Bijuralism in Canada: Harmonization and Terminology
Policy for applying the Civil Code of Quebec to federal government activities
The Civil Code of Lower Canada is to be replaced by the Civil Code of Quebec at the beginning of 1994. As the preamble to new Code indicates, it establishes the new jus commune for the province of Quebec. Given that federal government activities may be subject to provincial law and that there are areas in which there is a connection between the federal legal system and provincial law, the government must evaluate the impact of this reform on its activities as a whole.
The urgency of this issue is apparent from certain transitional provisions of the Act respecting the implementation of the reform of the Civil Code, which provide that the new Code applies to situations in which legal rights, whether contractual or other, are in issue, and to a lesser degree to proceedings which have already been instituted.
The federal government legislates in respect of Quebec and is a party to numerous situations in which legal rights are in issue, as well as to numerous proceedings in that province. The government must therefore take the transitional measures that are necessary in order to adapt to the new Civil Code. We must also ensure that we take into account the specificity of Quebec civil law within federal law.
Concern with how Quebec civil law is to be applied in the federal context is not new. In fact, at the time of the Glassco Report the importance of dealing with matters involving Quebec civil law was already being discussed.
The following is quoted from the report under the heading Drafting—Statutes, at page 384:
"It is essential that a French-speaking lawyer trained in the law of Quebec should be associated at an earlier stage than is now customary to ensure that the French version is juridically accurate and to point out any special implications that the bill may have for persons in Quebec under the Civil Code. […]"
"Departments and agencies which do not have legal officers trained in the Civil Law should take care to refer the particularly complex problems arising under the Civil Code to the Civil Law Section of the Department of Justice."
The observations made in this report still hold true in the 1990s. They have returned to the forefront because of the coming into force of the reformed Civil Code. As well, the constitutional discussions of recent years have opened the door to the expression of new trends in how we envisage relations between various levels of government.
Relations with Quebec have been marked by conflicts arising from overlaps between civil law and certain federal statutes, inter alia in respect of marriage, marine insurance and insolvency. Conflicts of this sort has always existed, but the manner in which we resolve such cases in the 1990s demonstrates an openness on the part of the federal government to more express accommodation of the peculiarities of the provincial legal systems.
We would note the precedent created in Great Britain by the enactment of separate provisions for Scotland in some Acts of Parliament.
Legal experts agree that the existence of the civil law in Canada finds its roots in the Quebec Act, 1774. However, unlike institutional bilingualism, there is almost no other legal foundation for the duality of the Canadian legal system. And yet Canada is recognized on the international scene as a living laboratory for the coexistence of two systems of law.
Statutes and regulations
Parliament legislates in respect of both public and private law. A priori, it is not concerned with making a distinction between common law and civil law rules. The points at which there is a connection between federal legislation and provincial law are not always clear. In some cases, the question will be brought, directly or indirectly, before the courts to be resolved.
The reform of the Civil Code has a dual effect. The need to adapt federal statutes and regulations to the new Code makes us aware of the work that is yet to be done if they are to reflect the duality of the Canadian legal system. Disputes with Quebec remind us that the mission set out in the Glassco Report should be brought to the forefront of our efforts.
It is important not to confuse the dual legal system with bilingualism. Too often in the past we have allowed ourselves to suggest in some policy documents, sometimes clearly and sometimes less so, that the French version of federal statutes and regulations should reflect civil law concepts and the English version common law concepts. This idea is unacceptable, particularly since common law in French has become an instrument that is used in legal activity throughout the country.
The enactment of legislative measures and constitutional amendments in respect of the equal status of the two official languages has promoted the development of new instruments.
In response to a report of the Commissioner of Official Languages concerning the process of establishing the French version of statutes and regulations, the Department created the Garon Committee, in 1977, and the Desjardins Committee, in 1978, to examine the question and respond to the Commissioner's recommendations.
A parade of administrative measures followed the report of each of these committees, inter alia the creation of the position of francophone Chief Legislative Counsel responsible for the quality of the French version of legislation. No concrete action has been taken in respect of the examination and drafting of regulations.
At the same time, the legal bibliography has been enriched by reference works designed to meet the expanded needs in respect of drafting and interpreting laws in the context of the dual legal system and bilingualism.
Among other innovations, we have developed and published vocabularies and lexicons for common law in French.
We have entered the 1990s armed with new instruments which will enable us to insert precise civil law and common law concepts where they are needed in each official language version of federal legislative texts. New Brunswick is officially bilingual, and several other jurisdictions legislate in French. The result is that we can no longer allow ourselves to be vague or ambiguous in federal texts, in terms of the concepts used in civil and common law respectively.
We may reach the goal of wording that is appropriate to each legal system through a variety of approaches. For purposes of illustration, three typical cases where there is a connection between the common law and civil law systems can be identified.
In the first, which it is sufficient to use a general concept, a neutral expression may render the legal concept unequivocally in both systems. For example: a "security".
In the second, where a specific concept is being used, the legal concept must be rendered by using the terminology that is specific to each system. For example: "fee simple or ownership".
In the third, where it is necessary to adapt an entire situation in which legal rights are in issue to a particular system, reference must be made to specific concepts—most often in Quebec civil law—by having what are called asymmetric provisions, or provisions of restricted application to that system. An example of asymmetric provisions is found in former sections 86 et seq. of the Bankruptcy Act where reference were made to certain rules of Quebec civil law.
We now have the instruments we need to render common law concepts in French, using terminology that is recognized throughout the country.
Federal legislative texts sometimes stipulate, in respect of certain provisions, that the law applicable in a province will apply to all matters on which the provision is silent. This is the case for, inter alia, the Crown Liability and Proceedings Act. However, most often, these texts contain no provision in this respect—and this can be a source of problems.
In an article published in 1982, the Honourable Louis-Philippe Pigeon made the following comments, at page 181:
[Translation] "Federal legislation must, of course, be drafted in accordance with the basic principle that the fundamental law is the common law, which is the foundation on which it is built (R. v. National Trust Co.  S.C.R. 670). Only in a case where civil law is involved should an attempt be made to determine how to take civil law into account, with a view to application of the text in Quebec …"
This comment prompts us to mention one of the difficulties that may arise when we insert a civil law concept in a federal legislative text with a view to its application in Quebec: if it is not stipulated that the rules by which the provision is to be interpreted are the jus commune rules set out in the Civil Code, the courts are free to select rules that are contrary to the spirit of the civil law. We are well aware of the assimilating effect of such ambiguous situations in cases where the court of last resort is asked to rule on issues involving the Quebec civil law.
Accordingly, it is imperative that the texts in question, or perhaps another law of general application, specify the rules by which they are to be interpreted, in order to avoid any uncertainty as to the scope of provisions which have specific application in Quebec civil law.
Situations in which legal rights are in issue
In Quebec alone the government is involved in a great number of varying types of contracts and proceedings. We should first identify the types of situations and proceedings which are modified by the new Code and, second, make the necessary adjustments.
We have already done an initial identification of the points at which there is a connection between the Civil Code and federal government activity. They are as follows.
Contracts of adhesion, operating of business, co-operation agreements, superficies ownership, leases of immoveables, suretyship, contract of enterprise, contractual clauses that are contrary to the mandatory provisions of the new Civil Code, contracts for legal services, hypothecs on immoveables and deeds of sale.
In the area of taxation, the amendments affect the valuation of capital gains and the definitions of residence and charities. In the area of Crown liability, the concept of civil delict should be examined attentively.
In proceedings that have already been instituted, evidence and procedure will be governed by the new Code. In a case where the judgment confers rights, it will be governed by the new Code. We would note the new provisions in respect of legal hypothecs, extinctive prescription and arbitration clauses.
We would also note, in respect of the publication of rights: real security on moveables, transfers of authority over immoveables and expropriation procedure.
The consequences of the coming into force of the new Code is one element of policy in the administration of justice, an area which falls under the authority of the Department of Justice.
It is the responsibility of the Department to develop a departmental policy to carry out the application of the reform of the Civil Code and to establish a permanent legal service specializing in providing support for the Department as a whole.
A draft management plan has been submitted earlier this year to departmental sector heads. It contains detailed information on the proposed activities of the Civil Code Section for the next few years.
The role of the Civil Code Section is seen as analogous to that of the Human Rights Section in terms of research and consultation.
In addition to the activity of counsel in the Civil Code Section, research would be carried out by establishing a documentation centre and computerized data bank.
The documentation centre would be open to all practitioners in the Department as a source of specialized bibliographic references. Its work would supplement that of the library and care would be taken not to duplicate the library's work.
Coming in the footsteps of the GASPARD project, the computerized data bank would also be a source of specialized information available on line. It would provide legal opinions, explanatory notes, legal texts, case law, relevant portions of federal statutes, pleadings and argument, model contracts, registration forms, and so on.
With respect to the consultation role, counsel in the Civil Code Section would ensure that they could provide the necessary support in the context of departmental practice both in situations where legal rights are in issue and proceedings are pending and in respect of developing policy and drafting legislation and regulations.
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