Frequently Asked Questions (FAQ)

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Legal Dualism and Bilingual Bisystemism

Principles and Applications

With these few answers to the most frequently-asked questions concerning bilingual bisystemism and legal dualism, the authors of the Legal Dictionary of Property in Canada (LDPC) hope to clarify certain basic concepts relating both to the bisystemic and bilingual lexicographical design of the work, and to the dualist foundation of the legal theory on which it is based.

Q. 1 What is legal dualism and bilingual bisystemism?

Legal dualism is the explicative theory built on the coexistence of two legal systems of private law within the Canadian legal framework; bilingual bisystemism relates to the unique coexistence of the civil law and common law legal systems within Canada, and the simultaneous or concomitant presence of two official languages.

The coexistence of private law systems supposes the specific and simultaneous existence of each respective system. Thus legal dualism, as a method, does not seek comparative similarities. Instead, it aims to analyze the differences likely to preserve the specificity of each system, with the integral concomitance of the systems serving as a guiding principle for the analysis, notably at the time of judicial interpretation.

Q. 2 What is the distinction between legal dualism and legislative bijuralism?

The distinction is made on the basis of the communication contexts observed and according to their relationship in terms of the division of powers between the federal and provincial levels of government within the Canadian legal framework, i.e.:

• the corpus of judicial texts in the case of legal dualism, and
• the corpus of legislative texts in the case of legislative bijuralism.

Legal dualism: the judicial text

Contrary to the communication context used by legislative bijuralism, legal dualism is embodied in the resolution process of the interpretive dilemma of private law, the representation of which can be observed in the corpus of judicial decisions. The "interpretive dilemma", also called the "principle of complementarity-dissociation", means that any interpretation of federal law requires a determination be made as to whether it is necessary to refer to the private law of the province where the dispute arises, in order to complement it.

In practice, it is a judicial interpretation issue. In other words, the interpretation made by judges and referring to a legislative statement is a process that, over time, will likely give rise to new judicial interpretations of the initial decision interpreting this legislative statement.

• Legal dualism provides a method of interpretation that allows both legal systems to be taken into account when interpreting legislative and judicial texts in federal law.
• The method also takes into account the systems' relationship with both levels of government in terms of the division of legislative powers in private law.

The Supreme Court of Canada decision Québec (Attorney General) v. Canada (Human Resources and Social Development), [2011] 3 S.C.R. 635, offers an example of the unique role played by judicial interpretation: (1) in the identification and resolution of an interpretive dilemma of private law; and (2) in the relationship that exists between the division of legislative powers in private law matters and the resolution of this dilemma. In the case at hand, the Court was to determine whether the provincial regime of exemption from seizure should complement the debt recovery mechanism provided for in paragraph 126(4) of the Employment Insurance Act, (S.C. 1996, c. 23) pursuant to the division of legislative powers (the determination of seizability of property pertains to provincial legislative powers in private law), and by application of the interpretive principle of section 8.1 of the federal Interpretation Act (R.S.C. (1985) c. I-21) in favour of the complementarity of federal law with the private law of the province where the dispute arises. On the basis of federal paramountcy, the Court stated that the integrity of the federal legislative regime regarding debt recovery had to be preserved and could not be complemented by the provincial regime of exemption from seizure, due to conflicting objectives between the federal and provincial regimes.

For more information on the interpretive dilemma, please refer to the new LDPC supplement entitled: Interpretive Dilemma of Private Law in Federal Law within Judicial Texts and Legal Dualism. This fifth LDPC supplement provides a structured access to 199 judicial decisions illustrating this phenomenon.

Legislative bijuralism: the federal legislative text

Contrary to legal dualism, legislative bijuralism is an effort to harmonize federal legislative texts — in a jurisdictional perspective — that fosters the complementarity of federal law with provincial private law, particularly Quebec civil law.

• Legislative bijuralism extends the legislative co-drafting process, a bilingual drafting process that precedes jurisdictional harmonization, wherein the harmonization effort would not modify the substance of the federal legislator's intent.^{Footnote 1}
• Legislative bijuralism is embodied in the formal statement that expresses the legislator's intent. Judicial interpretation has to take place, for instance, before the resolution process of an interpretive dilemma of private law could reintroduce this statement in a dynamic drafting process, i.e. the recursive process between the legislative and judicial bodies. Such a dynamic, unlike the approach used in legislative drafting, creates a pertinent observation and analysis site for legal dualism.

The distinction we would like to make here aims to clarify the relationship between linguistic law and the linguistics of law (as "droit"), where the latter discipline is, at times, opposed to legal linguistics and, otherwise, jurilinguistics which is more oriented towards legal translation in Canada.

Q. 3 What is the difference between legal dualism and official bilingualism?

The use of private law concepts in the federal legislative context plays an important role in the resolution process of the interpretive dilemma of private law. Consequently, when it comes to judicial interpretation, it is first and foremost the definition of the legal concept of private law that must prevail, and not official languages as a vehicle for bilingual communication.

Paragraph 27 of the previously cited decision Québec (Attorney General) deserves particular attention:

[27] To identify Parliament's purpose in enacting s. 126(4) EIA, the Attorney General of Quebec suggests that this provision must be considered from the perspective that federal legislation generally favours the application of provincial legislation. Relying on s. 8.1 of the Interpretation Act, he argues that Parliament has consented to the application of the provincial rules respecting exemption from seizure, since it has not expressed an intention to exclude the application of provincial law for the purposes of s. 126(4) EIA. According to this argument, Parliament's purpose in authorizing the Commission to issue a requirement to pay cannot be to deprive claimants of the protection existing under the provincial provisions. The argument based on s. 8.1 of the Interpretation Act cannot succeed. Section 8.1 states that if in interpreting a federal provision it is necessary to refer to private law concepts, reference must be made to the law of the province in which the provision is to be applied: see P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 373. Here, the federal statute provides for a recovery mechanism, the requirement to pay. That mechanism does not require the application of private law concepts that make it necessary to refer to provincial law. [Our emphasis]

This situation emphasizes the very important role that the LDPC and its supplements can play in the interpretative process of a federal law and in the drafting thereof.

The LDPC and the Official Languages Act

Linguistic and legal tools are needed to assist both judicial interpretation and legislative drafting. The LDPC was designed for such specialized purposes. Its goal is, among other things, to determine whether the applied vocabulary belongs to the proper lexicalization register of the concept, i.e. the adequate choice of a simple or compound form of a word, or simply to the general and unspecialized language of law.

Official languages law is normative when it comes to bilingualism obligations, and the terms of application differ between the legislative and the judicial realms. Apart from the federal statutory courts including the Supreme court of Canada, there is no bilingual drafting obligation regarding interpretive judicial texts that interpret federal law (see Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) s. 19 and 20). It is important to remember that provincial superior courts have jurisdiction to interpret and apply a large number of federal legislative texts referring to concepts and institutions of private law (e.g. the Bankruptcy and Insolvency Act, R.S.C. (1985), c. B-3).

The LDPC also emphasizes the necessary distinction between: (1) the multidisciplinary knowledge that calls upon law and linguistics; and (2) the issue of official languages, i.e. the knowledge of official languages law which includes the positive and sociological obligation to promote the development of official language minority communities (see Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) s. 41).

The LDPC and the Interpretation Act

It is also important to note that there is a perception issue concerning the development of tools such as the LDPC and its supplements. These tools must be able to meet legal imperatives inherent to legal dualism issues, and therefore distinct from those specific to official languages. Sections 8.1 and 8.2 of the Interpretation Act provide a good illustration of this, where priority is given to the bisystemic aspect, rather than the linguistic aspect, of the relationships with the provinces, especially with Quebec due to its civil law system and the federal process of harmonizing statutory laws with the 1994 Civil Code.

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.

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.

In the case of section 8.2, it becomes obvious that "terminology" is meant to designate the institutions that belong to the legal system applicable in a province.

In fact, the legal interpretive principles encompassed in sections 8.1 and 8.2 of the Interpretation Act are an addition to the linguistic interpretive principles arising from the official bilingualism of federal legislative texts.^{Footnote 2}

Q. 4 What is the relationship between legal dualism and Canadian constitutional law?

As seen in the above-cited decision Québec (Attorney General), the division of powers is at the very core of legal dualism. In the absence of an exclusive head of power under s. 91 of the Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, the ability of the Parliament to establish rules in private law matters (regarding debt recovery, for instance) relies primarily on its ability to overflow^{Footnote 3} onto provincial powers in matters of "Property and Civil Rights" (92 (13) S.C. 1867), and generally on "Matters of a merely local or private Nature" (92 (16) S.C. 1867), given the appropriate constitutional doctrines and in light of the relevant facts in each case.

However, Parliament's ability or inability to set rules of private law has a direct impact on the interpretive dilemma of private law:

1. if Parliament is authorized to legislate in private law matters (regardless of the doctrine used as justification), the choice can be made between complementarity and dissociation, depending on the federal legislator's intent;
2. if Parliament is not authorized to legislate, provincial law will have to apply; therefore complementarity is necessary.

In both cases, the bisystemic nature of provincial private law (civil law and common law) will potentially have a role to play in the interpretation of federal law: (1) either because of the choice made by the federal legislator (in favour of complementarity); (2) or because of the constitutional division of legislative powers (where complementarity is necessary due to provincial jurisdiction).

The online supplement compiles many decisions and abundantly illustrates that it is not unusual that the constitutional validity of a federal statute – that includes a private law regime – is addressed, even before resolving the interpretive dilemma in favour or against dissociation.