation Act. In addition, Ms. St-Hilaire argued that she was not unworthy to succeed within the meaning of the Civil Code of Québec.
The trial judge allowed Ms. St-Hilaire's application. He was of the opinion that the applicable law was the law of successions as defined in the Civil Code of Québec. Furthermore, Blais J. thought that Ms. St-Hilaire was not unworthy to succeed because she did not have the intention to commit the crime with which she was charged. In his opinion, the offence of manslaughter was not a cause of unworthiness by operation of law.
The Attorney General of Canada and the Treasury Board of Canada (“the appellant”) appealed from this judgment.
Two issues were addressed before the Federal Court of Appeal. First, the suppletive law applicable to the case had to be determined, and, then, whether Ms. St-Hilaire was entitled to the benefits of the Superannuation Act.
126.96.36.199. Analysis of complementarity
Concerning the applicable suppletive law, the appellant argued that the dispute was solely a matter of federal public law, an area for which the source of law is the common law. Accordingly, the public policy rule that no one may profit from his crime would apply to the crime of manslaughter and Ms. St-Hilaire would not be entitled to the benefits of the Superannuation Act, notwithstanding the civil law rules on unworthiness to inherit.
Mr. Justice Robert Décary first noted that the Superannuation Act did not contain any provision concerning the disqualification of a beneficiary for attempting to take the contributor's life. In order to properly identify the issue of complementarity, the judge stated six principles governing questions of private law and public law in Quebec:
- The Quebec Act, 1774
“sealed the fate of the two legal systems” in Quebec by providing in Article VIII that French civil law would govern anything affecting property and civil rights, while the common law would govern anything affecting the public law in Canada and in Quebec.
- Provincial public law in Quebec is composed on the one hand of the written law (the provincial statutes) and on the other hand of the common law that is public in character.
- Federal public law in Quebec is composed on the one hand of the written law (the federal public law statutes) and on the other hand of the public common law.
- Federal private law in Quebec is composed of the private law defined in a statute of the Parliament of Canada and the civil law if it is necessary to resort to an external source in order to apply a federal statute.
- The Parliament of Canada may derogate from the civil law when it legislates on a subject that falls within its jurisdiction.
- The Federal Court of Appeal is not bound to apply only federal law in cases before it.
Mr. Justice Décary then noted that the Constitution of Canada provides that a
“a federal law that resorts to an external source of private law will not necessarily apply uniformly throughout the country.” According to the judge, it is wrong to associate systematically all federal legislation with common law.
Mr. Justice Décary stated that, as a general rule, where a federal enactment is applied in a dispute from Quebec,
“the suppletive law is the civil law”. In view of the differences between the private law of the provinces, he concluded that
“asymmetry is the rule under the Constitution”. Furthermore, he noted that this principle is recognized in subsection 39(1) of the Federal Court Act, where it is provided that, except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions are governed by the law of the province in which the cause of action of the proceeding arose.
If Mr. Justice Décary wanted to make it clear that asymmetry was the general rule, he was nevertheless careful to take into account the decision in Construction Bérou in which the Federal Court of Appeal attempted to
“harmonize the effects of federal statutes throughout the country wherever this is possible in the private law.”
This explains Mr. Justice Décary's opinion that, where a federal enactment is silent concerning the applicable private law, a Quebec litigant
“is entitled to expect that his civil rights will be defined by the Quebec civil law, even if the adverse party is the federal government”.
188.8.131.52. Analysis of the suppletive law applicable to the dispute
Following his analysis of complementarity, Mr. Justice Décary addressed the issue of what law was applicable to the dispute. The appellant argued that the Superannuation Act is a federal public law that is based on the common law. The appellant also argued that the question of the relationship between the federal administration and its employees is a part of administrative law that is governed by the rules of public law and thus by the common law.
Mr. Justice Décary found two flaws in the appellant's argument. First, it was his opinion that the Superannuation Act is not a statute that is exclusively administrative in nature. Second, the common law rule argued by the appellant was not a rule of public law but a rule of private law.
With regard to the type of rule in question, Mr. Justice Décary recognized that it may be difficult on occasion to distinguish public common law from private common law. In this case, it is fairly clear that the rule invoked by the appellant is a private law rule. The source of the rule is not found in the public character of the federal government.
As for the characterization of the Superannuation Act, Mr. Justice Décary recognized that it has some of the characteristics of an administrative law and hence a public law enactment. But it also has some characteristics peculiar to a private law enactment. Citing a judgment of the Quebec Court of Appeal, he commented that an employee's superannuation plan is
“a factor in the employee's working conditions” and
“fits within the employee's labour relations”. According to Mr. Justice Décary, the specific rights at issue in this case were rights of a private nature.
Mr. Justice Décary went on to address the issue of the implied dependency of federal legislation in relation to the civil law. He referred, among other things, to various studies of the Department of Justice concerning the harmonization of federal statutes with civil law and concluded that it is not enough to establish that a statute is public or private in nature in order to determine whether it is necessary to resort to provincial private law:
What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. In some ways the circle is closed and we come back to the point of departure, in section VIII of The Quebec Act, 1774: when these affected persons are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. In short, the civil law applies in Quebec to any federal legislation that does not exclude it.
He later adds:
In my opinion, there is no avoiding the fact that a federal statute, albeit one characterized as public law, that refers to a private law concept such as succession without defining it, should be interpreted in Quebec in terms of the civil law.
The final element to be analysed in terms of complementarity was the issue of eligibility to receive the benefits prescribed by the Superannuation Act. The appellant claimed that the common law had to considered since the Superannuation Act was silent on the question of eligibility. But, in fact, according to Mr. Justice Décary, the issue of eligibility is one of civil rights, and the applicable rule is a rule of private law. He thus concluded that he was inclined to interpret Parliament's silence on the issue of the eligibility of the spouse
“as an acquiescence in the application of the principle of legal asymmetry that characterizes Canadian federal law.”
It is on the basis of this analysis that Mr. Justice Décary concluded, with the concurrence of his colleagues of the Federal Court of Appeal, that resort had to be had to the civil law of Quebec in order to determine whether Ms. St-Hilaire was entitled to the benefits provided by the Superannuation Act.
Although Mr. Justice Létourneau and Madam Justice Desjardins agreed with the analysis of Mr. Justice Décary on the question of complementarity, they nonetheless concluded that Ms. St-Hilaire was unworthy of inheriting. The majority did not agree with Mr. Justice Décary's restrictive analysis of this issue. In the opinion of those judges, Ms. St-Hilaire had made an attempt on the life of the deceased; she was unworthy of inheriting under the Civil Code and thus was not entitled to any of the benefits and allowances provided by the Superannuation Act.
The question on which Mr. Justice Décary, dissenting on this issue, focused was whether manslaughter constituted an attempt on the life of the deceased under article 620 C.C.Q. He chose to interpret this article to mean that only a person who voluntarily kills would be automatically disqualified. In cases where the deceased himself had provoked the crime that led to his death, committed by an heir in a fit of anger, unworthiness would not be automatic but would have to be shown. Therefore, it would be necessary to apply to the Court to declare the heir unworthy under article 623 C.C.Q. He concluded that the respondent, Ms. St-Hilaire, was not unworthy by operation of law and, accordingly, that she would be entitled to the supplementary death benefit, as heir to Mr. Morin's succession, and to the minimum amount payable under subsection 27(2) of the Superannuation Act. However, she would not be entitled to the benefits payable to the surviving spouse under subsection 13(3) of the Superannuation Act, because of the Civil Code's specific rules on insurance.
* This text is a revised and corrected version of the column first published in the Revue de planification fiscale et successorale, 2002, Vol. 23, No. 1. The authors wish to thank Mes Sandra Hassan, Benoit Mandeville and Joseph Sirois for their valuable comments and their collaboration on the revision of this column. However, the opinions expressed in this paper are the sole responsibility of the authors and are not necessarily those of the Department of Justice of Canada.
  4 F.C. 289 (C.A.) [“St-Hilaire”].
 R.S.C. 1985, c. P-36 [“Superannuation Act”].
 This is noted by Professors Brisson and Morel in “Droit fédéral et droit civil : complémentarité, dissociation” (1996) 75 Can. Bar Rev. 297 at 309.
 Ibid. at 309.
 R.S.C. 1985, c. 1 (5th Supp.) as am. [“I.T.A.”].
 The Queen v. Lagueux & Frères Inc.,  2 F.C. 97 at 103 (T.D.).
 Article 620 of the Civil Code of Québec, S.Q. 1991, c. 64 [“Civil Code” or “C.C.Q.”].
 Although Mr. Justice Décary was in the minority on the issue of unworthiness to inherit, his colleagues, Madam Justice Desjardins and Mr. Justice Létourneau concurred with him on the issue of the suppletive law.
 14 Geo. III, c. 83.
 St-Hilaire, supra note 1 at 312.
 Ibid. at 314.
 Ibid. at 315.
 Canada v. Construction Bérou Inc., 99 D.T.C. 5841 (F.C.A.)
 St-Hilaire, supra note 1 at 315.
 T.S.C.O. of Canada Ltd. C. Châteauneuf,  R.J.Q. 637 at 675.
 Ibid. at 320-321.
 Ibid. at 323.
 Ibid. at 324.
 Ibid. at 336.
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