Program of Research Contracts
on Canadian Bijuralism

• Introduction
• Background
• Terms and conditions of the program
• Research topics
• How to apply

Introduction

The purpose of the Department of Justice Canada's Program of Research Contracts on Canadian Bijuralism is to promote, among law students, the development of expertise pertaining to federal legislative interpretation regarding questions that arise when federal law and provincial private law interact in a context of coexisting civil law and common law legal traditions, taking into account, where applicable, their relationship with Aboriginal traditions. The Program also contributes to the dissemination of knowledge on the subject.

The Program is open to students who, at the time of application, are enrolled full-time in graduate studies and who hold an undergraduate law degree from a Canadian university. It is also open to undergraduate law students who are, at the time of application, enrolled full-time in an undergraduate program in law at a Canadian university.

Each research contract is for $5,000.

Students wishing to submit a research proposal must do so on or before December 1, 2009.

Background

In 1990, the Quebec National Assembly enacted the Civil Code of Quebec, which came into force in 1994. Accordingly, the Department of Justice Canada adopted the Policy for Applying the Civil Code of Quebec to Federal Government Activities in 1993. The purpose of the Policy was to ensure that federal law would take into account the changes introduced by the new Civil Code, the specificity of Quebec's civil law as well as of its institutions and concepts. Subsequently, the Department of Justice approved in 1995 the Policy on Legislative Bijuralism, which was intended to provide Canadians with federal legislative texts which would respect, in both official languages, the common law and civil law. Finally, under the Cabinet Directive on Law-Making, it became a requirement for federal laws and regulations to respect both the common law and civil law, in both official languages.

To further these policies, a legislative revision process with respect to bijuralism has been established. First, omnibus bills and regulations are put forward. To date, two bills have been adopted and have come into force: the Federal Law-Civil Law Harmonization Act, No. 1 (S.C. 2001, c. 4, which came into force on June 1, 2001) and the Federal Law-Civil Law Harmonization Act, No. 2 (S.C. 2004, c. 25, which came into force on December 15, 2004). One of the key features included in the first statute is the introduction of bijural interpretation rules at sections 8.1 and 8.2 of the Interpretation Act (R.S.C. 1985, c. I-21). These rules provide a legislative recognition of the coexistence of the common law and civil law legal traditions in Canada and confirm their equal authority and role as sources of the law of property and civil rights in Canada. Secondly, government-initiated bills and regulations, whether general in nature or relating to tax issues, are subjected to a thorough bijural revision. For more information on the Department of Justice’s work on bijuralism in Canada, please consult the Canadian Legislative Bijuralism Website www.bijurilex.gc.ca.

Terms and conditions of the program

Eligibility criteria

Candidates must, at the time of application:

• be enrolled full-time in graduate studies and hold an undergraduate law degree from a Canadian university; or
• be enrolled full-time in an undergraduate program in law at a Canadian university.

Value of research contracts

Each research contract awarded by the Department of Justice Canada is for $5,000 to conduct research and to produce a final version of an original research report.

The number of contracts awarded will be determined by the Department of Justice Canada, depending on the quality of the applications received and available financial resources. The Department reserves the right not to award any research contracts on Canadian bijuralism.

Selection

All applications for a research contract on Canadian bijuralism are reviewed by a selection committee. The selection of candidates is based on the submitted documents, taking into consideration the following criteria:

• the quality and relevance of the research proposal for the Department of Justice Canada, particularly the contribution of the research to the development of knowledge on Canadian bijuralism;
• the quality of the presentation, particularly the quality of language, structure of ideas, and clarity of objectives;
• the merit of the candidate, based on academic records for the undergraduate law program, and graduate law program (where applicable), research experience, the candidate's publications, scholarships, prizes and awards, and references.

Obligations of the contracting parties

Successful candidates undertake to

• submit - and modify, to the satisfaction of the Department of Justice Canada - a research proposal, a detailed outline of the research, and a preliminary research report, and take into consideration the Department's comments in order to produce, to the Department's satisfaction and according to the contractual timetable, an original research report, the final version consisting of at least 50 pages, double-spaced;
• provide a summary of the research report of approximately two pages; and
• provide electronic copies of all documents in Microsoft Word format.

The Department of Justice Canada agrees to

• finalize contractual offers within a reasonable time once the successful candidates have been notified of the selection committee's decision;
• provide the necessary support and supervision for the successful completion of the research project; and
• make payments according to the terms of the contract.

Copyright

According to the terms and conditions of contracts entered into by the Department of Justice Canada, intellectual-property rights are vested in the contracting party (the successful candidate), subject to a non-exclusive licence granted to the Department to use, copy, translate and publish the research report in any form or medium.

Research Topics  

The coexistence of the civil law and the common law may have an impact in the application of federal legislation when it refers to concepts relating to property and civil rights. Each research project carried out under the program must contribute to a better understanding of the existing relationship between federal law and the laws of the various provinces. The project must analyze the relationship between the federal and provincial private law to identify any issues that relate to the interpretation of federal legislation in that given context, while taking into account both the content of the issue treated and the terminology.

Students wishing to submit a research proposal may choose from the following topics that have been identified by the Department of Justice Canada as being of particular interest:

1. Describe the legal nature of a "security entitlement" (titre intermédié or droit intermédié) in the Security Transfer Acts of the provinces. From a comparative perspective, is there any distinction to be made depending on the province of application, and what prerogatives arise out of it? In the context of federal legislation, how should this security entitlement be taken into account and, if applicable, how should the differences regarding the regulation of this security entitlement in provincial law be taken into account? In the context of federal legislation, is it possible to standardize the rules on this issue while still complying with the rules set out in provincial laws governing security entitlement?

2. Consider the nature of the hydrocarbon interests or rights (oil and gas) and whether these interests or rights are in line with the general property law in a province or whether they are ruled by a specific regime. What differences can be identified between such interests or rights and mining rights or claims? Is it necessary to consider specific adjustments when those interests are taken into account in the federal legislative context?

3. Federal legislation often refers to the concept of "security" or "security interest" (garantie). In light of the decision in Caisse populaire Desjardins de l’Est de Drummond v. Canada, 2009 S.C.J. 29 on the definition of this concept in the Income Tax Act, does it have a precise or limited meaning in other legislative contexts or does the meaning vary according to context? What criteria can be used to determine its meaning? What impact can this search for meaning have on drafting legislation?

4. Inherent in bijuralism is that the federal law is enriched by the application of provincial law, but this interaction also means that courts are frequently called upon to interpret provincial private law (common law and civil law) in constructing federal statutes. This in turn gives rise to a body of "federal jurisprudence" interpreting provincial legislation. Consider whether and to what extent this "federal jurisprudence" is invoked by provincial courts as precedents or guides for the interpretation of provincial law.

5. Consider the recent tax cases Aujla v. Canada [2008] F.C.J. 1476 and Cadorette v. Canada, [2008] T.C.J. 316, which deal with director’s liability in the context of dissolved corporations that are subsequently revived. Compare the provisions of provincial corporate legislation and the Canada Business Corporations Act and consider how differences might affect the federal Crown, and what measures the Crown should take in various provinces to protect its interest.

6. The Income Tax Act provides mechanisms for the recovery of debts due to Her Majesty. These debts may also be recovered through mechanisms set out in provincial private law. How does the provincial private law, when applicable, change the application of the mechanisms for the recovery of debts? Would the situation be any different if the mechanisms set out in the Income Tax Act were contingent upon the rules that apply in the Quebec civil law or contingent upon the rules of common law that apply in the other provinces?

A candidate may also submit a research proposal on a topic of his or her choice that promotes the development of expertise on Canadian bijuralism. It should however be noted that a number of topics have already been the subject of research contracts. These topics cannot be chosen under the Program of Research Contracts on Canadian Bijuralism unless a new aspect can be developed. Students wishing to submit a research proposal are invited to contact us to determine whether a topic has already been the subject of a research project.

The Department of Justice reserves the right to modify any proposal, to specify the terms of the research project, and to offer a research contract on this basis.

How to apply

Candidates who wish to apply for a research contract must complete the attached Application Form (PDF version, 31 kb - PDF Help) - Program of Research Contracts on Canadian Bijuralism, 2009-2010. The application form must be submitted along with the following documents:

• a résumé;
• written confirmation of registration at university;
• an official transcript of academic records for the undergraduate studies in law and, graduate studies (where applicable);
• two letters of reference using the attached form;
• a detailed research proposal including the objective of the research (maximum of two pages, double-spaced), accompanied by a preliminary bibliography and a summary of about 12 lines.

The Application Form and the required documents must be sent on or before December 1, 2009 to:

Letters of reference must be sent directly by the persons providing the references to the same address no later than December 15, 2009.

For further information, contact Ralph Mercedat at 613-954-3615 or by e-mail at pcrbc-prccb@justice.gc.ca.