Third series of proposals to harmonize federal law with the civil law of the Province of Quebec

Introductory Note - Consultation

Department of Justice of Canada

February 2008

The Legislative Revision Services Group of the Legislative Services Branch^[1], on behalf of the Department of Justice of Canada, is seeking comments from Canadians regarding the Third 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.

In this third series of harmonization proposals, prepared in co-operation with the departments responsible for the selected acts and with the support of a number of experts from outside government, the acts to which amendments are proposed are the Canada Business Corporations Act^[2] and the Expropriation Act^[3]. The comments received will be considered in preparing an eventual third omnibus harmonization bill.

This introductory note will provide you with the context in which these proposals were developed.

Canadian bijuralism and the harmonization initiative

Two legal systems coexist in Canada, each having their own unique terminology, civil law in the province of Quebec and common law in the other provinces and territories. This means that federal legislation, acts and regulations, must speak to four audiences when its provisions deal with private law matters: 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 of the United Kingdom in 1774, and 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.^[4]

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 initiative to harmonize federal legislation with the civil law of the province of Quebec [the "harmonization initiative"] was established by the Department of Justice of 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 initiative'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 respect for the common law in French.

As a result of the harmonization initiative, Canadians are able to refer to federal acts and regulations, which will display a greater respect for their legal traditions in both official languages. Indeed, 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, are able to read federal acts and regulations that display terminology, concepts and institutions more respectful of their respective legal traditions and languages. The implementation of the harmonization initiative helps in this way to ensure better access to justice.

A series of harmonization acts

The first harmonization act, the Federal Law-Civil Law Harmonization Act, No. 1, S.C., 2001, c. 4 ["Harmonization Act No. 1"], came into force on June 1, 2001. Among the amendments made by this act, two rules of construction were added to the Interpretation Act^[5], specifically sections 8.1 and 8.2, which provide as follows:

The Supreme Court of Canada referred to sections 8.1. and 8.2 of the Interpretation Act in Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461, in Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), [2006] 1 S.C.R. 865 and in A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42.

The Federal Court of Appeal and the Federal Court made use of sections 8.1. and 8.2 of the Interpretation Act in the following cases:

• St-Hilaire v. Canada (A.G.), [2001] 4 F.C. 289.
• Wolf v. Canada, [2002] 4 F.C. 396.
• Canada (A.G.) v. National Bank of Canada, 2004 FCA 92.
• 9041-6868 Quebec Inc. v. Canada (M.N.R.), 2005 FCA 334.
• Quebec (Commission de la Construction) v. Canada (M.N.R.), 2006 FCA 49.
• Dupuis v. Canada (Revenue Agency), 2006 FC 228.
• Royal Winnipeg Ballet v. Canada (M.N.R.), [2007] 1 F.C.R. 35
• Travel Just v. Canada (C.R.A.), 2006 FCA 343.
• Bédard v. Kellogg Canada Inc., [2007] F.C. 516.

The second harmonization act, the Federal Law-Civil Law Harmonization Act, No. 2, S.C., 2004, c. 25 ["Harmonization Act No. 2"], came into force on Royal Assent on December 15, 2004.

The first two harmonization acts are the result of both internal work at the Department of Justice of 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.

Other harmonization acts will follow until all the provisions of federal legislation that refer to private law have been harmonized.

As well, the Legislative Revision Services Group of the Legislative Services Branch ensures that all new acts and regulations, including tax legislation, are analyzed and that recommendations are made concerning bijuralism.

Bijural records and useful references

Following the enactment and coming into force of each harmonization act and other amendment acts — tax law or others — making harmonization changes, Bijural terminology records are published by the Department of Justice of Canada on its website (http://www.canada.justice.gc.ca/eng/csj-sjc/harmonization/terminolog/) to explain the bijuralism problems identified and solutions arrived at.^[6]

A group of lawyers of the Department of Justice of Canada has created the website Bijurilex (http://www.bijurilex.gc.ca/). The purpose of this website is to provide information about the implications and challenges of bijuralism in the federal legislation of Canada. It is a source for documents produced or published in the context of harmonization of federal legislation, and other resources on legislative bijuralism in general. This site is also intended as a place to share and promote knowledge in this field.

Your comments

Please submit your comments on the Third 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 to the Department of Justice of Canada no later than April 30, 2008, to the attention of:

Luc Gagné, Senior Counsel
Legislative Bijuralism Team (Revision Initiatives)
Legislative Revision Services Group
Legislative Services Branch
Department of Justice of Canada
275 Sparks Street
St Andrew's Tower, Room 7015
Ottawa, Ontario
K1A 0H8
Fax: 613-952-4080
E-mail: consultation.harmonisation.2008@justice.gc.ca

Footnotes

• ^[1] In addition to focusing on the acts that are already in force, the Legislative Revision Services Group of the Legislative Services Branch, which is responsible for harmonization and bijural drafting in the Department of Justice of Canada, also ensures that all new acts and regulations are analyzed and that recommendations are made concerning bijuralism.

• ^[2] R.S., c. C-44.

• ^[3] R.S., c. E-21.

• ^[4] See the detailed analysis of the basis of this suppletive relationship by the Honourable Justice Décary of the Federal Court of Appeal in St-Hilaire v. Canada (Attorney General), [2001] 4 F.C. 289 (C.A.). See also Morel, A., Brisson, J.-M., Federal Law and Civil Law: Complementarity, Dissociation, in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijurilism — Collection of studies, Department of Justice of Canada, 1997, at pp. 215 to 264.

• ^[5] R.S., c. I-21.

• ^[6] Note that in a unanimous judgment in Schreiber v.Canada (Attorney General), [2002] 3 S.C.R. 269, the Supreme Court of Canada made use of these bijural terminology records in interpreting legislation that had been amended as a result of the Harmonization Act, No. 1 (see the Honourable Justice Lebel for the Court at paragraphs 72 to 79).