Policy for applying the Civil Code of Quebec to federal government activities
(Adopted by the Law and Policy Committee on June 7, 1993)
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.
In 1980 Cabinet made a decision on this subject, to recognize the policy of the Department of Justice in respect of establishing the French version of statutes and to invite the other departments to participate.
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 its 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:
"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. [ 1933] 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 examines 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.
Budgetary, Financial and Human Resources
Treasury Board has already granted the Minister of Justice the resources that are needed to achieve the objective stated above.
The Civil Code Section (Civil Law and Legislative Services Sector) launched its activities officially on April 1, 1993.
Before that date, an intra-departmental advisory committee served as the vehicle for the discussions that led to the establishment of the Civil Code application program. A draft management plan was submitted to sector heads in the Department for consultation purposes.
One or more coordinators for each sector of the Department were identified, and they will act as liaison with the Civil Code Section.
Applications of the Civil Code reform to the federal government is a program that will likely improve relations with Quebec.
Earlier, we mentioned conflicts that have arisen in respect of points where there is a connection between Quebec civil law and federal legislation. Since April 1, there has been a meeting between senior officials at the federal and Quebec provincial levels in respect of these cases and work on a solution to the problems involved has already begun.
A very considerable effort must be made to inform the other government departments and agencies about the substance and implications of this reform.
One of the techniques considered is the conducting of sample studies with several departments in order to identify typical legal situations in which a specific intervention may be required as a consequence of the coming into force of the new Code. Three departments have been identified in the management plan for this purpose: Fisheries and Oceans, Industry, Science and Technology and Public Works.
The impact of this policy on relations with other government departments and agencies is also discussed under the headings Communications and Public Affairs and Relationship to the Mission and Values.
We should communicate with the central agencies to propose that a Cabinet policy be developed on this matter, for distribution throughout the government.
Communications and public affairs
The spreading of the information in the government is an important element of this policy. It seems appropriate to start with the hypothesis that most persons and bodies concerned are not aware of the implications of the reform at all.
The contents of two following paragraphs describe measured that are to be taken in addition to the supply of information and advice on the subject in the course of the provision of legal services by our Department.
Within the Department, we propose to use the existing communication facilities, including Inter pares and the luncheons at which legal services chiefs meet, as well as a letter to be sent to every civil law practitioner and a meeting with trial counsel.
Outside the Department, our proposals include sending a letter to Deputy Ministers, briefing Deputy Ministers via the Justice Senior Advisory Committee and the Committee of Deputy Ministers on Justice and Legal Affairs, as well as ultimately distributing the proposed Cabinet policy.
Relationship to the mission and values
It is the responsibility of the Department, in the context of the provision of legal services to federal departments and agencies, as well as in the performance of its role as counsel to the Crown and in the development of policy in respect of the administration of justice, to inform its clients as to the impact that the reform of the Civil Code will have on their activities, and to provide them with the support they will require in making the transition.
In order to accomplish its mission, the Department is required, inter alia, to give staff members who will be affected the necessary training in the new legal rules which comprise the Civil Code. Armed with the necessary information, the Department’s staff will be better prepared to provide effective services to the government and to clients.
Relationship to Justice in the 1990s and Public Service 2000
The reform of the Civil Code, like the Justice in the 1990s program, is a sweeping change which is taking place in the legal system in one part of Canada.
This reform is an effort by the government to ensure that the law stays in step with rapid changes taking place in social values. It is entirely conceivable that while this reform applies in Quebec it may be useful to consider as we examine the justice system in the country as a whole. As an example, the new Civil Code seeks a better balance between the rights of the creditor and those of the debtor.
In order for the Department to carry out its duties in a forward-looking manner, it should prepare actively for this change. This requirement fits well with the increasingly active role which it is called upon to play in developing government policy.
In accordance with the spirit of modernization exhibited by Public Service 2000, it is wise for the Department to take on the work of adjusting the law to present-day values. Complying with the wishes of the provinces to ensure that their law is respected in federal law is consistent with the trend observed in the evolution of federalism, which has demonstrated the desire of governments at all levels to participate in the management of all aspects of Canadian life, inter alia through fully exercising their legislative powers.
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 establising 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.
This policy could take the form of, inter alia, a departmental directive stating:
- the content of the departmental policy on the application of Quebec civil law to the federal government;
- the mandate of the Civil Code Section to advise the Department as a whole in a uniform manner as to situations in which legal rights are in issue and proceedings under Quebec civil law, inter alia in respect of contracts, registration of rights, legislative activities, civil liability and drafting directives and policies relating to government activities.
- the mandate of the departmental legal services to review any situation in which legal rights are in issue or proceeding under Quebec civil law which concerns them, in consultation with the client department or agency and the Civil Code Section;
- the need to include Quebec civil law in the curriculum of the Department’s continuing education program;
- the fact that courses on the new Code given by the Barreau du Québec to all members of the Barreau employed by the Department are compulsory.
Preparation of a recommendation of the Minister of Justice for adoption by Cabinet of a policy for applying the Civil Code reform within the federal government.
This initiative is inspired from the 1980 Cabinet decision referred to earlier, which related to drafting of the French version of statutes.
This policy would indicate a clear position on applying Quebec civil law in federal legislative texts and to situations in which the government’s legal rights are in issue and proceedings in which it is involved. It would have the advantage of facilitating the co-operation of other department to the application of the reform.
This policy might read as follows:
is pleased to note the program established by the Civil Code Section of the Department of Justice to harmonize federal government activities with the provisions of the Civil Code of Quebec, which constitute new law, in order to carry out the work of integrating the rules of Quebec civil law in federal legislative texts and legal instruments, to the extent possible, and to ensure that the federal government takes the necessary steps in respect of situations in which its legal rights are in issue and proceedings to which it is a party to comply with the new Civil Code;
urges departments and other federal agencies to co-operate with the Civil Code Section of the Department of Justice in implementing this program, inter alia by designating a person to be responsible for co-ordinating the activity of his or her department or agency in this matter and to provide liaison with that Section;
invites the Department of Justice to establish an information program relating to the manner in which the reformed Civil Code will apply within the federal government and in which the rules of Quebec civil law will be integrated into all federal activities.
This decision would extend an invitation to all federal departments and agencies to review legislative texts, situations in which their legal rights are in issue and proceedings for which they have responsibility, in consultation with the Department of Justice.
In the course of the preparation of the recommendation of Minister of Justice, it may become necessary to consult a central body such as the Legislation and House Planning Secretariat of the Privy Council Office to seek its advice on the co-ordination and preparation of the legislative amendments and on the advisability of mentioning the legislative portion of the program in the proposed Cabinet decision.
We might include in the proposed decision a schedule for implementing the necessary measures. First, we should provide for concrete transitional measures to be taken by January 1, 1994. Second, we should do a projection concerning the entire operation of developing the application of the Civil Code at the federal level. This exercise, of situating the activity in time, would further highlight the permanent nature of the work of the Civil Code Section
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