4. Questions and Answers
Questions and Answers
Bill S-11, A fourth Act to harmonize federal law with the civil law 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
Harmonization and Bijuralism
- Q 1 What is harmonization?
- Q 2 What are the foundations of harmonization?
- Q 3 What is the purpose of harmonization?
- Q 4 How does federal legislation interact with provincial private law?
- Q 5 What is the commitment of the Government of Canada concerning bijuralism?
- Q 6 Why does the federal government have to harmonize its legislation with the private law of the provinces, including the civil law of Quebec?
- Q 7 Is harmonized federal legislation more complicated and difficult to understand?
- Q 8 Are there any guides that would allow the reader to determine when common law or civil law concepts apply in federal legislation?
Harmonization Initiative
- Q 9 Who harmonizes federal legislation?
- Q 10 Will all federal legislation be harmonized?
- Q 11 Has any harmonization work already been done?
- Q 12 Why is harmonization carried out through omnibus legislation?
- Q 13 How does the harmonization initiative pertain to federalism and federal-provincial-territorial relations?
- Q 14 To date, how many statutes, regulations and other statutory texts have been examined as part of the harmonization initiative and how many of these texts have been harmonized?
- Q 15 The harmonization initiative was launched in 1998. Why is this initiative not yet completed?
- Q16 In addition to the current Bill, what are the Department of Justice’s plans for similar future legislation?
Bill S-11 – Fourth Harmonization Bill
- Q 17 Who was consulted as part of the preparation for the fourth harmonization bill?
- Q 18 The public consultations go back to 2017. Are those consultations still relevant for the harmonization amendments included in Bill S-11?
- Q 19 What is the economic impact of the fourth harmonization bill?
Indigenous Matters
- Q 20 Why doesn’t the Bill S-11 address Indigenous customs, traditions, rules and legal orders of Indigenous peoples?
- Q 21 What is the Government of Canada doing on the matter of Indigenous customs, traditions, rules and legal orders of Indigenous peoples if these are not addressed by Bill S-11?
- Q 22 Were Indigenous communities consulted in the course of preparing the fourth harmonization bill?
- Q 23 The fourth harmonization bill takes into account terminology and legal concepts in both official languages. What about the terminology and concepts in Indigenous languages?
Harmonization and Bijuralism
Q 1 What is harmonization?
- Harmonization is the revision of federal legislation to ensure that it takes into account provincial and territorial private law and appropriately reflects the terminology and concepts of Quebec civil law and the common law in both official languages.
- Private law means all legal rules governing relationships among individuals. It covers areas of law such as civil liability, property, security, and contract.
- Harmonization is not intended to change the intention of Parliament in federal legislation.
Q 2 What are the foundations of harmonization?
- Harmonization has its basis in Canadian bijuralism. Canadian bijuralism is one of the manifestations of Canadian pluralism and the expression of the coexistence of the civil law and common law in Canada.
- Subsection 92(13) of the Constitution Act, 1867 gives rise to this co-existence, by giving the provinces a broad residuary power over property and civil rights. Federal legislation grants this power over property and civil rights to the territories.
- In Quebec, this power is exercised in a civil law setting whereas in the rest of the country, it is used within the common law environment.
Q 3 What is the purpose of harmonization?
- Harmonization is intended to ensure that federal legislation takes into account the terminology and concepts related to matters concerning property and civil rights, in both official languages. It aims to ensure the proper application of federal legislation in a province or territory.
- In this way, harmonization aims to ensure a more efficient application of federal legislation by making Parliament’s intention clearer and by avoiding issues in the interpretation of federal legislation, particularly in a civil law context.
- Harmonization contributes to access to justice. Federal legislation must address Canadian citizens in language that is respectful of the civil law and the common law, in both English and French.
Q 4 How does federal legislation interact with provincial private law?
- When a federal legislative text refers to rules, principles or concepts related to matters of private law, in principle, it does so taking into account provincial and territorial private law, which, concerning property and civil rights, forms a conceptual framework for the application of federal law.
- For example, a federal legislative provision that uses just the common law term “agent” in English may be applicable in all provinces and territories. However, the term “agent” has no specific legal meaning in Quebec, even if it is used in every day speech. The provision should, therefore, in English, also refer to the civil law term “mandatary”, the term that designates a person who acts under a mandate. In French, mandataire is the appropriate term for both the civil law and the common law.
Q 5 What is the commitment of the Government of Canada concerning bijuralism?
- In 1993, the Policy for Applying the Civil Code of Quebec to Federal Government Activities was adopted in anticipation of the coming into force of the new Civil Code of Quebec on January 1, 1994. This policy aims to ensure that the amendments to the Civil Code and the specificity of Quebec civil law are taken into account in federal law.
- In 1995, the Policy on Legislative Bijuralism was adopted to ensure that the four targeted audiences (civil law Francophones, common law Francophones, civil law Anglophones and common law Anglophones) could, on the one hand, read federal legislative texts in the official language of their choice and, on the other hand, find in them terminology that is respectful of the concepts specific to the legal system (civil law or common law) in force in their province or territory.
- The Cabinet Directive on Law-Making adopted in1999 established the principle that legislative bijuralism, in both language versions, is the mandatory standard for the drafting of bills and regulations.
Q 6 Why does the federal government have to harmonize its legislation with the private law of the provinces, including the civil law of Quebec?
- It is important that federal legislation reflects Canadian common law and civil law as federal laws, in principle, apply throughout the country. Federal legislation that correctly addresses the four targeted legal audiences (civil law Francophones, common law Francophones, civil law Anglophones and common law Anglophones) increases access to justice.
- Harmonization also ensures a more efficient application of federal legislation. It can contribute to a reduction of legal risks and to the proper administration of justice by reducing the number of judicial proceedings concerned with difficulties of legislative interpretation.
Q 7 Is harmonized federal legislation more complicated and difficult to understand?
- No. Harmonization allows Canadians to better understand federal statutes. It allows them to have access, in the official language of their choice, to federal legislation that contains private law terminology and concepts proper to the law of their province or territory.
- For example, adding the terms “biens personnels” to the existing civil law terms “biens meubles” in the French version enables Francophones in common law provinces to better understand federal legislation in light of concepts they know.
Q 8 Are there any guides that would allow the reader to determine when common law or civil law concepts apply in federal legislation?
- Yes. Sections 8.1 and 8.2 of the Interpretation Act, added by Federal Law-Civil Law Harmonization Act, No. 1, provide rules of bijural interpretation. The rules guide the reader in the application of provincial and territorial private law concepts and rules in the context of federal legislation. They help the reader of federal legislation understand the interaction of common law and civil law concepts and rules with federal legislation.
- The Department of Justice’s website makes accessible to the public general information, as well as studies and publications that explain the basis of bijuralism and harmonization.
Harmonization Initiative
Q 9 Who harmonizes federal legislation?
- The Legislative Services Branch of the Department of Justice is reviewing all existing federal legislation and conducting the necessary research, drafting and other work for its harmonization. The Branch works in close collaboration with the departments responsible for the application of statutes and regulations affected by the proposed harmonization amendments.
Q 10 Will all federal legislation be harmonized?
- No. It is not necessary to harmonize legislation that does not apply in Quebec or that does not refer to provincial or territorial principles, rules, or concepts that form part of the law of property and civil rights.
Q 11 Has any harmonization work already been done?
- Yes. To date, three other omnibus harmonization bills have been adopted by Parliament, in 2001, 2004 and 2011. As well, here are some examples of other amending Acts and regulations that contain harmonization amendments to federal law:
- Income Tax Amendments Act, 2000;
- Rules Amending the Bankruptcy and Insolvency General Rules.
Q 12 Why is harmonization carried out through omnibus legislation?
- Omnibus harmonization Acts are the best way of implementing bijuralism in the whole of the legislative corpus. They ensure the internal coherence of the statute book having regard to private law concepts, something the usual process of amendments does not allow for.
- The harmonization of a federal statute over a period of years, through a series of partial amendments, would risk creating inconsistencies in terminology and concepts within that statute. For example, the Financial Administration Act, which is included in the current harmonization proposals, cannot be fully harmonized through regular amendments such as those that might be included in budget implementation Acts.
- Furthermore, omnibus harmonization bills ensure consistency and coherence with other laws that govern a particular subject matter, such as laws governing financial institutions, and allows for parallel amendments to other laws dealing with related matter. For example, in light of amendments made to financial institutions statutes, parallel amendments are proposed to the Canada Business Corporations Act and other corporate statutes to ensure consistency of the statute book.
Q 13 How does the harmonization initiative pertain to federalism and federal-provincial-territorial relations?
- The harmonization initiative underlines a collaborative approach towards the provinces and territories, which respects their jurisdiction over matters relating to property and civil rights.
- This is of particular interest in Quebec’s civil law environment, as was recognized by Parliament in the preamble to the first harmonization Act adopted in 2001 which states that: “the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society.”
Q 14 To date, how many statutes, regulations and other statutory texts have been examined as part of the harmonization initiative and how many of these texts have been harmonized?
Statutes:
- From 1998 to September 2022, 696 federal Acts were analysed. It was determined that 583 statutes require no harmonization.
- 69 of the 696 statutes have been harmonized (64 by the first three omnibus harmonization Acts, 1 Act adopted for the sole purpose of harmonizing a single statute and 4 Acts which partially harmonized tax statutes).
- Adoption of the fourth harmonization bill would bring the total of harmonized statutes to 113.
- Following the adoption of the fourth harmonization bill, and based on work already underway, up to 168 additional statutes may require harmonization in the future.
Regulations and Other Statutory Instruments:
- Since 1998, 3,624 regulations and statutory instruments have been analyzed. Of those, it was determined that 3,615 regulations require no harmonization.
- 9 regulations and statutory instruments have been harmonized.
- 407 additional regulations and statutory instruments may require harmonization in the future.
Q 15 The harmonization initiative was launched in 1998. Why is this initiative not yet completed?
- The harmonization initiative is an innovative project. It is an initiative without precedent. Achieving innovative solutions respectful of the two legal traditions, requires extensive research and consultation with various departments and legal experts. Moreover, it requires the building of a capacity to understand and work with both legal systems.
- The number of laws and regulations needing examination for harmonization purposes was underestimated from the start. The original estimate of 600 statutes was surpassed due to the expansion of the legislative corpus since 1998. As such, the effort required to complete the work of harmonization was more significant than anticipated.
- Client departments must often be briefed on the complexities of the other legal system, while also explaining that the legislative intention remains unchanged. Furthermore, the time required for consultation and adoption of the harmonized legislation has been longer than anticipated. The Government has numerous priorities and the harmonization initiative has not always been among those priorities, and has perhaps delayed the presentation of harmonization bills.
Q 16 In December 2010, in his appearance before the Standing Senate Committee on Legal and Constitutional Affairs, at the consideration stage of the third harmonization bill, the then Minister of Justice, the Honourable Rob Nicholson, stated that “[t]his by no means will be the last harmonization bill that you will see.” In addition to the current Bill, what are the Department of Justice’s plans for similar future legislation?
- Based on our analysis of the legislative corpus, 168 statutes may require harmonization in the future, following the enactment of the fourth harmonization bill. The harmonization of the remaining statutes will require additional harmonization legislation.
- Preparatory work for the next harmonization bill is underway. The determination of whether it is necessary to proceed with such a bill can only be made once the fourth harmonization bill is adopted. Any decision would depend on the number of statutes to be amended and on an analysis of the legislative corpus as it stands at that time.
Bill S-11 – Fourth Harmonization Bill
Q 17 Who was consulted as part of the preparation for the fourth harmonization bill?
- The proposed harmonization amendments for the targeted statutes were developed in collaboration with the responsible departments.
- Targeted consultations also took place with financial institutions.
- Subsequently, the Department of Justice held public consultations from February 1st to May 1st, 2017.
- Comments were sought on the proposals affecting fifty-one statutes through a consultation document.
- This document was published on the internet and was sent to more than 400 stakeholders and members of the legal community including provincial and territorial Justice ministers, Canadian associations of provincial and superior court judges, the Canadian Judicial Council, provincial and territorial law societies, le Barreau du Québec and la Chambre des notaires du Québec, the Canadian Bar Association, associations of French language jurists outside Quebec, law professors and experts in civil law and comparative law, interested law practitioners and financial institution sector stakeholders.
Q 18 The public consultations go back to 2017. Are those consultations still relevant for the harmonization amendments included in Bill S-11?
- Yes. Since the public consultation, the harmonization proposals included in the fourth harmonization bill have remained up-to-date, in so far as during this period no amendment to these proposals were made necessary by the evolution of the statute book.
- The consultation showed that the harmonization initiative continues to be favourably received by the legal community stakeholders, and confirmed the support of stakeholders for the proposed amendments set out in the consultation document.
Q 19 What is the economic impact of the fourth harmonization bill?
- It is not anticipated that the implementation of the fourth harmonization bill will have any quantifiable economic impact. However, this bill will ensure better application of federal legislation, in particular in regards to financial institutions.
- For example, maintaining consistency in the definitions in the laws concerning financial institutions and enhancing consistency by way of correlative amendments to definitions of the same terms in corporate statutes under the responsibility of the Department of Innovation, Science and Economic Development Canada will help reduce potential interpretation problems where those laws interact with provincial and territorial private law.
Indigenous Matters
Q 20 Why doesn’t the Bill address Indigenous customs, traditions, rules and legal orders of Indigenous peoples?
- The Canadian legal system is a mixed legal system, defined particularly by its legal pluralism. This pluralism reflects the diversity of sources of law and of legal systems that co-exist and interact with each other. These include Indigenous customs, traditions, rules and legal orders whether First Nations, Inuit or Métis. Bijuralism which underlies the harmonization initiative is one of the manifestations of this legal pluralism.
- The harmonization initiative aims to take into account the civil law and the common law in the federal context having regard to the division of powers set out in the Constitution Act, 1867. It aims to respect the residual power of provinces and territories in matters of private law. Customs, traditions, rules and legal orders of Indigenous peoples have a constitutional basis that is different from that of bijuralism.
- The harmonization initiative does not undermine the importance of Indigenous customs, traditions, rules and legal orders of Indigenous peoples in the Canadian legal system and their revitalization.
- The initiative’s objective is not to change the legislative policy of the statutes being amended. As such, the Bill does not result in any change to the rights of Canadian citizens, including those in Indigenous communities.
- Customs, traditions, rules and legal orders of Indigenous peoples are beyond the scope of the harmonization initiative as set out in the Policy on Legislative Bijuralism and the Cabinet Directive on Law-Making, which are directed at taking into account the civil law and the common law in federal legislation.
Q 21 What is the Government of Canada doing on the matter of Indigenous customs, traditions, rules and legal orders of Indigenous peoples if these are not addressed by Bill S-11?
- Indigenous peoples in Canada have unique legal traditions that are distinct from the traditions of the common law and civil law and that must be preserved and recognized.
- The Government of Canada has committed to the revitalization and the strengthening of the customs, traditions, rules and legal orders of Indigenous peoples in the context of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).
- This commitment is demonstrated notably by recognizing the role indigenous legal institutions can play, in partnership with Indigenous communities, in the development and implementation of customs, traditions, rules and legal orders of Indigenous peoples appropriate to each community and by the Government of Canada’s financial support for indigenous led initiatives supporting that development.
- In adopting the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) in 2021, the Government has committed to taking all measures necessary to ensure that federal legislation is consistent with the UN Declaration.
- The Government of Canada remains committed to upholding the rights of Indigenous peoples.
Q 22 Were Indigenous communities consulted in the course of preparing the fourth harmonization bill?
- The development of the harmonization proposals now included in Bill S-11 and the public consultations took place in 2017 or before.
- The potential intersections between the harmonization bill and the rights and principles contained in the UN Declaration have been evaluated.
- The Bill, which proposes only technical or terminological changes, does not aim to alter the legislative policy underlying the provisions. It does not change the rights of Canadian citizens, which includes the rights of Indigenous peoples.
- Indigenous peoples have the opportunity to express their interests and views on this Bill throughout the parliamentary process.
Q 23 The fourth harmonization bill takes into account terminology and legal concepts in both official languages. What about the terminology and concepts in Indigenous languages?
- Indigenous languages are fundamental to the identity and culture of Indigenous peoples, their spirituality and their self-determination. The Government of Canada has committed to fully implementing the Indigenous Languages Act since it received Royal Assent in 2019. This law aims to support Indigenous peoples in their efforts to reclaim, revitalize, maintain and strengthen Indigenous languages.
- Bill S-11 has an incidental contribution to the respect of official languages.
- The strengthening and revitalization of Indigenous languages are the object of measures distinct from those addressed in the present Bill. The Government has committed to implementing the UN Declaration, which sets out rights with respect to Indigenous languages. The Indigenous Languages Act, which led to the creation of an Office of the Commissioner of Indigenous Languages, demonstrates that commitment.
- Other measures have also been proposed by the Government. The inclusion of an express reference to Indigenous languages at section 83 of the Official Languages Act in the context of the recent reform of that Act and the proposal currently being studied concerning the inclusion of official languages on ballots for federal elections are other measures which seek to strengthen and revitalize Indigenous languages.
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