INTRODUCTORY NOTE - Public Consultations

Second series of proposals to harmonize federal law of the Province of Quebec

Today you will have an opportunity to examine documents concerning the public consultations on the second series of proposed legislative amendments to harmonize federal legislation with the civil law of the Province of Quebec. These consultations are being held as part of the Program to Harmonize Federal Legislation with the Civil Law of the Province of Quebec[1] of the Department of Justice Canada.

The Department of Justice Canada would like the views of Canadians concerning the proposed changes to certain federal statutes, found in the second attachment entitled Second series of proposals to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, with a view to their inclusion in a second harmonization bill. This introduction will provide you with the context in which these proposals were developed.

Canadian bijuralism and the Harmonization Program

The coexistence in Canada of two legal systems which have their own unique terminology, civil law in the province of Quebec and common law in the other provinces and territories, means that federal legislation, acts and regulations, must speak to four audiences: common law anglophones, civil law anglophones, common law francophones, and civil law francophones.

This coexistence can be traced back to the Quebec Act, which was passed by the Parliament in London in 1774, and which restored to the colony those French laws, with the exception of criminal laws, that had existed prior to the British conquest and that were accordingly of civilian origin. The division of legislative powers provided for in the Constitution Act, 1867 maintained the coexistence of the two legal traditions since the power to legislate with respect to property and civil rights was conferred on the provinces under subsection 92(13). Consequently, the provinces have the power to legislate with respect to most private law, subject to specific areas of jurisdiction belonging to Parliament, such as bankruptcy and intellectual property.

The bijural status of Canada and its legislation, coupled with the fact that federal legislation, taken as a whole, does not constitute an autonomous legal system, means that when Parliament is silent on the meaning to be given to a private law expression to which reference is made, it is necessary to refer to the applicable provincial private law for interpretation. This is known as the principle of complementarity. Furthermore, a standard or rule of provincial private law will supplement a federal statute that is silent on a question relating to property and civil rights. The provincial private law is then applied in a suppletive manner to the federal statute. For example, when reference is made in a federal statute to the concept of lease without any further qualification, it is the private law of the province that will provide, on a suppletive basis, a definition of this concept. Similarly, a federal statute that does not provide specific rules with respect to successions will be interpreted, on a suppletive basis, according to the rules of provincial private law.[2]

However, federal law may derogate from private law and establish its own rules and the federal rule may then become a more or less autonomous one. This is called a relationship of dissociation.

The Harmonization Program was established by the Department of Justice Canada in the wake of the coming into force of the Civil Code of Québec on January 1, 1994, a new codification that changed the concepts, institutions and terminology of Quebec civil law. The Harmonization Program’s primary objective is to review all federal acts and regulations the application of which requires the use of provincial private law and, where necessary, adjust their contents to ensure that they are consistent with the concepts, institutions and terminology of Quebec civil law. Also, particular care is taken to ensure the respect of the common law in French.

As a result of the harmonization work done by the Department of Justice Canada, all Canadians, those living in Quebec, who are subject to the civil law, and those living in the other provinces and territories, who are subject to the common law, will be able to refer to federal acts and regulations that touch on private law which display a greater respect for their legal traditions in both official languages. The implementation of the Harmonization Program helps in this way to ensure better access to justice.

A series of harmonization acts

The Federal Law-Civil Law Harmonization Act, No. 1,[3] which came into force on June 1, 2001, as chapter 4 of the Statutes of Canada 2001, is an important first step in the implementation of the Harmonization Program. It is the first act of its kind and it serves and will serve as a model for the other acts that will follow until all the provisions of federal legislation that refer to private law have been harmonized.

Besides the first series of harmonization amendments, the Harmonization Act, No. 1 also contains additions to the Interpretation Act[4] that recognize the principle of complementarity between provincial private law and federal law.

New sections 8.1 and 8.2 of the Interpretation Act provide as follows:

Section 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.

Section 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.

Consequently, any question of complementarity or suppletive law and of course, the harmonization proposals themselves, must be considered in light of these provisions.

The Harmonization Act, No. 1 is the result of both internal work at the Department of Justice Canada that was carried out in close co-operation with the departments responsible for the application of the acts in question, and the contributions of a number of stakeholders, including the Barreau du Québec, the Chambre des Notaires du Québec, the Canadian Bar Association, the Ministère de la Justice du Québec and many professors and experts in civil law and comparative law. The second series of harmonization proposals has also been prepared in co-operation with the departments responsible for the acts affected and with the support of a number of professors and experts from outside government. We hope that the public consultations on which we are embarking will again benefit from the insight and expertise of all who contributed in the past to the Harmonization Act, No. 1.

With a few exceptions, this second series of harmonization proposals is designed to complete the harmonization of all the acts that were partially harmonized by the Harmonization Act, No. 1. Some of you will recall that only a few fields of private law were taken into account at that time. The second series of proposals covers the remaining fields of private law.

In addition to focusing on the acts that are already in force, the Bijuralism and Drafting Support Services Group,[5] which is responsible for harmonization and bijural drafting in the Department of Justice Canada, also ensures that all new acts and regulations are analyzed and that recommendations are made concerning bijuralism. The same is now true of tax statutes, for which harmonization amendments have recently been passed by Parliament.[6]

Bijural records and useful references

Following the enactment and coming into force of the Harmonization Act, No. 1, bijural terminology records were published on the web site of the Department of Justice Canada.[7] Given the innovative nature of legislative bijuralism, these records are helpful in explaining the harmonization provisions arising from the Harmonization Act, No. 1. Some of the harmonization amendments to tax statutes also appear there. Other records will be added to the site as new harmonization provisions are enacted.

These records provide a better understanding of the changes made to federal statutes. They are also useful in the current consultations because, out of concern for consistency, some of the solutions they describe are repeated in the second series of proposals.

Note that in a recent unanimous judgment,[8] the Supreme Court of Canada used these bijural terminology records to interpret legislation that had been amended as a result of the Harmonization Act, No. 1.

We have included in the first attachment new explanatory records that correspond to some of the proposals made during the current public consultations.

Moreover, over the last five years, the Department of Justice Canada has published works on Canadian bijuralism and the harmonization of federal acts in order to ensure that our harmonization work is better known and understood.

In 1997, the first collection of studies was published: The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Collection of Studies. This collection consists of studies by university professors and experts in civil and comparative law.

In 2001, a second collection was published: The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication. It deals with, among other things, the history of various aspects of the Harmonization Program and bijuralism.[9]

In September 2002, a third collection, dealing with harmonization questions relating to tax law, The Harmonization of Federal Legislation with the Quebec Civil Law and Canadian Bijuralism, Collection of Studies in Tax Law, was published in collaboration with the Fiscal and Financial Planning Association.

Other publications will be added as the work carried out under the Harmonization Program progresses and this will ensure ongoing dissemination of knowledge related to bijuralism and harmonization in Canada.

A special issue of the Revue juridique Thémis, scheduled for February 2003, will be devoted to the harmonization of the Bankruptcy and Insolvency Act. As part of the current public consultations, this special initiative explains in greater detail the amendments proposed for this Act.

Your comments

Please submit your comments to the Department of Justice Canada no later than April 30, 2003, to the attention of Alain Vauclair, General Counsel, as indicated below. Comments received by that date will be examined and will be the subject of a report to be sent to those who submitted them and to any other group, association or person who so requests. We reserve the right to reproduce, in whole or in part, the comments we receive.

Alain Vauclair, General Counsel
Bijuralism and Drafting Support Services Group
Legislative Services Branch
Department of Justice of Canada
275 Sparks Street
St Andrew’s Tower, 7th Floor
Ottawa, Ontario
K1A 0H8
 
Fax: (613) 954-1209
E-mail: consultations@justice.gc.ca

Footnotes

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