Achieving Unity in the Interpretation of Federal Private Law:
Legal Framework and Fragments of Judicial Discourse

Then they said, "Come, let us build ourselves a city and
a tower with its top in the sky, and so make a name for ourselves;
otherwise we shall be scattered all over the earth." ...

Thus the LORD scattered them from there all
over the earth, and they stopped building the city.
The Bible, Genesis, 11.4, 11.8

... the Provinces of Canada, Nova Scotia, and New Brunswick
shall form and be One Dominion under the Name of Canada; ...

Canada shall be divided into Four Provinces, named Ontario,
Quebec, Nova Scotia, and New Brunswick.
The Constitution Act, 1867, s. 3, s. 5.

Introduction

The Biblical story of the Tower of Babel is most often cited in reference to the origin of languages and the confusion that arises out of their diversity. In fact, one respected author recalled that story to introduce his essay on legal bilingualism in Canada.[1] In our case, it came to mind in relation to the quest for fundamental unity in human societies. That quest, symbolized here by the image of the tower under construction, can be formally expressed in a political project ("let us build a city and a tower"). As in the story itself, it can also be based on the highest idea a group has of itself, of its destiny or of its aspirations ("with its top in the sky").

The project of Confederation that resulted in the Constitution Act, 1867[2] undoubtedly involved a quest for unity. The text of that foundational Act, which we put as an epigraph to this introduction, clearly expresses the intent of forming "One Dominion under the Name of Canada".[3] However, unlike the biblical account, of which the project of federation was certainly only a manifestation, that project was never derailed by a mixing of languages or even of races. Rather, the original forces of diversity became part of the very foundation of the Canadian union,[4] and thus appear to have been a prerequisite for it: as soon as Canada was established, it was "divided" into four provinces, each having, in addition to a distinct name[5] and the resulting powers, differences in respect of language, culture and religion. Ontologically, therefore, it is not possible, in our view, and as the Supreme Court of Canada has recognized, to imagine Canada otherwise than as a project for the reconciliation of unity and diversity. [6]

Jurisdiction over private law matters is certainly where we find the strongest evidence of this tension between unity and diversity. Private law, which covers enormous ground and has many ramifications, was identified primarily as a locus of diversity. Although private law is not essentially local in nature, it was assigned exclusively to the provincial legislatures. [7] On the other hand, whole segments of private law were placed under the jurisdiction of the Parliament of Canada.[8] It was therefore foreseeable, and entirely natural, we might say, that unifying pressure would be brought to bear on private law.[9] In contemplating the federal sphere, there are those who might say that private law, because of its complexity, does depict a Tower of Babel.[10] The diversity of private law is not the reason why we are prepared to consider it that way; rather, it is because this is an area where the legal profession, as crafters of the law, have much to do if the unity of a legal edifice whose outlines are so undefined is to be preserved.[11]

Given that, in principle, the provinces have jurisdiction in relation to "property and civil rights", the interpretation of private law in matters under federal jurisdiction very often takes provincial law into account. The general nature of provincial law in this area makes federal law somewhat permeable, and it has been said of federal law that it is not "an island unto itself".[12] This constant interaction, this "co-penetration" of the levels of jurisdiction and implied relationship of dependence established between federal legislation and the provinces' private law has resulted in the courts delineating the boundaries of federal private law on a case by case basis.[13] Provincial law has been said to provide ways of "filling the gaps" in federal law as it relates to private law.[14] However, it is arguable that the courts, as the official interpreters of federal legislation and arbiters of the division of powers, themselves play a role in making up for the lacunae in federal law, when they are not merely erecting dikes.[15] That argument holds that instead of using provincial law for suppletive purposes, judges preserve the unity of federal private law (its structural integrity, its impermeability, its completeness) by determining, for example, using their own methods, the meaning or autonomy of the rules they apply.

The relationship between federal legislation and provincial private law has been described in general terms by Andre Morel and Jean-Maurice Brisson as "complementarity" or "dissociation".[16] There are those who criticize the schematic nature of this theory, or the fact that it creates a dichotomy between federal legislation and provincial private law, or even makes one an exception to the other.[17] The analysis is, however, constitutionally sound, and it is a very useful one for describing the nature of federal private law.[18] The static aspect of the description is in fact merely an illusion. The studies we have consulted, starting with the one in which this theory was first advanced, indicate that there is ongoing tension between the application and non-application of provincial law in the federal context.[19] When considered in this way, the interaction between federal legislation and provincial law appears to occur in a dialectic relationship rather than mere binary opposition. The relationship would then be fundamentally a result of all of the historical and constitutional conditions, and all of the interpretations, that have determined and influenced the development of the federal law. When we consider that dynamic, it seems to us that the best way of understanding how unity and diversity are reconciled in the realm of private law in Canada, where the tension between the two poles brings them together, is to examine the reasoning that is applied in terms of complementarity or dissociation.

In addressing the relationship between federal law and provincial private law, we have therefore chosen to highlight the underlying role of the judicial interpreter. Given the hypothesis that the courts can intervene to bring about unity in the federal law, it also seems more fruitful, for the purposes of this study, to examine the dialectic out of which federal private law is created from the standpoint of dissociation. It is in these cases that exclusion of provincial law can be problematic, in that the private law of general application is, as a rule, a matter within the exclusive jurisdiction of the provinces. The judge is then required, or at least so we presume, to justify a decision not to necessarily consider applying provincial law. It may thus also be necessary for the judge to examine the nature of the relationship between federal law and provincial law.[20]

In a word, this study will deal with "judicial dissociation", as opposed to dissociation achieved by the express intent of Parliament. Part II will examine a set of relevant judgments in order to determine how the courts interrupt the interaction between federal law and provincial private law, and how they thereby achieve unification of federal private law. First, Part I examines the historical and constitutional context in which the courts operate and the methodological and jurisdictional circumstances in which interpretation takes place. To our knowledge, this kind of study, adopting a general perspective and juxtaposing the major dimensions of the interaction between federal law and provincial law on a logical continuum-the historical, constitutional, interpretational and empirical aspects of that relationship-where the judicial branch is made central to the analysis, has not been done to date.[21] We believe it is time to step outside these specializations and do a transverse examination of what we are calling judicial dissociation in dealing with federal private law. We hope that this analysis will assist in providing a comprehensive understanding of federal private law and a better idea of what, fundamentally speaking, it is.

On this point, we should identify from the outset the question that runs through this entire study. Is it possible to think about the unity of federal private law beyond the formal boundaries of legislation enacted by Parliament? In other words, is the unity of federal private law represented by federal legislation alone, or can it also include other sources of law?

To answer that question, we must examine the possibility that there is a "federal common law" in Canada. That hypothesis would in fact mean that federal private law is complete in itself, that it provides, at the level of federal law, a "reservoir" of norms or a "general" or "residual" body of law that can be drawn on to supplement legislation.[22] A number of avenues have been explored by various authors in this regard, including the possibility that this kind of common law could arise out of the abstract survival of pre-Confederation law- in origin the law received by the colonies-in the federal legal order.[23] In the same vein, there is a more intriguing avenue, based on the possibility that there is a federal common law whose origin lies in judge-made law, itself based on federal legislation. That is essentially the thesis adopted by an author who has been very critical of the complementarity-dissociation theory, Professor Ruth Sullivan, who had this to say about the possibility of unenacted law deriving from judicial interpretation: "The key issue raised by the harmonization project is whether judges can create unenacted law in the course of interpreting federal legislation."[24] Her answer is that they can, and she relies on that thesis, in particular, to defend an evolutionary approach to unity in federal private law, based on what she calls "derivative bijuralism", which she contrasts with "suppletive bijuralism" based on the complementarity theory.

In this study, we will examine the validity of that thesis in relation to the positive sources of the law. We will therefore address the question by considering the historical and constitutional foundations of private law in Canada. It does seem to us that the assertion of unenacted judge-made law in the federal legal order would necessarily have to take into consideration the formal aspects of private law in Canada, and more specifically the reception of the law, the division of powers and the power of judges to make law by interpreting legislation. Those formal aspects also mean that our analysis of the unity of federal private law will remain apart from the issue of bijuralism. Bijuralism, as the coexistence of the civil law and common law traditions, transcends the formal aspects-what we will call the structural aspects-of private law in Canada.[25] This phenomenon is one of convergence of legal traditions that occurs essentially in relation to the real sources of the law[26] and, at its extreme, is a matter of comparative law or cultural "background canvas".[27] Too often, in our view, these two levels of the analysis are confused, with the result that there is a failure to understand that bijuralism's only strength is derived from the legal framework on which it is based.

It is therefore important, to avoid any misunderstanding, to note that this is not a study of bijuralism. We will be considering the possibility that any federal common law exists solely from the narrow perspective of the formal sources of federal private law. This means that we will be considering primarily the rules governing the reception of law in Canada and the rules in the Constitution of Canada, which presume, for example, that there are not two systems of private law in Canada, but rather 10 or even 13, that being the number of provinces and territories in the federation, plus the actual federal system.

At this point we should note an important terminological issue. In this study, we use the expression "federal private law" to refer to any norm or area of private law that is related to federal law.[28] Accordingly, this generic expression must not be confused with, for example, the more specific expression "federal common law", the meaning of which is limited by the very concept of "common law", or the expression "federal private law legislation", which, strictly speaking, corresponds to the provisions contained in statutes enacted by the Parliament of Canada or in regulations made under those statutes.[29] In this study, therefore, federal private law is considered to include federal private law legislation, which is in fact its primary source, but also other sources of private law that are theoretically possible, to define what it covers. As we shall see, those sources might include judicial sources[30] or anything that would more generally form part of federal common law, if it existed. We believe that the law that is suppletive to federal legislation, found at the provincial legal level, may even be regarded as forming, by extension, part of federal private law.

The effort to achieve unity in federal private law may, as we point out, cast doubt on our very conception of private law in Canada. If it were to be the case that the judicial sources of federal private law could not, in formal terms, create an autonomous, closed system at the federal legal level, that unity could not be imagined without taking into consideration aspects of private law in Canada that involve diversity. As Chevrette and Marx wrote, we would have to admit that federal private law, and in particular its non-statutory component, [TRANSLATION]"is not a single body of law, but rather derives from the law of each of the provinces, depending on the nature of the case in question".[31] Perhaps, at bottom, there is greater unity in federal private law than is generally thought. It might be paradoxically and fundamentally plural, in which case federal law would no longer be in opposition to provincial law and would ultimately be conceived of as encompassing all the legal components of the Canadian federation. Federal law, when seen from that perspective, would still be a "body of law", but a body of law essentially based on its two foundational pillars: federal legislation, as interpreted, and provincial private law, applied as suppletive law. With that solid and secure foundation, it in fact cannot be ruled out that a genuinely common federal law, reflecting provincial differences, might emerge in a new form.[32]

In any event, in order to understand what federal private law is composed of, in theory and practice, we must first embark on a study of its fundamental aspects and of the interpretive practices followed by the courts in an effort to bring unity to it. This study will be divided into a number of sections, which we think of as following in logical succession.

Part I of this study will be devoted to the conditions out of which the absence of unity in federal private law arose: the historical and constitutional framework in which it exists. More specifically, in Section A, we will examine the suppletive role of provincial law in the absence of federal common law. In Section B, we will examine the principles governing the interpretation of federal private law legislation, from both a comprehensive and a complementary approach, and the principles governing the power of judges to unify federal private law in the practices followed in interpreting and creating the law. In Part II, we will examine, from an empirical perspective, the strategies adopted in judicial discourse to unify federal private law. Using a sample of decisions that have primarily been identified in studies analyzing instances of judicial dissociation, we will divide the decisions into groups: Section A deals with decisions that use procedures that determine uniformity in the conception of the legislation, that is, that primarily take a perspective in which the intrinsic and extrinsic natures of the norm are compared; Section B deals with decisions that use procedures that determine uniformity in the application of the legislation, that is, that focus primarily on the origin, intent or objectives of the norm.