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

Notes


  • [1] Roderick A. Macdonald, "Legal Bilingualism" (1997), 42 McGill L.J. 119. The Bible passage is taken from the version published on the Vatican Internet site (https://www.vatican.va): The American Bible, United States Conference of Catholic Bishops.
  • [2] 30 & 31 Vict., U.K., c. 3 (reproduced in R.S.C. 1985, App. II, No. 5). We will in most cases quote the official English version. One need only read a few of the speeches given by George-Etienne Cartier at the time to understand that the project of Confederation was not motivated solely by commercial interests. Against the backdrop of the American Civil War, it was also important to protect the British Crown. See this excerpt from the speech given by Cartier in the Legislative Assembly on February 7, 1865: [TRANSLATION] "We who have had the advantage of seeing republicanism in operation for some 80 years, of seeing its defects and its flaws, realized that purely democratic institutions are simply unable to guarantee the peace and prosperity of nations, and that we had to unite in a federation designed to perpetuate the aspect that is the monarchy." (Joseph Tasse, Discours de Sir Georges Cartier Baronnet accompagnés de notices, Montreal, Eusebe Senecal & Fils Imprimeurs-Éditeurs, 1893 (digital collection of Bibliothèque et Archives nationales du Québec: http://www.banq.qc.ca). Evidently, monarchism as a unifying principle was substituted for the sovereignty of the people and its corollary, human rights. On this point, see: Peter H. RUSSELL, Constitutional Odyssey - Can Canadians Become a Sovereign People?, 2nd ed., Toronto, University of Toronto Press, 1993, p. 4.
  • [3] We have read that the expression "Dominion" was preferred to "Kingdom" in view of the risk that the latter would upset the Americans. Again, the biblical reference is evident here. Samuel Leonard Tilley is said to have proposed "Dominion" as an alternative, referring to a line in the 72nd Psalm in the Bible: "He shall have dominion also from sea to sea, and from the river unto the ends of the earth." See "The London Conference" in Canadian Confederation, Library and Archives Canada (http://collectionscanada.ca).
  • [4] See, for example, the following excerpt from the speech given by George-Etienne Cartier, supra, footnote 2, p. 416: [TRANSLATION] "It was argued that it would be impossible to make confederation work because of the diversity of races and religions. Those who share that opinion are mistaken. It is precisely because of diversity of races and local interests that the federal system must be established and will function well." See also, in the same speech, the passage quoted by the Supreme Court of Canada in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 43, where Cartier bemoans the fact that unity of races is "utopian".
  • [5] Anecdotally, we would note the debates that took place in the House of Commons in November 2006 regarding recognition of the fact that "the Quebecois form a nation". On this point, it seems to us bizarre, to say the least, that the Bloc Quebecois did not, from a sovereignist perspective, use the expression "Quebec" in the motion that it presented and that was ultimately debated. We also find it particularly significant that the resolution adopted by the House included the phrase "within a united Canada". See: House of Commons, Journals, 1st Session, 39th Parliament, November 23, 2006, and November 27, 2006 (https://parl.gc.ca).
  • [6] Reference re Secession of Quebec, supra, footnote 4. See, at para. 43: "Federalism was the political mechanism by which diversity could be reconciled with unity." Federalism was seen by the Supreme Court as one of the fundamental constitutional principles of Canada. Note that unity and diversity have been analyzed using the five concepts of federalism said to prevail in Canada: Edwin R. Black, Divided Loyalties - Canadian concepts of federalism, Montreal / London, McGill / Queen's University Press, 1975. More recently, see Brouillet, "The Federal Principle and the 2005 Balance of Powers in Canada", (2006) 34 S.C.L.R. (2d) 307.
  • [7] Constitution Act, 1867, subs. 92(13).
  • [8] id., s. 91. We will return to the question of the division of powers in more detail in Part I.
  • [9] The principle of diversity and the search for unity can be seen, for example, in s. 94 of the Constitution Act, 1867. That Section provides that Parliament may make provision for the uniformity of private law in the provinces other than Quebec. Regarding the tension between efficiency and diversity in interpreting the division of powers, see Jean Leclair, "The Supreme Court of Canada's Understanding of Federalism: Efficiency at the Expense of Diversity", (2003) Queen's L.J. 411.
  • [10] They see this in, for example, the Department of Justice Canada's "Policy on Legislative Bijuralism" (1995), which refers simultaneously to the "four Canadian legal audiences" for federal legislation: "Francophone civil law lawyers, Francophone common law lawyers, Anglophone civil law lawyers and Anglophone common law lawyers". The Policy was published in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 4, Appendix III.
  • [11] Their task is particularly onerous, as we have said, because they are operating in a federal system. The search for unity is not unknown to unitary systems, however. It has been said of the Cour de Cassation, as [TRANSLATION] "guardian of the unity of the law": "The diversity of interpreters and of their training and experience, the multiplicity of the relevant rules and principles, the complexity of the colours that infinitely changing facts bring to this allegedly imperturbable law-they all work to expand its circumference, which is nowhere, out from its centre, which is everywhere." (Christian Atias, "L'image doctrinale de la Cour de cassation", Recueil Dalloz Sirey de doctrine de jurisprudence et de citation, 1993, Chronique XXIX, p. 133).
  • [12] Henry L. Molot, "Clause 8 of Bill S-4: Amending the Interpretation Act", in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 6, p. 1.
  • [13] This implied dependence was highlighted in a wonderfully learned article by Jean-Maurice Brisson and Andre Morel, "Federal Law and Civil Law: Complementarity, Dissociation" (1996), 75 R. du B. can. 297, p. 309 [in English: The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Collection of Studies, Ottawa, Department of Justice Canada, 1999, p. 217]. The "co-penetration" of the two bodies of law was noted by Jean Leclair, "L'interface entre le droit commun privé provincial et les compétences fédérales 'attractives'", in Ysolde Gendreau (ed.), A Copyright Cocktail, ALAI Canada / Éditions Thémis, 2007 (note that for the purposes of this study, we consulted a preliminary version of that paper, with the generous permission of the author). More generally, regarding the interdependency and complementarity of legislative powers, see Gerald-A. Beaudoin, La Constitution du Canada, 3rd ed., Montreal, Wilson & Lafleur, 2004, pp. 333, 334; Andre Tremblay, Droit constitutionnel-Principes, 2nd ed., Montreal, Éditions Thémis, 2000, pp. 328 et seq.
  • [14] J. Leclair, loc. cit., footnote 13.
  • [15] For an old but interesting article regarding efforts to achieve uniformity in Canada and the role of the courts in that regard, see, for example: John Willis, "Securing Uniformity of Law in a Federal System - Canada", (1943-1944) 5 U. of T. L.J. 367. Note this passage, from another era, in which the author refers to the unifying influence of the English common law on Canadian judges as an "extra-legal factor": "To the ordinary Canadian practitioner, the common law of England is just as much his law, perhaps more so, than the common law of his own province." Might it not be thought that this feeling of belonging to a single tradition still has some influence today at the national level? On the other hand, with respect to the creative role of judges and the influence of the common law on case law in Quebec, we have the following passage regarding, more specifically, the example of international private law: [TRANSLATION] "The influence of foreign law, and in particular English law, on the case law in Quebec has very often resulted from a phenomenon involving legal colonization. However, it can sometimes also be explained by eclecticism or even opportunism on the part of jurists in Quebec." (Adrian Popovici, "Dans quelle mesure la jurisprudence et la doctrine sont-elles source de droit au Quebec ?" (1973), 8 R.J.T. 189, 194).
  • [16] J.-M. Brisson and A. Morel, loc. cit., footnote 13, p. 299. The authors analyze that relationship as it concerns the civil law, more specifically. As they say, their analysis also applies to the relationship between legislation and the common law (id.). This seems logical, given the foundations to which they refer, in particular in the case of implied dependence (id., p. 309-310).
  • [17] See Ruth Sullivan, "The Challenges of Interpreting Multilingual, Multijural Legislation", (2004) 29 Brook. J. Int'l. L. 985, pp. 1030 and 1042.
  • [18] Regarding the foundations, see J.-M. Brisson and A. Morel, loc. cit., footnote 13, pp. 303-304, 309-310.
  • [19] The article by J.-M. Brisson and A. Morel, loc. cit., footnote 13, is replete with examples in which provincial law, and in particular the civil law, is first applied and then disregarded. For the purposes of this study, however, we have selected a large group of studies published by the Department of Justice Canada as part of the program to harmonize federal legislation with the civil law. Those studies are referred to specifically in the Appendix. For our purposes here, see, for example: David Duff, "The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism" (2003), 51 Can Tax J. 1.
  • [20] The examination of that relationship is particularly apparent in constitutional cases. For preliminary purposes, see, for example: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, in maritime law, or Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453, in bankruptcy law. However, it is apparent that this examination is not limited to cases of dissociation. For an eloquent example, see St-Hilaire v. Canada (Attorney General), [2001] 4 F.C. 289 (F.C.A.).
  • [21] Studies regarding bijuralism, particularly in the Supreme Court of Canada, have multiplied. However, those studies do not necessarily deal with federal private law; rather, they concern the convergence of traditions in Quebec or Canada: France Allard, "The Supreme Court of Canada and Its Impact on the Expression of Bijuralism", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 3; France Allard, "Entre le droit civil et la common law: la propriete en quete de sens", in Jean-Claude Gemar and Nicholas Kasirer (eds.), Jurilinguistique: entre langues et droits / Jurilinguistics: Between Law and Language, Paris, Editions juridiques Bruylant / Montreal, Éditions Thémis, 2003, p. 195; Louis Lebel and Pierre-Louis Le Saunier, "L'interaction du droit civil et de la common law a la Cour supreme du Canada"(2006), 47 C. de D. 179.
  • [22] We examine the concept of common law in Part I of this study. For the moment, see John E.C. Brierley, "Quebec's "Common law" (Droits communs): How many are there?", in E. Caparros (ed.), Mélanges Louis-Philippe Pigeon, Montreal, Wilson & Lafleur, 1989; Jean-Maurice Brisson, "Le Code civil, droit commun?", in Le nouveau Code civil: interpretation et application, Journees Maximilien-Caron (1992, Faculte de droit, Universite de Montréal), Montréal, éditions Thémis, 1993.
  • [23] Roderick A. Macdonald, "Encoding Canadian Civil Law", in Mélanges Paul-André Crepeau, McGill University Faculty of Law, Cowansville, éditions Yvon Blais, 1997.
  • [24] R. Sullivan, loc. cit., footnote 17, p. 1042. Note that in the preceding sentence the author says that the federal courts do not have jurisdiction, in the absence of federal legislation, to create common law in areas under federal jurisdiction. However, we think there may have been some theoretical confusion on her part in respect of the common law concepts she uses for the purposes of her thesis (Which she takes from R.A. Macdonald) and that she takes in R.A. Macdonald, loc. cit., footnote 23. We will return to this [see infra, Part I, footnotes 231 to 233].
  • [25] On this point, see the study by Jean-François Gaudreault-Desbiens, Les solitudes du bijuridisme au Canada, Montréal, éditions Thémis, 2007. In another vein, see also John E.C. Brierley, "Bijuralism in Canada", in Droit contemporain - Rapports canadiens au Congres international de droit compare, Montreal, 1990, Montreal, Éditions Yvon Blais / Institut de droit compare, McGill University, 1992, p. 22: "Bijuralism (bijuridisme) in Canada signifies the coexistence of the English Common law and the French Civil law traditions within a country organized along federal lines." See also Michel Bastarache, "Bijuralism in Canada", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1. Note the subtle differences in perspective observed in those papers. Professor Brierley describes bijuralism in relation to Quebec, essentially, where the civil law took root, and associates federal law with common law (paras. 1, 4 and 9). Justice Bastarache makes no such distinction and focuses on the application of the civil law in federal law and the convergence of traditions.
  • [26] On the distinction between formal sources and real sources, see Gerard Cornu, Vocabulaire juridique, Association Henri Capitant, 4th ed., Paris, P.U.F. / Quadrige, 2003, vo. "Source (1a et 1b)". See also: Gerard Cornu, Droit civil - Introduction - Les personnes - Les biens, 7th ed., Paris, Montchrestien, 1994, para. 72, p. 37; Gerald Gall, The Canadian Legal System, 5th ed., Scarborough, Ontario, Thomson - Carswell, 2004, pp. 35 et seq. and 273
  • [27] We will return to this idea of the "background canvas". The expression is used by Justice L'Heureux-Dube in 2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool), [1996] 3 S.C.R. 919.
  • [28] We refer to "norm" and "area" because, as we shall see, federal private law is often defined in relation to legislative powers and not merely the norms, per se, corresponding to those powers. For a definition of "private law", see Nicholas Kasirer (ed.), Private Law Dictionary and Bilingual Lexicons -Obligations, Quebec Research Centre of Private and Comparative Law, Cowansville, Quebec, 2003, vo. "Private Law".
  • [29] Where possible, we have tried to avoid confusion in the use of this terminology. However, on occasion, the expression "federal private law legislation", which, in principle, is less comprehensive, may be used by us where there is no legislation (see, for example, the case of maritime law). Thus, as metonymy, it may ultimately be used to include suppletive sources.
  • [30] On the question of judicial sources, we will not be joining the debate as to whether judges play a different role depending on whether they sit in a common law or a civil law province. Nonetheless, there are those who assign judges, even in the French civil law, [TRANSLATION] "an actual power to create law": see Jacques Ghestin and Gilles Goubeaux, Traite de droit civil - Introduction generale, 4th ed., Paris, L.G.D.J. 1994, paras. 465 and 475 et seq. For a concise but very useful summary of the role of the case law as a source of law, see Gisele Laprise, Les outils du raisonnement et de la redaction juridique, Montreal, Éditions Thémis, 2000, chapter 1. See also G. Gall, op. cit., footnote 26, pp. 35 et seq., and 273 et seq.; Louise Belanger-Hardy and Aline Grenon (eds.), Elements de common law et apercu comparatif du droit civil quebecois, Scarborough, Ontario, Carswell, 1997, chapter 2.
  • [31] Francois Chevrette, Herbert Marx, Droit constitutionnel, Notes et jurisprudence, Montreal, P.U.M., 1982, pp. 5-9. This very interesting passage was included as part of a discussion about the problem of the existence of a federal common law. The passage is quoted by J.-M. Brisson and A. Morel, loc. cit., footnote 13, pp. 309-310, in relation to the bases of the implied dependence of federal private law. Note the use of the word "derive" by Chevrette and Marx: does this mean that suppletive bijuralism is also derivative?
  • [32] As we shall see, the concept of the common law as a "body of law" carries a connotation of unity rather than plurality. See the definition given by John E.C. Brierley, "La notion de droit commun dans un systeme de droit mixte: le cas de la province de Quebec", in La formation du droit national dans les pays de droit mixte, Aix-en-Provence, Presses universitaires d'Aix-Marseille, 1989, p. 104: [TRANSLATION] "... it seems that we can nonetheless identify unity in the conception of the common law, and even in a mixed federal legal system. The concept of 'the common law' is nothing more than the expression of a certain idea: a particular body of norms applies unless expressly provided to the contrary." However, we might think that this idea of a normative corpus does not necessarily, in theoretical terms, preclude formal plurality of legal sources. On the question of the ongoing tension between unity and multiplicity in relation to the concept of common law(s), see H. Patrick Glenn, On Common Laws, Oxford, Oxford University Press, 2005, pp. vii and 88-91.
  • [33] For these purposes, we therefore adopt the second definition of legislation given by Pierre-Andre Cote, Interpretation des lois, 3rd ed., Montreal, Éditions Thémis, 1999, pp. 3-4. Regarding vagueness in the law, see Cote, id., p. 19. See also, on the doctrine of vagueness, the decision of the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, in which the Court wrote: "Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is."
  • [34] By "formal source" we mean the norm as it is recognized in its official form by the state: Gerard Cornu, Vocabulaire juridique, Association Henri Capitant, 4th ed., Paris, P.U.F. / Quadrige, 2003, vo. "Source (1b)": [TRANSLATION] "Form as a result of which the rule is incorporated in the law; official form, referred to as formal source, whose positive effects determine the preparation, statement and enactment of a rule of law: function assigned to the law, custom, case law or literature by legal systems." See also, regarding sources of law: Jacques Ghestin and Gilles Goubeaux, Traite de droit civil - Introduction generale, 4th ed., Paris, L.G.D.J., 1994, No. 236 et seq.
  • [35] Section 8.1, Interpretation Act, R.S.C. 1985, c. I-21.
  • [36] We use this expression in the most general sense, to include the historical constitutional documents we will be discussing in this section. For a formal definition, see s. 52 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.) 1982, c. 11.
  • [37] That continuity is illustrated by the use of the expression "Property and Civil Rights" in the foundational documents of Canadian private law. See infra, footnotes 77 and 82. We will consider the meaning of that expression in the Section dealing with the division of powers (I.A.1.(b)).
  • [38] 30 & 31 Vict., U.K., c. 3 (reprinted in R.S.C. 1985, App. II, No. 5), ss. 91 and 92.
  • [39] Id., heading VI.
  • [40] Particularly in the common law provinces, these also include judge-made law. In Quebec, as well, we may also include the fundamental principles or customary standards, although the Civil Code covers the essential matters: John E.C. Brierley and Roderick A. Macdonald, Quebec Civil Law - An Introduction to Quebec Private Law, Toronto, Emond Montgomery Publications, 1993, No. 108. We will return to the continuation of this "bouquet" of pre-Confederation norms in the provinces under s. 129 of the Constitution Act, 1867 (see infra, footnote 68).
  • [41] We will not be considering the issue from the perspective of aboriginal traditions; in any event, even if we assume that they are also private law systems, this would render the composition of federal law more complex.
  • [42] This statement of the rules governing reception is based on Peter W. Hogg, Constitutional Law of Canada, 4th ed. (loose-leaf), vol. 1, Scarborough, Ontario, Thomson-Carswell, 1997 (update "2005 - Release 1"), para. 2-1; Francois Chevrette and Herbert Marx, Droit constitutionnel, Notes et jurisprudence, Montreal, P.U.M., 1982, pp. 5-9; Louise Belanger-Hardy and Aline Grenon (eds.), Élements de common law et aperçu comparatif du droit civil québecois, Scarborough, Ontario, Carswell, 1997, pp. 51 et seq. For a detailed discussion of the rules of reception, see J.E. Cote, "The Reception of English Law" (1977), 15 Alta. L. Rev. 29, 31 et seq.
  • [43] P.W. Hogg, op. cit., footnote 42, paras. 2-1 and 2-3(b); J.E. Cote, loc. cit., footnotes 42, 31 et seq. For an historical perspective, see Jacques Vanderlinden, "La reception des systemes juridiques europeens au Canada - Regards d'un historien du droit sur ses origines" (1996), 1:1 R.C.L.F. 1. Vanderlinden shows, for example, that there may have been a somewhat lengthy delay between assertion of imperial power over a territory and formal reception of its system of law in that territory.
  • [44] For an overview of the constitutional history and its documentary sources, consult the website "Canada in the Making", under the heading "Constitutional History" (Early Canada Online collection, http://www.canadiana.org/citm/index_e.html).
  • [45] J.E. Cote, loc. cit., footnotes 42, 14, the grant to Champlain authorized him to [TRANSLATION] "legislate in the form of laws, statutes and ordinances . consistent with our own, in so far as he is able".
  • [46] John E.C. Brierley and Roderick A. Macdonald, Quebec Civil Law - An Introduction to Quebec Private Law, Toronto, Emond Montgomery Publications, 1993, No. 9, pp. 8 et seq. Note that for the purposes of this discussion we will not be considering the case of Rupert's Land, granted to the Hudson's Bay Company by the British Crown in 1670 and therefore subject to reception of English law (J.E. Cote, loc. cit., footnote 42, 3).
  • [47] J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 9-11, pp. 9-11; J.E. Cote, loc. cit., footnote 42, 16. See Michel Morin, "Introduction historique au droit civil quebecois", in L. Belanger-Hardy and A. Grenon (eds.), op. cit., footnote 42, p. 59-62; Louis Perret, "Peut-on combiner les modeles ? Le Quebec comme systeme mixte", in F. Rouvillois (ed.), Le modele juridique francais est-il un obstacle au developpement economique ?, Fondation pour l'innovation politique, Paris, Dalloz, 2005, p. 101.
  • [48] Treaty of Paris, 1763, reproduced in Andre Tremblay (ed.), Droit constitutionnel canadien et quebecois - Documents, Montreal, Éditions Thémis, 1999, p. 21; Royal Proclamation, October 7, 1763, Proclamation by King George III (reprinted in R.S.C. 1985, App. II, No. 1). With respect to that period, see J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, no 11, pp. 11 et seq.; P.W. Hogg, op. cit., footnote 42, para 2-3(b). On the question of whether this was a conquest or a cession (because the territory was conquered militarily, and the expression "cedes and guarantees" is used in the Treaty of Paris), the question is of little significance here, since the effect in relation to the rules of reception is the same. With respect to the ambiguity that prevailed during Murray's military government between 1760 and 1763, see J.E.C. Brierley and R.A. Macdonald, id., No. 46, p. 15.
  • [49] Regarding the legal uncertainty caused by the Royal Proclamation of 1763, see J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 13, pp. 15 et seq.; Gerald Gall, The Canadian Legal System, 5th ed., Scarborough, Ontario, Thomson - Carswell, 2004, p. 268.
  • [50] Quebec Act, 1774 ("An Act for making more effectual Provision for the Government of the Province of Quebec in North America"), 14 Geo. III, U.K., c. 83 (reprinted in R.S.C. 1985, App. II, No. 2; hereinafter Quebec Act). See, in particular, ss. IV and VIII-XI.
  • [51] Id., s. VIII: "may also hold and enjoy their Property and Possessions, together with all Customs and Usages relative thereto, and all other their Civil Rights, in as large, ample, and beneficial Manner, as if the said Proclamation, Commissions, Ordinances, and other Acts and Instruments, had not been made".
  • [52] Id., s. VIII.
  • [53] See, in particular, in the Supreme Court, Laurentides Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; R. v. Cote, [1996] 3 S.C.R. 139, para. 49.
  • [54] As history shows, these measures led, at least in part, to the introduction of English law norms. Quebec law was made bijural by the imposition of English law in public law matters and in a number of private law matters, and so began its slow evolution toward being a mixture of sources in its private law: "The result, in private law matters, was the alteration over the next years of Quebec Civil law into the law of a bijural jurisdiction: portions of English law coexisted with the body of old French law reinstituted under the Act." (J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, no 14, p. 17).
  • [55] Regarding the evolution of the law after that period and the development of a Canadian "civil law", see J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 3, p. 2; No. 15 et seq., pp. 17 et seq. See also M. Morin, loc. cit., footnote 47, pp. 62 et seq. For detailed analyses of the development of a "mixed law", see John E.C. Brierley, "La notion de droit commun dans un systeme de droit mixte: le cas de la province de Quebec", in La formation du droit national dans les pays de droit mixte, Aix-en-Provence, Presses universitaires d'Aix-Marseille, 1989, p. 103. See also, regarding procedure, Jean-Maurice Brisson, La formation d'un droit mixte: l'evolution de la procedure civile de 1774 a 1867, Montreal, Themis, 1986.
  • [56] Constitutional Act, 1791, 31 Geo. III, U.K., c. 31 (reprinted in R.S.C. 1985, App. II, No. 3); Union Act, 1840, 3-4 Vict., U.K., c. 35 (reprinted in R.S.C. 1985, App. II, No. 4; hereinafter "Union Act").
  • [57] Section XXXIII of the Constitutional Act, 1791 and s. XLVI of the Union Act use exactly the same wording: "all Laws, Statutes, and Ordinances ... shall remain and continue to be of the same Force, Authority, and Effect ... as if this Act had not been made". Note that the Union Act did not operate to unify the two private law systems, with the clearly expressed proviso in s. XLVI that the laws applicable in each province at the time of Union continued to be in force "in those Parts of the Province of Canada ... as if the said Two provinces had not been united". On this point, see P.W. Hogg, op. cit., footnote 42, para. 2-3(b).
  • [58] The final provisions of s. XXXIII of the Constitutional Act, 1791 and s. XLVI of the Union Act allow the Assemblies to "repeal or vary" the law in force, and that is what Lord Durham suggested be done in respect of the civil law, in his report prior to the 1840 Union. For an historical account and reference regarding the period that led to the 1886 codification, see J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 15 et seq., pp. 18 et seq.; Murray GREENWOOD, "Lower Canada (Quebec): Transformation of Civil Law, from Higher Morality to Autonomous Will, 1774-1866", in Canada's Legal Inheritances (1996), 23 Man. L.J. 132.
  • [59] Section XXXIII of the Constitutional Act, 1791 provides for this as follows: "except ... in so far as the same [all Laws, Statutes, and Ordinances, which shall be in force ...] shall or may hereafter, by virtue of and under the authority of this Act, be repealed or varied by his Majesty, his heirs or successors, by and with the Advice and Consent of the Legislative Councils and Assemblies of the said Provinces respectively ... ."
  • [60] An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, entitled "An Act making more effectual provision for the Government of the Province of Quebec in North America," and to introduce the English Law as the Rule of Decision in all matters of controversy, relating to Property and Civil Rights, U.C. 32 Geo. III, c. 1 (assented to on October 15, 1792). A similar statute is still in force in the Revised Statutes of Ontario: Property and Civil Rights Act, L.R.O. 1990, c. P-29.
  • [61] Section 1 provides: "And whereas, since the passing of the act aforesaid, that part of the late province of Quebec now comprehended within the province of Upper Canada, having become inhabited principally by the British subjects, born and educated in countries where the English laws were established, and who are unaccustomed to the laws of Canada ...". See P.W. Hogg, op. cit., footnote 42, para. 23(b); Paul Romney, "Upper Canada (Ontario): The Administration of Justice, 1784-1850", in Canada's Legal Inheritances (1996), 23 Man. L.J. 132. For an historical overview of the history of Upper Canada, see the article entitled "Upper Canada" on the Internet site of the Canadian Encyclopedia, Historica Foundation (http://www.the canadianencyclopedia.com).
  • [61a] As the title states, the Upper Canada statute provides for the "repeal" of the provision of s. VIII of the Quebec Act, in fact set out in an Act of the British Parliament: "... be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, ... that from and after the passing of this Act, the said provision, contained in the said Act of the fourteenth year of his present Majesty, be, and the same is hereby repealed ... ."
  • [62] Act, supra, footnote 60, s. III. Compare the formula used here with the one used in the Quebec Act, supra, footnote 52.
  • [63] P.W. Hogg, op. cit., footnote 42, para. 2-3(b): "This was an adoption of English laws as of 1792, and it established 1792 as the date of reception of English law for what is now Ontario". The expression "secondary reception" is used in respect of French law by J. Vanderlinden, loc. cit., footnote 43, p. 32.
  • [64] supra, footnotes 57 and 58.
  • [65] The dates of reception are important for determining what the law thus received was when it began to evolve. On this point, concerning the various dates on which English law was received in the provinces and territories of Canada, see J.E. Cote, loc. cit., footnote 42; J. Vanderlinden, loc. cit., footnote 43; P.W. Hogg, op. cit., footnote 42. The date of formal reception of the European civil law tradition is less certain in the case of Quebec. Given that the provisions of the Royal Proclamation were repealed by the Quebec Act, the dates of the French edicts of 1663 and 1664 could be taken as the historical signposts for the formal introduction of the Coutume de Paris in New France (see supra, footnote 46). Some propose 1774, the date of the Quebec Act: F. Chevrette, H. Marx, op. cit., footnote 42, p. 7. Note that for Nova Scotia, New Brunswick and Prince Edward Island, the presence of French law and the "cession" of the colonies by France are not usually considered, since those colonies are considered to have been settlements (see P.W. Hogg, op. cit., footnote 42, para 2-1).
  • [66] supra, footnote 57.
  • [67] The title of the Act was formerly the British North America Act; it was changed by the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.) 1982, c. 11, s. 53(2). Because the French version of the Constitution Act, 1867 is unofficial (see s. 55 of the Constitution Act, 1982), we quote the English only. We refer to the Department of Justice Canada administrative codification, April 1, 1996.
  • [68] P.W. Hogg, op. cit., footnote 42, para. 2-4; Jean Leclair, "Reflexions sur les problemes constitutionnels souleves par l'abrogation du Code civil du Bas Canada" (1997), 99 R. du N. 155, 158-159. Both authors describe the content of this "bouquet" of pre-Confederation norms, to use Professor Leclair's expression. Professor Hogg gives the following description: (1) laws received by the colony; (2) laws enacted for the colony under Royal Prerogative; (3) statute law enacted for the colony by the Imperial Parliament; (4) judicial developments since date of reception; (5) statute law enacted by the colonial legislature.
  • [69] On the non-reception of pre-Confederation private law into the federal legal system, see J. Leclair, loc. cit., footnote 68, p. 191. On that point, Professor Leclair cites ITO - International Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752, para. 30 (hereinafter "ITO"). Contra: Roderick A. Macdonald, "Encoding Canadian Civil Law", in Melanges Paul-Andre Crepeau, McGill University Faculty of Law, Cowansville, Quebec, Éditions Yvon Blais, 1997, p. 579.
  • [70] ITO - International Terminal Operators v. Miida Electronics, supra, footnote 69, para. 27; J. Leclair, loc. cit., footnote 68, p. 160; P.W. Hogg, op. cit., footnote 42, para. 2-4.
  • [71] A. (P.) v. G.(C.), [2002] R.J.Q. 2612, J.E. 2002-1818 (Que. C.A.), para. 30; J.E.C. 71 A. (P.) v. G.(C.), [2002] R.J.Q. 2612, J.E. 2002-1818 (Que. C.A.), para. 30; J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 44. This question, which is related to the question of the reception of pre-Confederation law into the federal legal system, is still a matter on which there is disagreement: see, for example, Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 195 D.L.R. (4th) 135, 51 O.R. (3d) 641 (Ont. C.A.), paras. 224, 225, 234. There are those who argue that pre-Confederation law became "federal law" in 1867, in areas under federal jurisdiction (see R.A. Macdonald, loc. cit., footnote 69, para. 46). In our opinion, and as Professor Leclair said (supra, footnote 69), the language and purpose of s. 129 of the Constitution Act, 1867 does not support that theory. In ITO (supra, footnote 69, para. 27), McIntyre J. clearly stated: "Section 129 does not, in my opinion, support an argument for referential incorporation of provincial law." The decision of the Federal Court of Appeal cited by McIntyre J., Associated Metals and Minerals Corporation v. The "Evie W", [1978] 2 F.C. 710, paras. 6 and 7, refers to pre-Confederation law to determine the jurisdiction of the Federal Court ("for the purposes of Section 101"). Certainly there is the question of how, under s. 129, Parliament could have repealed or amended ("to be repealed, abolished, or altered") the law that had been continued in a province. In our opinion, this does not present a problem, if we acknowledge that residual private law was under federal jurisdiction, while still being plural and localized in the provinces. Nonetheless, we couldn't, without extrapolating, infer that a residual general law (jus commune) was received (Professor Macdonald uses the expression "carry forward") into the federal legal system, based on a provision whose purpose is to ensure the continuity of the law in the provinces. We will return to this question in the Section dealing with the absence of federal common law (I.A.2(a)). See, in particular, infra, footnotes 123 and 128.
  • [72] P.W. Hogg, op. cit., footnote 42, para. 2-4: "With respect to matters within federal legislative authority, there was no single body of law in 1867". Professor Hogg gives the example of the federal Divorce Act which was only enacted in 1968. However, he notes that there is no constitutional requirement of uniformity in federal law (paras. 2-4 and 17.3(b)). See also s. 94 of the Constitution Act, 1867.
  • [73] We will return, infra, footnote 85, to Parliament's private law powers.
  • [74] Regarding the distinction between "general" jurisdiction and "exceptional" jurisdiction, see Jean Leclair, "La Constitution par l'histoire: portee et etendue de la competence federale exclusive en matiere de lettres de change et de billets a ordre" (1992), 33 C. de D. 53, 541-548. See also F. Chevrette, H. Marx, op. cit., footnote 42, p. 639.
  • [75] The expression is seen, in respect of the division of powers, as early as in the Quebec Resolutions of October 1864 (Resolutions 29 and 43). Note that Resolution 43 confirms the exceptional nature of federal private law powers, in that it provides that jurisdiction in this regard is assigned to the provinces "excepting those portions thereof assigned to the General Parliament".
  • [76] On this point, see Andre Tremblay, Les competences legislatives au Canada et les pouvoirs provinciaux en matiere de propriete et de droits civils, Ottawa, University of Ottawa Press, 1967, pp. 39 et seq.; Gerald-A. Beaudoin, La Constitution du Canada, 3rd ed., Montreal, Wilson & Lafleur, 2004, p. 413. For an historical perspective on the constitutional negotiations, see George F.G. Stanley, "Act or Pact? Another Look at Confederation", Report of the Annual Meeting, Canadian Historical Association, 1956, 1-25 (http://www.cha-shc.ca).
  • [77] Regarding the meaning of this expression in the Quebec Act of 1774 (supra, footnote 50), see Louis-Philippe Pigeon, Drafting and Interpreting Legislation, Quebec, Les Publications du Quebec, 1988: "...property and civil rights" must be interpreted according to the meaning given to the expression in an Act of the British Parliament, passed in 1774, since the words must not be interpreted according to civil law." (p. 110). See also John E.C. Brierley, "Bijuralism in Canada", in Contemporary Law - Canadian Reports to the International Congress of Comparative Law, Montreal, 1990, Montreal, Éditions Yvon Blais / Institute of Comparative Law, McGill University, 1992, p. 22.
  • [78] This is the broad interpretation. A narrow interpretation is also possible, particularly having regard to the Royal Instructions of 1775 to Governor Carleton. As well, the expression may not completely correspond to the concept of private law. On these questions, see A. Tremblay, op. cit., footnote 76, pp. 19 et seq.; J. Leclair, loc. cit., footnote 74, pp. 541-548. A detailed historical analysis, which also adopts a liberal approach, is given in W.F. O'Connor, "Property and Civil Rights in the Province" (1940), 18 Can. Bar Rev. 331, 337.
  • [79] On the question of the sources of private law and public law in Quebec, see Laurentide Motels Ltd. v. Beauport (City), supra, footnote 53. The Supreme Court quotes L.-P. Pigeon, op. cit., footnote 77. Pigeon's reasoning is that anything that is not expressly set out in the Quebec Act derives from English public law. Laurentide Motels was recently revisited in Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663. On this question, and the historical interpretation of the expression "Property and Civil Rights", see the nuances suggested by Andree Lajoie, Contrats administratifs: jalons pour une theorie, Montreal, Éditions Thémis, 1984, pp. 48 et seq. For a recent analysis of the relationship between the civil law and administrative law, see Denis Lemieux, "Le role du Code civil du Quebec en droit administratif" (2005), 18 Can. J. Admin. L. & Prac. 119.
  • [80] P.W. Hogg, op. cit., footnote 42, para. 21.2; F. Chevrette, H. Marx, op. cit., footnote 42, p. 639. The Privy Council influenced the determination of the broad meaning of the expression, in particular in Citizens Insurance Company of Canada v. Parsons (1881-1882), 7 A.C. 96, 110 et seq. See A. Tremblay, op. cit., footnote 76, pp. 76 et seq.; W.F. O'Connor, loc. cit., footnote 78, pp. 335 et seq.; W.R. Lederman, "Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation" (1975), 53 Can. Bar Rev. 597, 601.
  • [81] John Deere Plow Co. v. Wharton, [1915] A.C. 330. Professor J. Leclair, loc. cit., footnote 74, p. 544, alludes to the "virtual meaning" of the expression.
  • [82] P.W. Hogg, op. cit., footnote 42, para. 21.2. See also Henry Brun and Guy Tremblay, Droit constitutionnel, 4th ed., Cowansville, Quebec, Éditions Yvon Blais, 2002, p. 475; G.-A. Beaudoin, op. cit., footnote 76, pp. 414 et seq.
  • [83] Private law, particularly in Quebec, is not limited solely to the civil law, since it may also include, for example, commercial law and civil procedure. See Nicholas Kasirer (ed.), Private Law Dictionaries and Bilingual Lexicons - Obligations, Quebec Research Centre of Private and Comparative Law, Cowansville, Quebec, 2003, vo. "Private Law".
  • [84] P.W. Hogg, op. cit., footnote 42, para. 21.2; W.R. Lederman, loc. cit., footnote 80, p. 601.
  • [85] P.W. Hogg, op. cit., footnote 42, para. 21.2; J. Leclair, loc. cit., footnote 74, p. 546; G.-A. Beaudoin, op. cit., footnote 76, pp. 437 et seq; H. Brun and G. Tremblay, op. cit., note 82, pp. 478 et seq. The category fluctuates and the authors also add other examples: navigation (subs. 91(10)), currency (subs. 91(14)), weights and measures (subs. 91(17)), legal tender (subs. 91(20)), penitentiaries (subs. 91(28)).
  • [86] H. Brun and G. Tremblay, op. cit., footnote 82, p. 479; P.W. Hogg, op. cit., footnote 42, para. 21.2. Professor Hogg refers to the general federal power set out in the introductory sentence of s. 91. Note also that subs. 92(13) includes the phrase "in the Province". For an analysis of the general power in relation to the provinces' exclusive jurisdiction over property and civil rights, see, in particular, Jean Leclair, "The Elusive Quest for the Quintessential 'National Interest'" (2005), 38 U.B.C. Law Rev. 353, 356 et seq.
  • [87] This idea is taken from Professor Jean Leclair of the Université de Montréal faculty of law, who stated it in: "L'interface entre le droit commun privé provincial et les compétences fédérales 'attractives'", in Ysolde Gendreau (ed.), Un cocktail de droit d'auteurs, ALAI Canada / Éditions Thémis, 2007, p. 25 (note that for the purposes of this study, we consulted a preliminary version of that paper, with the generous permission of the author). Professor Leclair's learned comments in that paper were a major source of inspiration for this section, and in particular the portion that follows.
  • [88] Id.: [TRANSLATION] "In so far as they relate to private law, sections 91 and 92 of the Constitution share this feature, and this characteristic is of crucial importance: they both assign a power of the same nature. . The defining characteristic of private law is precisely the unity and interpenetration of the parts that compose the whole". See John Deere Plow Co. v. Wharton, supra, footnote 81; G.-A. Beaudoin, op. cit., footnote 76, pp. 331-335.
  • [89] Professor Leclair uses the expression [TRANSLATION] "filling the gaps": id., p. 6. To describe the nature of this relationship, the idea of a "reservoir" has been used: Jean-Maurice Brisson, "L'impact du Code civil du Quebec sur le droit federal: une problematique" (1992), R. du B. 345, 348. On the idea of complementarity in the division of powers, see G.-A. Beaudoin, op. cit., footnote 76, p. 334; Andre Tremblay, Droit constitutionnel - Principes, 2nd ed., Montreal, Éditions Thémis, 2000, pp. 328 et seq. Here we see the idea of the characteristic function of the "common law", to which we will return later (infra, footnote 112). The nature of the relationship between federal law and the civil law has been described by referring to superimposition and insertion: see infra, footnote 145.
  • [90] Jean-Maurice Brisson and André Morel, "Droit fédéral et droit civil: complementarité, dissociation" (1996), 75 R. du B. can. 297, 299. G.-A. Beaudoin, op. cit., footnote 76, p. 334, refers to [TRANSLATION] "interdependence".
  • [91] On the rule of exhaustiveness in the division of powers, which is related to the idea of complementarity, see Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, para. 34; H. Brun and G. Tremblay, op. cit., footnote 82, p. 448; P.W. Hogg, op. cit., footnote 42, para. 15.9(e).
  • [92] For a recent example dealing with the analysis of the "essential elements" of a "specific" federal power, as compared with the "general" power of the provinces in relation to property and civil rights, see: Reference re Employment Insurance Act, [2005] 2 S.C.R. 669.
  • [93] Cushing v. Dupuy (1880), 5 A.C. 409: "It is therefore to be presumed, indeed it is a necessary implication, that the Imperial statute, in assigning to the Dominion Parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure within the Provinces, so far as a general law relating to those subjects might affect them."
  • [94] J. Leclair, loc. cit., footnote 87, p. 6. On the principles of interpretation that apply to the division of powers, from the standpoint of efficiency (unity) versus diversity, see also, by the same author: Jean Leclair, "The Supreme Court of Canada's Understanding of Federalism: Efficiency at the Expense of Diversity", (2003) Queen's L.J. 411, 416 et seq.
  • [95] On the double aspect theory, see Hodge v. The Queen (1883-1884), 9 A.C. 117: "The principle ... is, that subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91." On the watertight compartment theory, see A.G. Canada v. A.G. Ontario (Labour Conventions), [1937] A.C. 326: "While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure."
  • [96] Reference re Same-Sex Marriage, supra, footnote 91, para. 32.
  • [97] Kirkbi AG v. Gestions Ritvik, [2005] 3 S.C.R. 302; Reference re Firearms Act, [2000] 1 S.C.R. 783; General Motors of Canada v. City National Leasing, [1989] 1 S.C.R. 641.
  • [98] Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 13. See, on this point, P.W. Hogg, op. cit., footnote 42, chapter 16. On the origin of this power, compare H. Brun and G. Tremblay, op. cit., footnote 82, p. 457 and G.-A. Beaudoin, op. cit., footnote 76, p. 354.
  • [99] Rothmans, Benson & Hedges v. Saskatchewan, [2005] 1 S.C.R. 188; Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161, in which the Court held that paramountcy applies only where there is a real conflict, where one enactment says "yes" and the other "no". The first-mentioned decision gave a more nuanced answer. See also the approach adopted in Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Law Society of British Columbia v. Mangat, supra, footnote 98.
  • [100] J. Leclair, loc. cit., footnote 87, pp. 7 et seq.
  • [101] Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453. In the latter decision there seems to have been some confusion between the ideas of compatibility and applicability of legislation. On this point, see H. Brun and G. Tremblay, op. cit., footnote 82, p. 464; J. Leclair, loc. cit., footnote 87, p. 10. The "occupied field" argument was rejected in Rothmans, Benson & Hedges v. Saskatchewan, supra, footnote 99, para. 21.
  • [102] Commission de transport de la Communaute urbaine de Québec v. National Battlefields Commission, [1990] 2 S.C.R. 838; Bell Canada v. Quebec (CSST), [1988] 1 S.C.R. 749.
  • [103] supra, footnote 72.
  • [104] See supra, footnotes 71 and 72.
  • [105] J.E.C. Brierley, loc cit., footnote 55, p. 108; J.E.C. Brierley, loc cit., footnote 77, p. 27. The author takes this further, and is of the opinion that private law matters under federal jurisdiction are directly connected with the common law. On this point, see the comments by J.-M. Brisson, loc. cit., footnote 89, p. 346, at footnote 3; J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 311, at footnote 52. On the question of provincial private law, we would recall that the Parliament of Canada has authority to impose uniformity only in respect of Ontario, New Brunswick and Nova Scotia, with the agreement of the provincial legislatures (s. 94, Constitution Act, 1867).
  • [106] See supra, footnote 72; J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 44. The Parliament of Canada did not legislate in relation to the substantive requirements, in respect of Quebec, until 2001: Federal Law-Civil Law Harmonization Act No. 1, S.C. 2001, c. 4, ss. 4-7. A national law redefining the substantive requirements to include same-sex spouses was then enacted in 2005: Civil Marriage Act, S.C. 2005, c. 33.
  • [107] The concept of "common law" is closely connected with the sources: "The notion of a droit commun or 'common law' is a device for advancing a justification for the selection of legal rules that goes beyond this dimension of historical fact. It reaches into the very heart of the theoretical scheme of 'sources of law' in the legal system as a whole and plays the role of an ultimate justification." (John E.C. Brierley, "Quebec's 'Common law' (Droits communs): How many are there?", in E. CAPARROS (ed.), Mélanges Louis-Philippe Pigeon, Montreal, Wilson & Lafleur, 1989, 109, at p. 113.
  • [108] Id., p. 114; H. Patrick Glenn, "La Disposition préliminaire du Code civil du Québec, le droit commun et les principes généraux du droit" (2005), 46 C. de D. 339, 340-341.
  • [109] Professor J.E.C. Brierley, loc. cit., footnote 107, p. 114, notes three possible meanings of the concept of common law, of which we will refer mainly to the first and third here: "Beyond the droit commun residing in 'historical fact' ..., there is a droit commun residing in 'implicit norms' and a further droit commun residing in the Civil Code itself because of its particular form as a 'legislative enactment'." We will return to the second meaning later.
  • [110] J.E.C. Brierley, loc. cit., footnote 55, p. 104. See Nicholas Kasirer (ed.), op. cit., footnote 83, vo. "droit commun": [TRANSLATION] "1. Law that serves as the substantive basis for an entire legal system and that therefore applies where there are no specific rules".
  • [111] As H.P. Glenn wrote, loc. cit., footnote 108, p. 341, regarding the [TRANSLATION] "multiplicity of common laws": "Each common law evidently represents a unique, isolated experience, one that approaches the universal but never achieves it." In his authoritative work on the diversity of common laws (H. Patrick Glenn, On Common Laws, Oxford, Oxford University Press, 2005, p. vii), Professor Glenn explains this constant tension between the single and the multiple: "What has been lost in all of this is the idea that law is common in relation to law which is not common, which is particular, and that a common law lives in constant, dialogical tension with an inescapable intellectual companion, the jus particulare." On the multiplicity of common laws in federations, id., pp. 88-91.
  • [112] On the question of the evolution of the concept of common law, from the Roman vision of mandatory application to a European vision of suppletive application, see H. Patrick Glenn, loc. cit., footnote 108, pp. 342 et seq. On the suppletive function of a civil code, in particular the function of filling the gaps left by legislation as a "reservoir", and its structuring function, see Jean-Maurice Brisson, "Le Code civil, droit commun?", in Le nouveau Code civil: interprétation et application, Journées Maximilien-Caron (1992, Faculty of Law, Université de Montréal), Montreal, Éditions Thémis, 1993, p. 296; J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 32; J.E.C. Brierley, loc. cit., footnote 107, pp. 122 et seq.
  • [113] S.Q. 1991, c. 64. In a recent decision, the Supreme Court of Canada described the Civil Code as "the basic general law in Quebec": Gilles E. Neron Communication Marketing Inc. v. Chambre des notaires du Quebec, [2004] 3 S.C.R. 95, para. 56. On the subject of the preliminary provision, and in particular the history of the wording of the provision and the definition of the concept of jus commune that it conveys, see Alain-Francois Bisson, "La Disposition préliminaire du Code civil du Québec"(1999), 44 McGill L.J. 539.
  • [114] J.E.C. Brierley, loc. cit., footnote 107, p. 114.
  • [115] The expressions are taken from J.E.C. Brierley, loc. cit., footnote 55, p. 115, H.P. Glenn, loc. cit., footnote 108, p. 349, and J.-M. Brisson, loc. cit., footnote 112, p. 296, respectively. That last reference indicates that we include in this meaning the common law seen primarily from the standpoint of its [TRANSLATION] "conceptual function" (id., p. 308). See also, on this point, J.E.C. Brierley, loc. cit., footnote 55, p. 111.
  • [116] To quote J.E.C. Brierley, id., pp. 115 et seq., the common law is understood in this sense as [TRANSLATION] "a reservoir of law based on the implicit values of a particular society". It can be the basis of both private law and fundamental public law, as in the case of the Canadian Charter of Rights and Freedoms. This idea of the common law also derives, it seems to us, from the conception of underlying constitutional principles that the Supreme Court of Canada described in Reference re Secession of Quebec, [1998] 2 S.C.R. 217. That decision refers to these two important characteristics: the suppletive function and the normative function. Note in particular the discussion of the "nature of the principles" (paras. 49 et seq.) and this eloquent sentence: "These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based." In that passage, which is replete with metaphors for life, the Court writes that the principles "function in symbiosis", they "inform and sustain the constitutional text", they are its "lifeblood". The Court says that the principles "may in certain circumstances give rise to substantive legal obligations", that they "are also invested with a powerful normative force". It will be noted that these principles - which the Court also calls "values", "postulates", "guides". and even "lodestar" ! - appear to have moved beyond the stage of judicial "settling" and acquired mandatory force. For example, regarding the preamble, the Court lays out this method (para. 53): "... we determined that the preamble 'invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text'."
  • [117] This aspect of the common law is associated with its written manifestations, they being a part of that whole, and in particular the Civil Code, which was described as follows in J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 31: "Substantively, a Code also has a unique role. Unlike a statute, it is not merely an episodic or instrumental reflection of parliamentary will: it is the distillation in legislative form of the animating themes, fundamental values, transcendent principles, and institutions of the private law." On the Civil Code as "background canvas", see infra, footnote 127.
  • [118] This is what Professor J.-M. Brisson (loc. cit., footnote 112, p. 305) calls [TRANSLATION] "substantive common law". He describes it as follows, speaking of the Civil Code: [TRANSLATION] "... the fundamental civil law, that is, the body of legal rules that will ordinarily provide the philosophical and intellectual basis of the civil law in its entirety.".
  • [119] H.P. Glenn, loc. cit., footnote 108, pp. 348 et seq. He defines the "general principles" from a comparative law perspective, as follows: [TRANSLATION] "To speak of general principles is to speak of a suppletive common law, drawn from multiple sources, which, where necessary, supplements local or regional law." With regard to the preliminary provision and the references in that provision to "general principles", see A.-F. Bisson, loc. cit., footnote 113, pp. 556-557. Professor Bisson describes the general principles as follows: [TRANSLATION] "... enigmatic, elastic normative entities that are always on call; there has almost never been agreement as to their autonomous existence, their nature, their provenance and their legitimate functions, but they serve as the spirit and the spine of the system. There are those who will flush them out of the legislation itself; others look inward to the spirit of the national law; still others see them in legal tradition; and then there are those who find them in a sort of universal, or at least widespread, reason, which comparative law is suited to provide." And see Cie immobilière Viger Ltée v. Laureat Giguère Inc., [1977] 2 S.C.R. 67, in which the doctrine of unjust enrichment was recognized in civil law, in this statement in particular: "The Civil Code does not contain the whole of civil law. It is based on principles that are not all expressed there, which it is up to case law and doctrine to develop . ."
  • [120] [1977] 2 S.C.R. 1054. See also McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654 (hereinafter "McNamara"); R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695 (hereinafter "Fuller"). For a summary of the tests for determining the jurisdiction of the Federal Court, see ITO, supra, footnote 69.
  • [121] Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra, footnote 120, para. 5: "This contention suggests a comprehen-sive incorporation or referential adoption of pro-vincial law to feed the jurisdiction of the Federal Court under s. 23."
  • [122] Id., para. 17. The Court states: "...whether under stat-ute or regulation or common law, as in the case of the Crown ... ." In McNamara, supra, footnote 120, the Supreme Court determined that a common law rule allowing the Crown to bring action in any court of competent jurisdiction in the matter was not applicable in Canada and therefore was not legislation assigning jurisdiction to the Federal Court, since that rule cannot apply in a federal state whose Constitution provides for the division of powers and the power to establish courts. When action is brought against the Crown, however, the situation may be different. On that point, see the difficulties that arose in Fuller, supra, footnote 120. For an interpretation of the words "common law" in the expression quoted above, see Roberts v. Canada, [1989] 1 S.C.R. 322. The effect of that interpretation, for determining the jurisdiction of the Federal Court, was to confirm that there is a "common law relating to aboriginal title which underlies the fiduciary nature of the Crown's obligations." Because Indian title was declared to be sui generis, it also being a collective title and a fiduciary obligation of the Crown, we might wonder whether this is not an example of federal public common law. At least, that is the conclusion that tends to emerge on reading R. v. Cote, [1996] 3 S.C.R. 139, para. 49, where the Supreme Court held the law of aboriginal title to be a "distinct species of federal common law" and referred in its analysis to the pivotal role of "British sovereignty" or the fact that the issue was the "relations between the British Crown and indigenous societies". (Regarding aboriginal title, see also Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, paras. 41 to 47). Thus while the existence of a federal "common law", as judge-made law, can be argued in some cases (for example, "as in the case of the Crown" or perhaps aboriginal title), its necessarily very limited scope must be acknowledged ("in some areas", in the words of Wilson J. in Roberts) as compared with the body of private law that makes up the common law of a province.
  • [123] For a consistent critique of that decision, one that is, it seems to us, motivated primarily by a concern for efficiency and uniformity, see P.W. Hogg, op. cit., footnote 42, para. 7.2(b). See also R.A. Macdonald, loc. cit., footnote 69, paras. 39 and 40. He quotes, specifically, R. v. Rhine, [1980] 2 S.C.R. 442. Note, however, that in the opinion of the Supreme Court, this was a case in which the Federal Court's jurisdiction in respect of contracts was based on a "detailed statutory framework". The Court added: "In the McNamara case, there was no such statutory shelter within which the transactions there were contained as there is in the present case." (Emphasis added). The Court did add: "It should hardly be necessary to add that 'contract' or other legal institutions, such as 'tort' cannot be invariably attributed to sole provincial legislative regulation or be deemed to be, as common law, solely matters of provincial law." The use of the expression "as common law" ("de même que la common law") in that sentence seems somewhat ambiguous to us (it being? like? ... common law). Considering as well that the decision related to a "detailed statutory framework", the comment is not very persuasive as justification for finding that federal common law exists. In Northern Telecom Canada Ltd. v. Canadian Union of Communications Workers, [1983] 1 S.C.R. 733, in which the Supreme Court alluded to "federal common law", it expressly followed (see para. 15) Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra, footnote 120.
  • [123a] Two remarks must be made on this point. First, in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra, footnote 120, Laskin J. wrote that Parliament cannot amend or repeal provincial laws that it has not first adopted or enacted. In our view, the reference to "provincial laws", in a discussion of civil law, does not invalidate our reasoning regarding pre-Confederation law. Essentially, the civil law of Quebec was pre-Confederation in origin, when that decision was written. Second, we would recall that Parliament does have the authority to amend or repeal certain provisions of pre-Confederation law that fall within its authority, under Section 129 of the Constitution Act, 1867. However, as we said earlier, supra, footnote 71, reception of pre-Confederation law into the federal legal system, as the residual general law, cannot be inferred from the authority granted there, given the way that Section is worded and the object of the provision.
  • [124] To quote Wilson J. in Roberts v. Canada, supra, footnote 122, except in certain specific areas such as aboriginal title, there is no "federal body of common law co-extensive with the federal legislature's unexercised legislative jurisdiction over the subject matters assigned to it". The consequence of Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra, footnote 120, has been clearly understood by legal authors. See J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 44: "Because it can only establish a general law by statute, there can be no federal judicially driven 'common law'." Cf. J.E.C. Brierley, loc. cit., footnote 77, p. 35, where the author concludes, more specifically with regard to the jurisdiction of the Federal Court: "... there is no 'federal common law' arising in connection with the jurisdiction of the Federal Court of Canada ... ." On the consequences of the absence of federal common law on the interaction between federal legislation and provincial private law, see J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 310. On the question of federal common law, see also France Allard, "The Supreme Court of Canada and its Impact on the Expression of Bijuralism", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 3, pp. 25-26; and Louis Lebel and Pierre-Louis Le Saunier, "L'interaction du droit civil et de la common law a la Cour suprême du Canada" (2006), 47 C. de D. 179, 217-219. Note that they say that a [TRANSLATION] "common law rule deriving from the legislation" may apply where the legislation is silent, notwithstanding the absence of "autonomous suppletive federal law". That statement is consistent with the acknowledgment of the creation of "unenacted law in the course of interpreting federal legislation" as stated by Ruth Sullivan, "The Challenges of Interpreting Multilingual, Multijural Legislation" (2004), 29 Brook. J. Int'l. L. 985, 1042. We will return (infra, footnotes 231 to 233) to the argument that narrower concept of the federal common law.
  • [125] The reservation is stated by R. Sullivan, loc. cit., footnote 124, p. 1042 (footnote 246). Assuming there is a federal common law that is a general source of private law, is it conceivable that the Federal Court would be unable to apply it when other courts could?
  • [126] J.-M. Brisson, loc. cit., footnote 112, p. 298: [TRANSLATION] "There therefore cannot be, in private law, an unwritten federal common law." Note, however, that federal legislation may contain formal incorporation or reference provisions in certain defined cases. See, for example, s. 32, Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50; s. 88, Indian Act, R.S.C. 1985, c. I-5; s. 9, Bills of Exchange Act, R.S.C. 1985, c. B-4.
  • [127] See 2747-3174 Quebec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919. In that decision, in separate reasons, L'Heureux-Dubé J. described the Civil Code as the background canvas of the civil law in its entirety, as she described the Canadian Charter of Rights and Freedoms as the basic fabric in the case of statute law or the common law. She adopted the image of the Civil Code as a unified representation of the civil law from J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 87: "It is in this theoretical rather than empirical sense that a Code can claim to be a gapless presentation of the basic fabric of the Civil law."
  • [128] When seen this way, the law is then found in its unwritten dimension, that is, its unenacted (for the civil law) or undiscovered (for the common law) dimension, as a virtual resource that lies outside the positive law. Superimposed on it are the fundamental principles that underlie public law and private law. For a demonstration of fundamental private law at the federal level, see the essay by R.A. Macdonald, loc. cit., footnote 69. Professor Macdonald discusses the concepts of the general law as unenacted law ("common law") and as fundamental law ("jus commune"), and also a third concept, suppletive law. The concept of "jus commune" is particularly appropriate here. In utilitarian terms, it could be described as a "reservoir of legal concepts and rules" or a "dictionary of private law terms", and in substantive terms, as the "general juristic foundation and conceptual reference point for later substantive legal development, and a compass for the discovery of other, implicit principles of the private law." Professor Macdonald concludes, relying primarily on s. 129 of the Constitution Act, 1867, that there is a federal jus commune, in the utilitarian sense, which manifests itself, in Quebec, primarily in the pre-Confederation law in the Civil Code of Lower Canada, in terms of its unwritten substance ("substantive conceptual referent"), and an implied, general residual law to which provincial private law, for example the new Civil Code of Quebec, can contribute as suppletive law (paras. 41-52, 67-69). On that point, note that Professor Macdonald questions, in passing (paras. 39-40), the decisions in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., supra, footnote 120, and McNamara Construction (Western) Ltd. v. The Queen, supra, footnote 120. Note also that Professor Macdonald's thesis has been contradicted on a crucial point (discussed supra, footnotes 71 et seq.), the reception of pre-Confederation law into the federal legal system: see J. Leclair, loc. cit., footnote 68. It should also be noted that this theory of a Canadian civil law based on the pre-Confederation Civil Code of Lower Canada (see para. 71) now appears to have been contradicted by the repeal of the provisions of that Code by Parliament in the Federal Law-Civil Law Harmonization Act No. 1, supra, footnote 106, s. 3, "in so far as they relate to subjects that fall within the legislative competence of Parliament and have not been expressly repealed" (cf. s. 129, Constitution Act, 1867).
  • [129] We would even say supra-national. See H.P. Glenn, loc. cit., footnote 108, p. 348: [TRANSLATION] "To talk about general principles is therefore to talk about a suppletive general law, drawn from multiple sources, that operates, where necessary, to supplement local or regional law."
  • [130] This argument was discussed supra, footnote 124, and we will return to the subject infra, footnotes 231 to 233.
  • [131] On the question of "Canadian civil law", see R.A. Macdonald, loc. cit., footnote 69. See also Nicholas Kasirer, "Qu'est-ce que le 'droit civil canadien'?", preface by Paul A. Crepeau, La réforme du droit civil canadien: une certaine conception de la recodification, 1965-1977, Quebec Research Centre of Private and Comparative Law, Montreal, Éditions Thémis, 2003, p. xv: [TRANSLATION] "In the federal context, bijuralism is then not simply the passive coexistence of the two traditions; the two are in fact related. We might propose a vision of bijuralism in which the traditions look to each other and inform each other, as in the case of legal bilingualism" (p. xviii). For an illustration of this ideal perspective, in the case of marriage, see P.A. Crepeau, id., pp. 39-40. There are studies or commentaries available now on the phenomenon of convergence and "dialogue" between the legal traditions: Michel Bastarache, "Bijuralism in Canada", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, 19, at p. 26. France Allard, loc. cit., footnote 124; Charles D. Gonthier, "Quelques réflexions sur le bijuridisme - Convergence et valeurs" (2003), 33 R.G.D. 305, 317; France Allard, "Entre le droit civil et la common law: la propriété en quête de sens", in J.-C. Gemar and N. Kasirer (eds.), Jurilinguistics: Between Law and Language / Jurilinguistique: entre langues et droits, Montreal, Éditions Thémis / Paris, Éditions juridiques Bruylant,./ 2003, p.195; L. Perret, loc. cit., footnote 47; L. Lebel and P.-L. Le Saunier, loc. cit., footnote 124. Note, in particular, the subtle conclusions in the study by Lebel J. and Le Saunier, p. 238: [TRANSLATION] "A study of the case law shows that the positive law rules, the common law and civil law traditions, the scheme of the legal systems in issue and certain methodological aspects continue to limit the creation of a relationship of true convergence." On a more sociological level, such obstacles to convergence are admirably explained in Jean-Francois Gaudreault-Desbiens, Les solitudes du bijuridisme au Canada, Éditions Thémis, 2007. We will return to the question of convergence and bijuralism, infra, footnote 232.
  • [132] J.E.C. Brierley, loc. cit., footnote 77, p. 22: "Bijuralism (bijuridisme) in Canada signifies the coexistence of the English Common law and the French Civil law traditions within a country organized along federal lines."
  • [133] The bijural nature of federal private law is recognized in s. 8.1 of the Interpretation Act: "Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada ... ."
  • [134] For a fundamental article illustrating this, with numerous examples drawn from the corpus of federal legislation, see J.-M. Brisson, loc. cit., footnote 89. After doing an exhaustive review of federal legislation, Brisson states: [TRANSLATION]: "Although not all federal legislation is private law, virtually all involves private law concepts, in a general way and without defining them" (p. 346). When the program to harmonize federal legislation with civil law was announced, 300 acts in the Revised Statutes of Canada were identified that called for in-depth examination, along with about 30 acts in each year of the annual statutes. See Mario Dion, "Harmonization of Federal Law with Quebec Civil Law: Canadian Bijuralism and its Actualization", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, 27, at p. 29.
  • [135] J.-M. Brisson and A. Morel, loc. cit., footnote 90.
  • [136] supra, footnote 89.
  • [137] The subject is one that had been talked about long before it was studied and systematically analyzed. See, for example, Andrée Lajoie, Expropriation et fédéralisme au Canada, Montréal, Presses de l'Université de Montréal, 1972, p. 11.
  • [138] Section 8.1. The Federal Court of Appeal delivered a very important and well-documented decision on the question of complementarity in St-Hilaire v. Canada (Attorney General), [2001] 4 F.C. 289. See also 9041-6868 Quebec Inc. v. Canada (M.N.R.), (2005) FCA 334. In the Supreme Court of Canada, see Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461, para. 29; D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), [2005] 2 S.C.R. 564, para. 34. In the Quebec Court of Appeal, see W.(D.) v. G.(A.), [2003] R.J.Q. 1411; (2003) CanLII 47442 (Que. C.A.), para. 27; Greenberg v. Gruber (May 27 , 2004), Montreal 500-09-014103048 (C.A.), paras. 24 et seq. In the Quebec Superior Court, see, in particular, G. (R.) v. A. (L.) (April 18, 2000), Montreal 500-12-123540-837 (S.C.). With respect to the Supreme Court's decision in D.I.M.S., see the following commentary: Philippe Denault, "D.I.M.S. Construction Inc. (Syndic de) v. Quebec (Procureur général): La fin d'une controverse - Mise en oeuvre du principe de complementarité par la Cour suprême du Canada" (2006), 27 R.P.F.S. 235.
  • [139] J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 299. They state that "dissociation" exists when the federal legislation "derogates from" (we would say "exempts itself from") the provincial law that applies as suppletive law.
  • [140] See, for example, the definition of "liability" in the Crown Liability and Proceedings Act, supra, footnote 126, s. 2; the definition of "immovable" in the Federal Real Property and Federal Immovables Act, 1991, c. 50, s. 2; the definition of "secured creditor" in the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 2.
  • [141] See supra, Section I.A.1. J.-M. Brisson and A. Morel, loc. cit., footnote 90, pp. 309-310 note the absence of federal common law, primarily because the federal level did not "receive" fundamental law under s. 129 of the Constitution Act, 1867.
  • [142] They also refer to "indirect references" (id., p. 308), on which we will not comment, but that essentially refers to situations where it is common law rather than statute law that effects the reference to provincial private law (for example, in the case of contracts by the federal Crown). On the theory of the implicit dependency of federal legislation, see the premises that J.-M. Brisson, loc. cit., footnote 89, was the first to state.
  • [143] J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 309. It will be noted here that the authors refer to the "two legal systems in force", that is, the civil law and the common law. They base their approach on the traditions, thus asserting that the common law provinces share a single common law. However, they acknowledge the differences between the various provinces' private law: [TRANSLATION] "It is sometimes forgotten that these provinces' private law, with which federal statutes' relationship is one of dependency, is not uniform and varies from province to province, despite the fact that they share a single common law." (id., p. 299).
  • [144] Id., pp. 316-317.
  • [145] Id., p. 317 et seq. and 323 et seq. Note that it is the provision (the "question") that is characterized as private law or public law, not the entire context of the legislation: id., pp. 309 and 320. See also, on this point, St-Hilaire v. Canada (Attorney General), supra, footnote 138, para. 93. Cf. Travel Just v. Canada, 2006 FCA 343. We will return to the private law / public law distinction, in terms of the logical sequence of interpretation (infra, footnote 207). For an example of complementarity in a context involving public law and unenacted law, and more specifically in relation to contracts and liability, see Canada v. Monit International Inc., 2004 FCA 335 (F.C.A.). For analyses illustrating the complex relationship between federal law and provincial private law, see, for example: D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 138; Newcourt Financial Ltd. v. Canada, 2004 FCA 91.
  • [146] Id., p. 300: [TRANSLATION] "To say that federal legislation is not autonomous means simply that taken in isolation, it does not express the totality of the law that applies in matters within the legislative authority of Parliament."
  • [147] Id., p. 298: [TRANSLATION] "... the relationship between the civil law and federal legislation is entirely analogous to the relationship between Quebec legislation and the Civil Code." On the suppletive role of the Civil Code of Quebec as jus commune or common law, see, inter alia, Dore v. Verdun (City), [1997] 2 S.C.R. 862, para. 16. For an example dealing with civil procedure, see Lac d'Amiante du Quebec Ltee v. 2858-0702 Quebec Inc., [2001] 2 S.C.R. 753, para. 40. See also, in the literature: A.-F. Bisson, loc. cit., footnote 113; J.M.-Brisson, loc. cit., footnote 112.
  • [148] The sharpest criticism of applying the principle of complementarity in interpreting federal legislation, in particular to harmonize it with Quebec civil law, comes from Ruth Sullivan, "The Challenges of Interpreting Multilingual, Multijural Legislation" (2004), 29 Brook. J. Int'l. L. 985. Sullivan (pp. 1024-1025) contrasts an approach based on dialogue and integration ("Derivative Bijuralism") with an approach based on the complementarity of federal and provincial sources ("Suppletive Bijuralism"). She criticizes the "complementarity" approach, essentially arguing that this is a civil law approach to interpretation ("a Civilist coup", p. 1027, referring to the literature in which the issue has been examined). She states that it is based on premises that are incorrect in terms of the common law: "For example, the notion of a pre-existing, self-contained and coherent jus commune, which lies at the heart of the Harmonization Program, is a civilist notion" (p. 1027, footnote 197; p. 1041). Moreover, in her view, the implied dependency of federal legislation, and reference to the provincial common law as suppletive law, is an inadequate (although correct) analysis, for the following two reasons (p. 1030): the analysis (i) ignores the complementary role of judicial interpretation, and (ii) implies that any derogation from provincial private law is an anomaly. We will return to the first reason in the next Section (I.B.). Suffice it to say, for now, that the second reason seems to arise from a misunderstanding. We note, first, that her view is confined to interpretation and does not take into consideration the historical and constitutional premises considered by Brisson and Morel. The implied dependency of federal law in relation to property and civil rights is rooted in historical continuity and the division of powers, which assigned common law rules, and jurisdiction in principle in respect of private law, to the provinces. Second, it seems that Sullivan is mistaken when she fails to discern in the thinking of Brisson and Morel that the principle of complementarity is analyzed by analogy with the preliminary provision of the Civil Code of Quebec. By failing to see that this is an analogy, she conflates the concept of a civil code ("pre-existing, self-contained and coherent") with the broader concept of common law (jus commune). To say that this concept of "common law" (which, admittedly, is used in a specific sense in the preliminary provision) is unknown to the common law is to deny the universal meaning of the concept of common law as a model of suppletive law (see H.P. Glenn, op. cit., footnote 111) and the fact that this concept is also found as a model in the common law tradition (see Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Toronto, Butterworths, 2002, p. 342). This is undoubtedly why Sullivan ultimately relies on a theoretical and speculative concept of "unenacted law" (p. 1042), which seems to serve as a reservoir, or suppletive law, from this common law perspective based primarily on the courts, just as provincial law does from the perspective of complementarity (with respect to the jus commune as [TRANSLATION] "fierce enemy of common law jurists", see H.P. Glenn, loc. cit., footnote 108, p. 341). In our opinion, therefore, what is important is that provincial private law plays a suppletive role because of the jurisdiction in principle of the provinces in relation to property and civil rights. The premise adopted in Sullivan's critique, the idea that complementarity brings in provincial private law as "common law" in respect of federal legislation in the same way that the Civil Code is placed in an organic relationship with the statutes of Quebec, seems to us to be incorrect (p. 1042: "[The principle of complementarity] asserts that the suppletive law must be the jus commune of the province."). We will return, in the next Section (I.B), to the relationship between statute law and jus commune and the "derivative bijuralism" theory.
  • [149] Contra: Nicholas Kasirer (ed.), op. cit., footnote 83, vo. "droit commun" (see Rem. 4). Note that the dictionary clearly distinguishes between droit commun and suppletive law (see Rem. 5. and vo. "Droit suppletive / Suppletive law"). While that seems correct to us, it is not correct to think that the expression "droit supplétif" ["law that completes federal legislation"] is used "incorrectly" in the preamble to the Federal Law-Civil Law Harmonization Act, No. 1, supra, footnote 106.
  • [150] Otherwise, it would have to be assumed that provincial common law applies as federal general law, an argument we refuted in the previous Section (I.A.).
  • [151] supra, footnote 111. H.P. Glenn, loc. cit., footnote 108, p. 342: [TRANSLATION] "The law that is common must be identified, by the word "common", to distinguish it from the other, different kinds of law that apply within the same territory."
  • [152] The word "commun" comes from the Latin communis: "qui appartient à tous" (Le nouveau petit Robert, Dictionnaire alphabétique et analogique de la langue française, Josette Rey-Debove and Alain Rey (eds.), Paris, Dictionnaires Le Robert, 2003.) [In English, "common": "belonging to, open to, or affecting, the whole community or the public" (The Concise Oxford Dictionary) - Tr.]
  • [153] The expression is used in s. 8.1 of the Interpretation Act, in reference to the application of provincial law as suppletive law: "... unless otherwise provided by law, . reference must be made to the rules, principles and concepts in force in the province .".
  • [154] S. 8.1 of the Interpretation Act is even more precise; it uses the expression used in the Constitution Act, 1867 to refer to private law: "the law of property and civil rights".
  • [155] We would note that there is no requirement for uniformity in federal law (supra, footnote 72); see F. Chevrette and H. Marx, op. cit., footnote 10, 868: [TRANSLATION]] "... at the federal level, unenacted law is not a single corpus of law ...". See also J.-M. Brisson and A. Morel, loc. cit., footnote 90, 332: [TRANSLATION] "... federal private law legislation is, as a rule, merely a part of a whole, the rest of which is under provincial jurisdiction ... ." Here we are looking at acceptance of a decentralized federalism in respect of private law, an original prerequisite of the Canadian federation (supra, footnote 76) that is fundamentally positive, if we are to recognize the general virtues of bijuralism. On this point, see Stephane Dion, "Notes for an Address - Symposium on the Harmonization of Federal Legislation with Quebec Civil Law", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, 1, at p. 4: "We have long known that the unity of the state does not necessarily go hand in hand with uniformity of legislation. ... If there is one country that knows that equality is not synonymous with uniformity, it is certainly ours." See also Michel Bastarache, "Bijuralism in Canada", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, 18, at p. 23: "While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not be applied uniformly throughout the country in every respect."
  • [156] supra, footnote 145.
  • [157] Henry L. Molot, "Clause 8 of Bill S-4: Amending the Interpretation Act", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 6, p. 1. The author also uses the expression "sealed off", for example in this statement: "But federal enactments are not sealed off entirely from provincial law."
  • [158] id. The word "bridge" is used by Molot at p. 11. On the question of the importance of the concepts and language in establishing these implicit references, see at p. 5 (and at p. 10): "How is provincial law incorporated into or made to apply to the interpretation of federal legislation ? In a sense, in applying or interpreting federal legislation a common law or civil law lawyer or judge may be required to "think outside" his or her normal professional range of experience. As illustrated by some of the examples described above, that cerebral process depends principally on legal concepts and language."
  • [159] The expression has been adopted in the context of harmonization of federal legislation. See André Morel, "Methodology and Work Plan - Final Report", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism: Collection of Studies, Ottawa, Department of Justice Canada, 1997, 265, at p. 269-270; Louise Maguire Wellington, "Bijuralism in Canada: Harmonization Methodology and Harmonization", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 4, at pp. 6 et seq. It had been used earlier in Policy for Applying the Civil Code of Quebec to Federal Government Activities, Department of Justice Canada (June 7, 1993), published in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 4, Appendix I.
  • [160] The Department of Justice Canada Policy on Legislative Bijuralism (1995) uses the expression "touches on" to describe the interaction between federal legislation and provincial law: "... b) will undertake, in drafting both versions of every bill and proposed regulation that touches on provincial or territorial private law, to take care to reflect the terminology, concepts, notions and institutions of both of Canada's private law systems" (emphases added). The Policy is published in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 4, Appendix III.
  • [161] On the question of the objectives of the initiative to review and harmonize federal legislation, see Andre Morel, "Harmonizing Federal Legislation with the Civil Code of Quebec: Why and Wherefore?" and "Drafting Bilingual Statutes Harmonized with the Civil Law", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism: Collection of Studies, Ottawa, Department of Justice Canada, 1997, 1 and 309 respectively. See, generally, the papers published in Booklet 1 of The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001. For the results of the harmonization work, see, in particular, the "Laws" page at the following Internet site: http://canada.justice.gc.ca/eng/csj-sjc/harmonization/bijurilex/harmonization-loisdharmonisation.html. See also, more recently, L. Perret, loc. cit., footnote 47, where the author describes the historical context of the harmonization program and some economic considerations relating to the convergence of the legal systems.
  • [162] For an historical review and an overview of the issues in relation to the drafting of federal legislation, see Lionel Levert, "Bilingual and Bijural Legislative Drafting: To Be or Not To Be?", (2004) 25 Stat. L. Rev. 151. See also Policy for Applying the Civil Code of Quebec to Federal Government Activities (June 7, 1993), supra, footnote 159.
  • [163] The preamble to the Harmonization Act, No. 1, supra, footnote 106, refers to the "unique character of Quebec society". See also, on this point, the commentary by S. Dion, loc. cit., footnote 155, 2, regarding the resolutions adopted by the two chambers of Parliament in 1995 to recognize that the distinct character of Quebec includes the civil law tradition. See Government Motion on the Distinct Society, House of Commons, Debates, 1st Session, 35th Parliament, November 29 and December 11, 1995; 995; Quebec: Motion for Recognition as Distinct Society, Senate, Debates, 1st Session, 35th Parliament, December 7 and 14, 1995.
  • [164] The word is taken from Jean Leclair, loc. cit., footnote 87.
  • [165] The "signposts" image is also used: Aline Grenon, "The Interpretation of Bijural or Harmonized Federal Legislation: Schreiber v. Canada (A.G.)" (2005), 84 Can. Bar Rev. 132, at p. 146. The comment was also made regarding "doublets". On that drafting technique, see L. Maguire Wellington, loc. cit., footnote 159 and Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269. On the importance of terminology in creating references, see s. 8.2 of the Interpretation Act. The case law is replete with examples in which an expression has led to the application of provincial law. See, for example, Decary J. in St-Hilaire v. Canada (Attorney General), supra, footnote 138, para. 93: "I do not think there can be any doubt that this part of the Act, which refers to 'succession' without defining it, should be interpreted in Quebec in light of the civil law." See also: "personal or bodily injury", in Schreiber v. Canada (Attorney General), supra, footnote 165; "diligence", in Peoples Department Stores Inc. (Trustee of) v. Wise, supra, footnote 138; "beneficially owned / droit de beneficiaire", in Canada (A.G.) v. National Bank of Canada, (2004) FCA 92 and Newcourt Financial Ltd. v. Canada, supra, footnote 145; "contract of service", in 9041-6868 Quebec Inc. v. Canada (M.N.R.), supra, footnote 138; "devolution / vesting", in Lefebvre (Trustee of); Tremblay (Trustee of), [2004] 3 S.C.R. 326; "compensation", in D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 138; "seize and detain", in Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), (2006) SCC 24; "payment", in Commission de la Construction du Quebec v. Canada (M.N.R.), 2006 FCA 49 (F.C.A.); "mandate", in Factums Instanter, S.E.N.C. v. Canada, 2006 TCC 53. Note the clarification by the Federal Court of Appeal regarding reference to private law concepts: Royal Winnipeg Ballet v. Canada (M.R.N.), 2006 FCA 87 (F.C.A.).
  • [166] P.-A. Cote, op. cit., footnote 33, p. 94: [TRANSLATION] "A reference occurs when a provision of an enactment expressly requires that the reader refer to another text." See also John Mark Keyes, "Incorporation by Reference in Legislation" (2004), 25 Stat. L. Rev. 180, at p. 182 in particular. Concerning incorporation by reference, delegation of powers and cooperation in relation to federalism, see, in particular, R. v. Furtney, [1991] 3 S.C.R. 89 and Elmer A. Driedger, "The Interaction of Federal and Provincial Laws" (1976), 54 Can. Bar Rev. 694, at p. 712: "A statute incorporating future laws of another jurisdiction must be carefully worded, lest it be struck down as an attempt at delegation." Concerning regulations, see Jacques Desjardins and Josee Legault, "L'incorporation par renvoi dans l'exercice du pouvoir reglementaire a l'echelon federal" (1991), 70 Can. Bar Rev. 244.
  • [167] S. 8.1, Interpretation Act. Concerning the crucial role of interpretation, see H. Molot, loc. cit., footnote 157, and the quotation at footnote 158. For examples of confusion between categories in interpretation, see first an approach that mixes the ordinary meaning with the complementarity of provincial law in Schreiber v. Canada (Attorney General), supra, footnote 165 (we will return to this, infra, footnote 198 and Part II.A.3(a)). At the other extreme, and a much more intuitive level, see how a judge of the Court of Quebec relied on s. 8.2 of the Interpretation Act to determine the meaning of the word "reputé" (deemed) in the Youth Criminal Justice Act: Spenard v. Promotuel Bois-Francs (August 29, 2005), Arthabaska 415-32003671-040 (C.Q. Small Claims). A similar haste can be seen in a decision concerning the concept of interest in the Interest Act, R.S.C. 1985, c. I-21, in relation to the provisions of the Consumer Protection Act, L.R.Q., c. P-40.1: Blanchette v. Corporation Credit Trans Canada (May 17, 2004), Montreal 500-06-000187-027 (S.C.). And see how a judge of the Tax Court of Canada refers to the civil law, citing s. 8.1 of the Interpretation Act, to examine the concept of "life income fund" (!): Letarte v. The Queen, 2005 TCC 420, para. 11. Concerning the difficulty of classifying these concepts, see infra, footnote 198.
  • [168] Concerning the "neutral terms" technique, that is, the use of terms or phrases "that have no particular connection to either of the two legal systems in Canada", see Lionel Levert, "The cohabitation of Bilingualism and Bijuralism in Federal Legislation in Canada: Myth or Reality?", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, p. 7-8. Concerning the use of the concept of incorporation in this context, see Peoples Department Stores Inc. (Trustee of) v. Wise, supra, footnote 138. That decision uses the term "incorporation" to describe the (backward) interaction of the Civil Code of Quebec with the Canada Business Corporations Act, R.S.C. 1985, c. C-44. In our view, there is unfortunately some confusion in the use of the concept, as compared with the case of implicit dependency: see H. Molot, loc. cit., footnote 157, p. 5; the Hon. Michel Bastarache, "Les difficultes relatives a la determination de l'intention legislative dans le contexte du bijuridisme et du bilinguisme legislatif canadien", in Jean-Claude Gemar and Nicholas Kasirer (eds.), Jurilinguistics: Between Law and Language / Jurilinguistique: entre langues et droits, Paris, Éditions juridiques Bruylant / Montreal, Éditions Thémis, 2003, 95, at p. 110.
  • [169] These cases appear to be simply the exception: J.-M. Brisson and A. Morel, loc. cit., footnote 90, 328-329. For reference to unenacted law as a suppletive source of federal private law, see R. Sullivan, loc. cit., note 148. Sullivan favours an approached based on "derivative bijuralism". We will return to this in the next Section (I.B).
  • [170] On the various meanings of the word "interpretation", see P-A. Cote, op. cit., footnote 33, p. 4-5. We primarily adopt the second meaning identified by Professor Cote: [TRANSLATION] "A second and more limited meaning of the term interpretation does not refer to the entire process of determining the meaning and scope of the legal rules set out in an enactment; rather, it refers to that process only where it requires a particular effort of the reader, made necessary by the presence of something that is obscure and must be clarified." For a "unified theory" based on the concepts of "vagueness", "ambiguity", "subtext" and "analogy", see Randal N. Graham, Statutory Interpretation. Theory and Practice, Toronto, Montgomery Publications, 2001.
  • [171] Richard Tremblay, L'essentiel de l'interprétation des lois, Cowansville, Quebec, Éditions Yvon Blais, 2004, p. 48. See pp. 52 et seq. for [TRANSLATION] "particularly important" principles, as Tremblay puts it. The surveys done in the literature are not themselves definitive, even though there is no reluctance on the part of the authors to advance them, sometimes for academic reasons. Concerning "Ilbert's Rules", by Louis-Philippe Pigeon, op. cit., footnote 77, pp. 93 et seq., see the commentary by Alain-Francois Bisson, "L'interpretation adequate des lois", in E. Caparros (ed.), Melanges Louis-Philippe Pigeon, Montreal, Wilson & Lafleur, 1989, p. 89, at p. 91.
  • [172] An "holistic" approach to interpretation, as compared to the judicious and ultimately necessary use of maxims of interpretation, is cautioned against by Randal N. Graham, op. cit., footnote 170, p. 110.
  • [173] Heading preceding s. 8.1: "Rules of Construction / regles d'interpretation". Professor P.-A. Cote, op. cit., footnote 33, p. 48 et seq., notes that the principles may be regarded as "guides" or "arguments". See also Alain-Francois Bisson, loc. cit., footnote 171, at p. 92, who refers to them as [TRANSLATION] "useful tools".
  • [174] The line between "intention" and "object" is not a clean one, and the first appears to include the second. However, it seems relatively clear that intention refers to what is originally desired or sought, and object refers specifically to an end result. See P.-A. Cote, op. cit., footnote 33, concerning the concept of the intention of Parliament: [TRANSLATION] "Particular note must be made of the ambiguity of the expression. It refers both to the meaning that the author of the text intended to give it and to the practical objective of the author in enacting the text " (p. 7); "... it refers both to what Parliament intended to mean by the text enacted and to what it intended to accomplish by enacting it" (p. 476; emphasis added). Concerning the object as end result, we need only refer here to the etymological meaning: "'objectum' ce qui est place devant" (Le Petit Robert) ["object": thing sought or aimed at (Concise Oxford Dictionary) - Tr.]
  • [175] Driedger's formula is an excellent example of the persuasive force, perhaps even normative authority, of the legal literature. It has been described as the method "preferred" by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. The Court quotes Elmer Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983, p. 87. That formula has been cited by the Court on many occasions. See, for example, again per Iacobucci J., Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559. More recently, Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), supra, footnote 165, para. 36. In taxation, see Will-Kare Paving & Contracting Ltd. v. Canada, [2000] 1 S.C.R. 915, para. 32 (Major J.) and para. 50 (Binnie J., dissenting) and Ludco Enterprises Ltd. v. Canada, [2001] 2 S.C.R. 1082, paras 37 to 39. See also the approach proposed by the Hon. Gerard V. La Forest, "Foreword", in Ruth Sullivan, Statutory Interpretation, Concord, Ontario, Irwin Law, 1997, p. xv. We would also note the article in which a summary of the principal aspects of interpretation is provided by the Hon. Michel Bastarache, loc. cit., footnote 168, p. 95. The use of the formula by the Supreme Court was recently the subject of thorough examination and serious critique in Stephane Beaulac, Pierre-André Côté, "Driedger's 'Modern Principle' at the Supreme Court of Canada: Interpretation, Justification, Legitimization" (2006), 40 R.J.T. 131. In particular, we note, as the authors state, that in methodological terms this is a "starting point".
  • [176] Deschamps J. does a step-by-step review of the elements of the formula in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152. The "modern" approach is analyzed and criticized in some regards in Ruth Sullivan, op. cit., footnote 148, pp. 1 et seq. Professor Sullivan notes the multidimensional aspect of the approach: "The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation."
  • [177] Concerning the parallel between Driedger's formula and the rule laid down in s. 12, see Bell Express Vu Limited Partnership v. Rex, supra, footnote 175, para. 26.
  • [178] Note the use of the same terms in the preliminary provision of the Civil Code of Quebec: "... The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication.. ..." (emphasis added).
  • [179] See J.-M. Brisson and A. Morel, loc. cit., footnote 90, 316: [TRANSLATION] "The most important comment to be made on reading the case law that has been decided in the last 25 years is undoubtedly that the foundations that were laid out, in the first part of this study, to establish the complementarity of federal law and the civil law, are indeed part of the 'living law', even if they are rarely explicitly used."
  • [180] Note that before 1988, paragraph 8(2)(c) the Official Languages Act, R.S.C. 1985, c. O-3.01 included an interpretive provision that allowed for federal legislation to be interpreted on the basis of the legal system of the province in which it was intended to apply. Concerning that short-lived paragraph, which can be explained by an essentially unilingual method of drafting, see Remi Michael Beaupre, Interpretation de la legislation bilingue, Montreal, Wilson & Lafleur, 1986, pp. 78 and 163; A. Morel, loc. cit., footnote 159, p. 303.
  • [181] For a description of the origins of that section, see A. Morel, loc. cit., footnote 161, at p. 326 et seq. For a detailed analysis of the text introduced in Parliament, see H. Molot, loc. cit., footnote 157, Booklet 6. Concerning the methods of interpretation that follow on sections 8.1 and 8.2, in particular in the context of the harmonization of federal legislation, see, in order: L. Maguire Wellington, loc. cit., footnote 159, Booklet 4; R. Sullivan, loc. cit., footnote 148; A. Grenon, loc. cit., footnote 165. The only decision, to our knowledge, that has dealt in depth with the subject in terms of the foundations and interpretation is the decision of the Federal Court of Appeal in St-Hilaire v. Canada (Attorney General), [2001] 4 F.C. 289.
  • [182] S. 8.2, Interpretation Act: "Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces."
  • [183] H. Molot, loc. cit., footnote 157, pp. 16 et seq. Section 8.2 is more affirmative and does not include the point that reference to provincial law must take place if "necessary". However, it makes reference to an ambiguity (in terminology or meaning), which could be caused by implicit reference to provincial law. In any event, it is clear, in our view, that the principle stated in Section 8.1 is preeminent, as is, in turn, the introductory portion of s. 8.1, affirming that the civil law and common law traditions are equally authoritative. On this point, see the genealogy of the provisions in A. Morel, loc. cit., footnote 161, p. 327 et seq. It suggests that the principle of interpretation relating to terminology assumes the existence of a connection with the private law of the province.
  • [184] See R.N. Graham, op. cit., footnote 170, p. 110. Note that the preamble to the Harmonization Act, No. 1, supra, footnote 106, incorporates the interaction between federal legislation and provincial law in the act of interpretation itself: "Whereas the harmonious interaction of federal legislation and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions, as the case may be" (emphasis added).
  • [185] See R. Tremblay, loc. cit., footnote 171, p. 48: [TRANSLATION] "The intellectual process of interpreting an enactment essentially adheres to imperatives that escape Parliament's attention; it is meta-legislative, if not meta-legal, in nature". We will return to the question of the obligation to refer to provincial suppletive law if necessary, infra, footnotes 215 and 247.
  • [186] For an example of the conflict between the purposive approach and the complementarity principle, see the respondent's argument in Garneau v. Canada(M.N.R.), 2006 TCC 160, para. 59.
  • [187] J.-M. Brisson and A. Morel, loc. cit., footnote 90, pp. 323 and 317 respectively.
  • [188] See J.E.C. Brierley and R.A. Macdonald, op. cit., footnote 46, No. 44, p. 47: "To date, ... federal enactments have taken a form that presupposes the existence of a provincial general law. Legislation relating to marriage and divorce, for example, is necessarily embedded in a legal framework that includes filiation, alimentary obligations, and matrimonial property law - subjects governed by the Civil Code" (emphasis added).
  • [189] A clear intention to make reference presents no problems, because that is a formal reference. However, such an intention may be expressed implicitly by Parliament, or may be imputed to Parliament by a court. On this point, see R. Sullivan, op. cit., footnote 148, p. 2, and in particular this important passage concerning the sources on which presumed intentions are based: "Presumed intention embraces the entire body of evolving legal norms which contribute to the legal context in which official interpretation occurs. These norms are found in Constitution Acts, in constitutional and quasi-constitutional legislation and in international law, both customary and conventional. Their primary source, however, is the common law." Note this caution stated by Professor J.-M. Brisson, loc. cit., footnote 89, pp. 349-350: where Parliament is silent, an intention to refer to provincial law must not be presumed, and complementarity must in all cases be [TRANSLATION] "appropriate". However, he acknowledges that silence may be "deliberate".
  • [190] Recognition formally expressed, for all federal legislation, in the introductory portion of s. 8.1 of the Interpretation Act and in the preamble to the Harmonization Act, No. 1, supra, footnote 106: "Whereas the provincial law, in relation to property and civil rights, is the law that completes federal legislation when applied in a province, unless otherwise provided by law." The Supreme Court of Canada is of the view that this is a clarification: see D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 138, paras. 34 and 64.
  • [191] Concerning presumptions of the uniformity and stability of the law, which are described as "pragmatic arguments", see P.-A. Cote, op. cit., footnote 33, pp. 633 et seq. and 636 et seq. Concerning the possibility that Parliament intends and accepts "legal asymmetry", see St-Hilaire v. Canada (Attorney General), supra, footnote 181, paras. 43, 49-53; 9041-6868 Quebec Inc. v. Canada (M.N.R.), supra, footnote 165, para. 6. In the next part, we will discuss several examples of decisions that, on the contrary, presume the uniformity of federal private law legislation. For an example in which the consequences of the principle of complementarity are mitigated, in terms of asymmetry, see Royal WinnipegBallet v. Canada (M.N.R.), supra, footnote 165: "When the scope of federal legislation refers to a private law concept, which is not defined in the statute, the bijural nature of our federation leaves open the possibility that the statute may be applied differently in Quebec from common law Canada."
  • [192] We will consider later (infra, footnote 209) what this word involves in terms of legislative recognition of the complementarity principle. Concerning references to this word in the case law, see, for example, Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), supra, footnote 165, para. 80; Canada (A.G.) v. National Bank of Canada, supra, footnote 165, paras 33-34; A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2006 FCA 136, para. 12 (appeal dismissed by the Supreme Court: 2007 SCC 42; see, in particular, the reasoning of Abella J.); Travel Just v. Canada, 2006 FCA 343; Letarte v. The Queen, 2005 TCC 420, para. 11.
  • [193] In the next part (Section II.A.1), see the examples of decisions based on lexicological arguments.
  • [194] P.-A. Cote, op. cit., footnote 33, p. 325 et seq. See, for example, Markevich v. Canada, [2003] 1 S.C.R. 94, regarding the expressions "proceedings" and "cause of action". This is a good example of the complexity of interpretation relying on ordinary meaning, the immediate context of the provision (including the rule regarding the ordinary meaning of the two language versions) and the objective of Parliament.
  • [195] id., p. 330. Professor Cote states a caveat regarding the use of dictionaries. R. Sullivan, op. cit., footnote 148, pp. 21-24, also adds nuances regarding the concept of "ordinary meaning". In her view, this does not mean "dictionary meaning" or "literal meaning": "Most often, however, it refers to the reader's first impression of meaning, the understanding that spontaneously emerges when words are read in their immediate context ... ." (id., p. 21). However, she states that ordinary meaning is defined differently when the issue is the distinction between that and technical meaning, and that ordinary meaning is presumed in the event of ambiguity: "However, in statutory interpretation the expression 'ordinary meaning' is also used to refer to the common or popular meaning of words as opposed to any technical or specialized meaning they might bear. When a word or series of words has both an ordinary nontechnical meaning and a technical or local one, the ordinary (non-technical, non-local) meaning is presumed." (id., p. 37). In the next part (Section II.A.1), we will examine a number of cases considered in the context of the interaction between federal legislation and provincial law, where the ordinary meaning was preferred over the technical meaning.
  • [196] See, for example, Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141, and in particular the reasons of Binnie J. (dissenting). In taxation cases, see, for example, Shell Canada Ltee c. Canada, [1999] 3 S.C.R. 622, para. 40 et seq. See also R. Sullivan, op. cit., footnote 148, p. 49 and P.A. Cote, op. cit., footnote 33, p. 359, who cite the classic English decision on the question, Sussex Peerage Case (1844), 8 E.R. 1034. Note in particular this passage in that decision: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense." That rule runs counter to the comprehensive approach to interpretation: see R. Sullivan, op. cit., footnote 148, p. 9. In the English tradition of interpretation, it is counterbalanced by the golden rule and the mischief rule: see M. Bastarache, loc. cit., footnote 168, p. 95 and R. Tremblay, op. cit., footnote 171, p.11. For a consistent critique of the way it is used by the courts, see Ruth Sullivan, "The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation", in Ejan Mackaay (ed.), Les certitudes du droit - Certainty and the Law, Montreal, Éditions Thémis, 2004. See also J.M. Kernochan, "Statutory Interpretation: An Outline of Method" (1976), Dalhousie L. J. 333, at p. 338.
  • [197] Compare the methods of interpreting federal private law provisions proposed by R. Sullivan, loc. cit., footnote 148, p. 1047, and A. Grenon, loc. cit., footnote 165, p. 144. Sullivan believes that the first stage of the analysis is to determine whether the terminology is used in its ordinary sense. Grenon, however, believes that it must first be determined whether the provision is private law, with the language being of secondary importance, since references to private law concepts may be made using non-legal or neutral terms.
  • [198] Grey areas are inevitable (and in fact there are those who rush into them without hesitation: see supra, footnote 167). They sometimes derive from the nature of things. H. Molot, loc. cit., footnote 157, mentions a few examples (pp. 3 and 17). Between the expression "ecological integrity", which is clearly independent of the technical language of private law, and the words "property", "contract", "sale" and "lease", there are terms whose affiliation is less certain. For instance, as he notes, the word "death" can be understood both in its ordinary sense and in a technical sense, depending on the context. Grey zones can therefore be created by using imprecise or ambiguous language. See, on this point, the caveat stated by A. Morel, loc. cit., footnote 161, 3, p. 13: "For example, there is no advantage in assigning vague or imprecise terms to concepts for which a well-established civil law terminology exists. ... The use of approximate language often entails some ambiguity for jurists, which could have been avoided by using a technical terminology making it possible to determine which civil law concepts or institutions are at issue." On the advantages and disadvantages of the drafting technique employing "neutral" terms, see the same author, id., pp. 19-20 and L. Maguire Wellington, loc. cit., footnote 159, p. 9. Some take the view that this is Parliament's preferred drafting technique: see Lionel Levert, loc. cit., footnote 168, p. 7-8. However, if we refer to the harmonization statutes enacted to date by Parliament, that is clearly not the only possible method: see Harmonization Act, No. 1, supra, footnote 106 and Federal Law-Civil Law Harmonization Act, No. 2, S.C. 2004, c. 25. In other words, in our view, the confusion that has arisen regarding this technique should be clarified, and the use of what is a "neutral" term (one used in its ordinary sense) and of what is a "common term" (one used in the technical sense from the private law of more than one province) should be distinguished. Concerning the problems created by the distinction between language and law, see R. Sullivan, loc. cit., footnote 148, pp. 1045 et seq. The author decries the application of the shared meaning rule, which is applicable in interpreting bilingual legislation, in a case of bijuralism analyzed by the Supreme Court in Schreiber v. Canada (Attorney General), supra, footnote 165. For another critique, see A. Grenon, loc. cit., footnote 165. For a convergent analysis of bilingualism and bijuralism in cases of ambiguity, see also M. Bastarache, loc. cit., footnote 168, pp. 110-111.
  • [199] J.-M. Brisson and A. Morel, loc. cit., footnote 90, 309.
  • [200] Note these words in Section 8.1: "rules, principles or concepts forming part of the law of property and civil rights". Section 8.2, which relates to terminology, refers to identical meanings in each legal system: "civil law terminology . common law terminology"; "terminology that has a different meaning in the civil law and the common law". For an analysis of legal language from the perspective of [TRANSLATION] "affiliation" and "specialty", see Gerard CORNU, Linguistique juridique, 3rd ed., Paris, Montchrestien, 2005, pp 11 et seq., 62 et seq.
  • [201] The idea of a jus commune that serves as the "default legislative dictionary" is advanced by Roderick A. Macdonald, "Harmonizing the Concepts and Vocabulary of Federal and Provincial Law: The Unique Situation of Quebec Civil Law", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Ottawa, Department of Justice Canada, 1999, 27, paras. 34 et seq.
  • [202] See supra, footnotes 164 et seq.
  • [203] Concerning the advantages of the "doublet" technique in relation to the legal specificity of the traditions, see L. Lebel and P.-L. Le Saunier, loc. cit., footnote 124, 214-215; A. Morel, loc. cit., footnote 161, p. 20-21.
  • [204] L. Maguire Wellington, loc. cit., footnote 159, p. 4-8; R. Sullivan, loc. cit., footnote 148, p. 1047; and A. Grenon, loc. cit., footnote 165, p. 144.
  • [205] In one case, the autonomy of the federal legislation is stressed; in the other, its implicit dependency on autonomous provincial law. Compare the following two approaches: Ruth Sullivan, op. cit., footnote 148, p. 95: "In approaching bijural legislation, the courts must bear in mind various constitutional principles and values. Under the federal system established by the Constitution Act, 1867, Parliament has jurisdiction to enact legislation that operates uniformly across the country, imposing a single regulatory regime applicable in each province."; and A. Grenon, loc. cit., footnote 165, p. 145: "If Justice Lebel had taken that approach, he would first have had to determine whether or not Section 6(a) of the SIA employed rules, principles or concepts forming part of the law of property and civil rights." Both articles deal with the analysis done in Schreiber v. Canada (Attorney General), supra, footnote 165. That decision addresses a provision of the State Immunity Act, R.S.C. 1985, c. S-18, that was harmonized. The provision was applied in Ontario, in an international law context, and the Court relied on the rule of the shared meaning of the two language versions, concluding that the more restrictive civil law concept reflected the intention of Parliament. Note that the Supreme Court did not refer to s. 8.1 of the Interpretation Act. In a way, it adopted a transverse approach, examining all the possible meanings in various contexts, and ultimately relied on the principles of interpretation of bilingual legislation to resolve an apparent discrepancy caused by a doublet. For a less "comparative" approach, see 9041-6868 Quebec Inc. v. Canada (M.N.R.), supra, footnote 165.
  • [206] J.-M. Brisson and A. Morel, loc. cit., footnote 90, 309. On this point, regarding interpretation, see also H. Molot, loc. cit., footnote 157, p. 15. We will return, infra, footnote 208, to the power of Parliament to determine the meaning of federal private law in its legislation. Note that we use the expression "complementarity principle" to refer to the intervening mechanism in determining sources. The assigning of the erroneous connotation of "premise" to the expression undoubtedly arises from the fact that it is one of its components.
  • [207] Note here that it is the provision that is a matter of private law, and not the statute as a whole: see supra, footnote 145. Note also that the characterization of the extrinsic suppletive source, that is, whether it is private law or public law, comes second in the process of interpretation, where it has been determined that it is necessary to refer to suppletive sources: see infra, footnote 247. Compare the two methods proposed in the literature, to which we referred earlier: supra, footnote 197. Concerning the constitutional aspects, see supra, Section I.A. Concerning the limits of judicial intervention, in particular in respect of legislative vacuums, see the next section, concerning judicial power (I.B.2).
  • [208] If we look only at cases observed in practice, in the legislation and case law, it would appear to be the reverse. See J.-M. Brisson, loc. cit., footnote 89, p. 352-353; J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 307, 309, 316. R. Sullivan, loc. cit., footnote 148, criticizes those who, in her view, think of the complementarity principle as if federal private law legislation were an exception to provincial law (see pp. 1030 and 1042). It seems to us, however, that her critique disregards the historical and constitutional dimension of the complementarity principle. The papers she criticizes refer essentially to the general jurisdiction of the provinces over private law, which allows for the suppletive relationship where the legislation is incomplete; those papers assume and respect the freedom of Parliament to determine the meaning of federal private law in its legislation, although they devote less attention to it. It should therefore be recalled, and stressed, that while federal private law is actually an exception to provincial law, federal private law legislation can express the private law that is necessary in order to achieve its objects under the exclusive or ancillary powers of Parliament. As noted earlier (supra, footnote 206), the complementarity principle does not itself mean complementarity in principle, and it seems to us that the papers cited by Sullivan do not at any time imply such a conception. (As to whether, in practice, the complementarity principle can lead to knee-jerk reaction on the part of what she calls "bureaucrats", that is an entirely different question.) On the question of the importance of considering the division of powers and federal paramountcy in relation to private law, see J.-M. Brisson and A. Morel, loc. cit., footnote 90, p. 303; Ruth Sullivan, op. cit., footnote 148, p. 103. We will return to the second aspect of Sullivan's critique, the possibility of referring to unenacted common law as suppletive law, in the next Section (I.B.2).
  • [209] The term "necessary" in fact marks a turning point in interpretation. See the judgments cited on this point, supra, footnote 192. Also note these two ways of considering the word, as either the closing or opening of the door to provincial law: R. Sullivan, loc. cit., footnote 148, p. 1040, sees it as a kind of evidence that s. 8.1 does not codify the principle of complementarity; conversely, David Duff, whom she cites, sees it as the "condition" for referring to provincial law as suppletive law (David Duff, "The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation and Bijuralism" (2003), 51 Canadian Tax Journal 64, p. 116). While both visions are justified (closing the door, because of federal paramountcy, opening the door, because of the general jurisdiction of the provinces: supra, footnote 208), in our opinion it would be incorrect not to recognize the principle of complementarity in s. 8.1. Again (see supra, footnotes 206 and 208), it should be noted that the complementarity principle does not mean complementarity in principle, as Sullivan states: "... Section 8.1 does not codify the principle of complementarity. The first thing to notice is that Section 8.1 does not state that provincial law applies unless it is expressly excluded by federal legislation" (id., p. 1040). On that point, the use of the expression "unless otherwise provided by law / sauf regle de droit s'y opposant" may have caused confusion, by appearing to make dissociation an exception. That expression, however, must not overshadow the crucial importance of the word "necessary" to indicate complementarity or dissociation. It may in fact not have been essential to add it, since it is self-evident that there would be no need to refer to suppletive provincial law if it were otherwise provided by law (on this point, see H. Molot, loc. cit., footnote 157, pp. 18-19). Since there seems to be duplication, it was syntactically juxtaposed with the expression "must" undoubtedly for greater certainty and to clearly indicate federal paramountcy (this being more apparent in the French). We therefore believe that this expression should not be assigned too much importance. If we rely on a literal reading (the expression is subsumed in the determination of whether it is "necessary" to refer to provincial law), this is merely an additional brake on complementarity and the expression should, as a rule, refer only to explicit legislative measures that run counter to it: H. Molot, id., p. 18; D. Duff, id., p. 118; Pierre Archambault, "Contract of Employment: Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should Replace It", in The Harmonization of Federal Legislation with the the Civil Law of the Province of Quebec and Canadian Bijuralism - Second Collection of Studies in Tax Law (2005), Department of Justice Canada, 2005, 2, pp. 2:16 to 2:18. There are nonetheless some who believe it is also possible to see this as a reference to common law sources: A. Grenon, loc. cit., footnote 165, p. 146 et seq. If that is the case, we think that these rules, which would originate in the case law and to which the expression would refer, should be limited to certain areas only (see supra, footnotes 122 and 124). They should also expressly sever the complementarity relation. We will return to this issue, infra, footnote 248 (accompanying text).
  • [210] See supra, footnotes 147 et seq.
  • [211] In particular, respect for the sovereignty of Parliament or the principle of strict interpretation of statute law. On this point, see R. Sullivan, op. cit., footnote 148, pp. 339 et seq.; P.-A. Cote, op. cit., footnote 33, pp. 45 et seq., 643 et seq. Concerning the subtleties that must be considered in the civil law context, see P.-A. Cote, id., pp. 34 et seq.
  • [212] The "complete code" theory is cited in constitutional law (see supra, footnote 101), but is also referred to in relation to the interpretation of statute law (see R. Sullivan, op. cit., footnote 148, p. 347). From that perspective, it is not surprising that it has been used to make federal legislation independent of provincial law. We will return to this in the next part, relating to the strategies for determining the unification of legislation (II.A.2).
  • [213] This is the primary position advanced by R. Sullivan, loc. cit., footnote 148, pp. 1041-1042. Sullivan bases her reasoning on the concept of "unenacted law" advanced by R. A. Macdonald, loc. cit., footnote 69, 579, pp. 587-589. On this point, see supra, footnotes 128 and 148. Note that the concept of "unenacted law" is referred to by Professor Macdonald using the term "common law" (in lower-case letters). In the next Section (see infra, footnote 233), we will return to this position and this concept, and examine the possibility that a judge could refer to this source of law as suppletive law, for purposes of uniformity.
  • [214] R. Sullivan, loc. cit., footnote 148, p. 1030. Concerning this distinction in the context of the relationship between statute law and common law, see R. Sullivan, op. cit., footnote 148, p. 341.
  • [215] On this point, note that s. 8.1 of the Interpretation Act states an obligation: "if . it is necessary, . reference must be made .". Canada's legal duality is characterized as a systemic rule in the introductory sentence of s. 8.1. That duality, which is inherent in the division of powers, is the umbrella under which interpretation techniques, properly so called, are applied.
  • [216] Image taken from the sonnet "Correspondances" by Charles Baudelaire, in Les fleurs du mal: "La Nature est un temple ou de vivants piliers / Laissent parfois sortir de confuses paroles". ["Nature is a temple in which living pillars / Sometimes give voice to confused words", William Aggeler, The Flowers of Evil, Fresno, CA, Academy Library Guild, 1954].
  • [217] We are stating this problem in the most general possible manner. For a narrower analysis of the issue raised by the plurality of formal sources of federal private law, see R. Sullivan, loc. cit., footnote 148, p. 1042: "The key issue raised by the harmonization project is whether judges can create unenacted law in the course of interpreting federal legislation". We will return to this more specific issue, infra, footnotes 231 to 233.
  • [218] The "official theory" of statutory interpretation is laid out by P.-A. Cote, op. cit., footnote 33, pp. 5 et seq. Professor Cote presents two alternative theories: the "suppletive role" of the interpreter and the role of [TRANSLATION] "creation subject to constraints" (p. 22 et seq.). Our analysis is essentially confined to the limits of the official theory and the possibilities of the theory of the suppletive role of the interpreter. Note that this theory is based on what P.-A. Cote calls a [TRANSLATION] "communications model" and also assumes that there is a meaning predetermined by Parliament. The creative power of the interpreter is therefore firmly circumscribed. Although the second theory does not eliminate the constraints imposed by the text, it assumes greater freedom on the part of the interpreter ([TRANSLATION] "The law does not determine the meaning, because the meaning is derived from the interpretation", id., p. 27). In our view, in the context of the interpretation of federal private law, that pragmatic conception of interpretation runs counter to an overly restrictive constitutional framework, created by the general jurisdiction of the provinces in relation to property and civil rights and the principle of complementarity implied by that jurisdiction. On the question of the conflict between an "originalist" and a "dynamic" conception of interpretation, see also R. N. Graham, op. cit., footnote 170, pp. 1 et seq.
  • [219] The plurality we demonstrated in the previous Section (I.A.).
  • [220] The distinction we make between an "uncertain" provision and an "incomplete" provision is deliberate and reflects the precise problem of sameness/unity versus otherness/complementarity. See R. Graham, op. cit., footnote 170, for the proposal of a general approach based on the concepts of "vagueness", "ambiguity", "subtext" and "analogy".
  • [221] This is the approach adopted by the Supreme Court in Schreiber v. Canada (Attorney General), supra, footnote 165. On this point, see also M. Bastarache, loc. cit., footnote 168, pp. 110-111.
  • [222] See, for example, Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), supra, footnote 165; Canada (A.G.) v. National Bank of Canada, supra, footnote 165.
  • [223] Here, we are referring to previous judicial decisions that might be consulted for informational purposes, as a guide. We discussed the argument that there is a federal common law that creates law in the course of the interpretation of federal legislation earlier (supra, footnote 124) and we will return to it later (infra, footnotes 231 to 233).
  • [224] In this study, we generally use the verb "suppleer" or the noun "supplétif" to refer to extrinsic complementary sources, for example in the sense in which it would be used in contract law in relation to state law. [In English, the term "suppletive law" has been used in equivalent expressions - Tr.] On this point, see N. Kasirer (ed.), op. cit., footnote 83, vo. "Suppletive law / Droit supplétif 1". However, it is possible to use the term in a broader sense, to cover any type of "creative" intervention in order to complete, but also clarify, the meaning of a provision. Concerning fluctuations and ambiguities in the use of this term or terms such as "lacunae", "creative role", "complementary role", etc., read and compare P.-A. Cote, op. cit., footnote 33, p. 22; Rene Dussault and Louis Borgeat, Traité de droit administratif, 2nd ed., vol. III, Quebec City, Presses de l'Université Laval, 1989, p. 30; Luc Huppe, Le régime juridique du pouvoir judiciaire, Montreal, Wilson & Lafleur, 2000, pp. 140 et seq. Although we use the term "suppletive" to refer primarily to the idea of something that is missing and something that is added, we acknowledge that it may refer simply, in its ordinary meaning, to remedying a flaw of some sort (see Le Petit Robert, under "suppleer" [make up for, compensate - Tr.]).
  • [225] We will return, in the next part, to the arguments based on the "ordinary meaning" of the text, or on constitutional theories such as the occupied field doctrine or the interjurisdictional immunity doctrine. While those arguments are not necessarily based on vagueness or ambiguity in the text, they fall entirely within the resources of the legislation that can be used to establish its sameness.
  • [226] The fear of subjectivity in interpretation does seem to be most justified in relation to the limits on judicial power: see P.A. Cote, op. cit., footnote 33, pp. 10 and 12-13; L. Huppe, op. cit., footnote 224, p. 141.
  • [227] Earlier, we noted several cases of references, in Section I.A, footnote 140, for example, the definition of "liability" in the Crown Liability and Proceedings Act, supra, footnote 140, s. 2; the definition of "immovable" in the Federal Real Property and Federal Immovables Act, supra, footnote 140, s. 2; the definition of "secured creditor" in the Bankruptcy and Insolvency Act, s. 2. We might also cite the controversial case of maritime law. On that point, see the definition of "Canadian maritime law" in the Federal Courts Act, R.S.C. 1985, c. F-7, s. 2, and the interpretation of that definition in ITO - International Terminal Operators v. Miida Electronics, supra, footnote 69.
  • [228] See the preceding Section (I.A.); see, in particular, supra, footnote 124.
  • [229] See supra, footnote 122. On the question of aboriginal law, see the following series of decisions: Roberts v. Canada, supra, footnote 122; Delgamuukw v. British Colombia, supra, footnote 122; St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 678; and Osoyoos Indian Band v. Oliver, supra, footnote 122. Maritime law could also be considered to be an exception (see Part II, Section B.3), as could international law. In the latter case, having regard to tax treaties in particular, see André Ouellette, "Bijuralism and Taxation: International Aspects" (2003), 24 R.P.F.S. 1051 (this paper has been published on the Internet: http://www.bijurilex.gc.ca). The following decisions are cited by Mr. Ouellette on the question of the relationship between domestic law and international law in respect of interpretation: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Wolf v. Canada, [2002] 4 F.C. 396.
  • [230] We have taken this distinction between implicit and presumed intention from Elmer Driedger; it is cited in R. Sullivan, op. cit., footnote 148, pp. 2 and 361.
  • [231] The proposition is stated by R. Sullivan, loc. cit., footnote 148, p. 1042. Cf. L. Lebel and P.-L. Le Saunier, loc. cit., footnote 124, p. 218. Earlier, we examined the possibility of conceiving of a federal common law in abstract terms, or as a background canvas. In our view, that argument has no basis and is of no practical utility, in terms of the formal sources of federal private law: see supra, footnote 128. Concerning the relationship between statute law and general law, or the monosystemic vision that the argument assumes, see supra, footnote 213.
  • [232] Unenacted law has been advanced as derivative suppletive law as opposed to provincial suppletive law applied under the complementarity principle: see R. Sullivan, loc. cit., footnote 148, pp. 1042 et seq. That proposition distinguishes between "derivative bijuralism" and "suppletive bijuralism", the first seen as the product of the convergence of the private law legal traditions in the federal legal system (see supra, footnote 148). That convergence (or "dialogue") of traditions has been the subject of comment by other authors and is an undeniable phenomenon that, in our view, is desirable in philosophical terms (see supra, footnotes 131 to 133). However, convergence relates, in the background, to the traditions themselves, whence the use of the word "bijuralism" to describe it, and does not necessarily involve the application of federal legislation or the determination of its suppletive sources (bijuralism is also, and perhaps more, present at the provincial level in Quebec: see, for example, Prud'homme v. Prud'homme, supra, footnote 79; see L. Perret, loc. cit., footnote 47). The phenomenon exists at a different level, and is essentially a question of comparative law. The concept of bijuralism transcends the complementarity principle in relation to legislation, and in the federal context the expression "legislative bijuralism" is used by extrapolation to refer to the two main legal traditions in Canada. Complementarity is essentially a concept that relates to the application of legislation, and thus to the positive law itself (note the use of the expression "in force" in s. 8.1 of the Interpretation Act). From that perspective, we must consider there are 10 (or perhaps 13) suppletive legal systems in the Canadian federation, and not merely two, as the concept of bijuralism implies. We must also consider that the application of the provincial suppletive law is not itself a "comparative law exercise" or an effort to achieve a "uniform result" (to quote Decary J.A. in 9041-6868 Quebec Inc. v. Canada (M.N.R.), supra, footnote 165, para. 6). Considering the foregoing, characterizing the complementarity principle as a segregationist approach seems to us to be inaccurate, and perhaps simply impertinent ("equal-but-separate": R. Sullivan, id., pp. 1000 and 1025).
  • [233] In order to portray "unenacted law" as a derivative reference law applicable to legislation as suppletive law, in the place of the various bodies of provincial law, Professor Sullivan (loc. cit., footnote 148, p. 1042) relies on a classification proposed by Professor Macdonald (loc. cit., footnote 69, p. 587). On this point, we would note what seems to us to be a misapprehension. Professor Macdonald does refer to unenacted law ("unenacted legal rules discovered and applied by courts of general jurisdiction", p. 588), as opposed to statute law ("legal rules enacted by Parliament or its delegates", id.). In his view, the unenacted law constitutes "common law" or, more precisely, "unenacted common law". He distinguishes that common law from other meanings of the term: (i) the Common Law, the British legal tradition originating in the Middle Ages; (ii) the law that came out of the royal courts or Courts of Common Law, as opposed to the law that came out of the other courts, such as the Court of Chancellery; and (iii) the fundamental general private law considered as the jus commune. In our view, although these distinctions are very deserving of consideration, they cannot be used to prove the existence of a form of suppletive federal common law deriving from the interpretation of federal private law legislation. First, and this bears repeating, the unenacted law to which Professor Sullivan refers is considered, in Professor Macdonald's classification, to be common law. Professor Macdonald does not distinguish between unenacted law and common law. As well, the meaning refers first to the Common Law tradition ("refers to rules of both common law and Equity indifferently, as a way of distinguishing, in the Common law tradition..."). Second, this form of common law corresponds, in practical terms, to the law as discovered by the courts ("unenacted legal rules discovered... by courts"). Professor Macdonald concludes with silence regarding the close relationship between judge-made law and the Common Law tradition, but the two are historically two sides of the same coin. If the phenomenon exists in the civil law, it lies on the periphery of the codified form, and is ultimately only a residual category (general principles, etc.) that can be cited only generally. Third, it is the "courts of general and residual jurisdiction" that, in Professor Macdonald's view, discover this form of common law. Accordingly, it seems to us that Professor Sullivan errs when she says, first, that the federal courts have no jurisdiction to "create" common law in matters under federal jurisdiction, and second, that they may "create" unenacted law (that is, unenacted common law) in relation to legislation. She seems to want to distinguish things that, in our view, are part of the same phenomenon, and that moreover could not correspond to the jurisdiction of the federal courts: the common law rules discovered by the courts of general and residual jurisdiction. The passage in which this slippage is found reads as follows: "It is also clear that in the absence of federal legislation there is no jurisdiction in federal court judges to create common law in areas of federal jurisdiction. The key issue raised by the harmonization project is whether judges can create unenacted law in the course of interpreting federal legislation. In my view, the answer to the question must be yes". (id., p. 1042). In short, there is no hair that can be split in the fundamental concepts that would suggest, in formal terms, that a federal common law in relation to private law matters can be created, even where it is based on the legislation: the rules of reception and the Constitution of Canada do not permit it (see Section I.A); moreover, the Supreme Court has held that, except in certain areas, there is no federal body of common law co-extensive with Parliament's unexercised legislative jurisdiction (see supra, footnote 124), and this necessarily, in our view, covers common law that is formulated alongside its exercised jurisdiction. The cases decided in the course of interpreting federal legislation therefore cannot be considered to constitute an autonomous body of mixed federal law that can become "common law" and replace, by derivation, the provincial suppletive law. At the outside, it can serve as a guide and be of varying authority (as "case law") for the purpose of determining the meaning of a statute. On the question of the meaning of the terms "droit commun" and "jurisprudence", see N. Kasirer (ed.), op. cit., footnote 83.
  • [234] Reservations must be stated regarding the theory of the separation of powers between the legislative, executive and judicial branches of government in Canada, to the point that it has been said that such separation does not generally exist: P. W. Hogg, op. cit., footnote 42, para. 7.3(a). The expression, in this context, primarily refers to the relative separation between the legislative and judicial branches, which corresponds to the equally relative concepts of parliamentary sovereignty and judicial independence. On this point, see H. Brun and G. Tremblay, op. cit., footnote 82, pp. 755 et seq. For a critique of judicial power and judicial discretion since the advent of fundamental human rights, see Geneviève Tremblay, Les tribunaux et les questions politiques - Les limites de la justiciabilite, Montreal, Wilson & Lafleur, 1999, pp. 27 et seq., pp. 61 et seq.
  • [235] This rule derives from parliamentary sovereignty and means, in particular, that it is not the role of the courts to assess the wisdom or appropriateness of legislation. See P.W. Hogg, op. cit., footnote 42, para. 12.2(g); L. Huppe, op. cit., footnote 224, p. 71. As an illustration in tax law, see Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10. For an affirmation of the principle in a case reviewing the constitutionality of legislation under the Canadian Charter of Rights and Freedoms, see Vriend v. Alberta, [1998] 1 S.C.R. 493, para. 29 (reasons of Iacobucci J.) and, more recently, Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, paras. 85 and 184. On the question of the role of the courts in relation to the role of Parliament, see the remarks by McLachlin J. in Watkins v. Olafson, [1989] 2 S.C.R. 750: "Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform. Considerations such as these suggest that major revisions of the law are best left to the legislature." (Comment quoted in Ordon Estate v. Grail, [1998] 3 S.C.R. 437). See also the interesting remarks by the Chief Justice in a more recent address, as Chief Justice of the Supreme Court of Canada: "The aim of the legislative role of drafting, debating and passing law is to create the laws that will best serve the people, in the collective and negotiated wisdom of the elected legislators. The aim of the judicial role, by contrast, is to interpret the laws that our common law tradition and the legislators have put in place. This activity of interpretation breaks down into various sub-activities: assigning meaning where it is unclear; applying the law to complex fact situations; harmonizing laws that may appear to be at cross-purposes or yield different results when applied to the same situation; and finally, determining whether challenged laws are constitutional, that is, whether they fall within the powers of the legislature that passed them." (Remarks of the Rt. Hon. Beverley McLachlin, P.C., Chief Justice of Canada, "Judging, Politics, and Why they Must be Kept Separate", Luncheon Address to The Canadian Club of Toronto, June 17, 2003). See also, concerning the role of judges in dealing with provisions whose meaning is not clear, the remarks by Peter W. Hogg in the interview of Rothstein J. before a parliamentary committee: Judicial Interview Process - Opening remarks to Ad hoc Committee on Supreme Court Appointment, February 27, 2006 (http://justice.gc.ca/eng/dept-min/pub/scc-csc/sp-dis.html).
  • [236] While judges enjoy undisputed discretion (see P.W. Hogg, op. cit., footnote 42, para. 12.2(g)), they exercise their role, and that discretion, within the confines of the legislation, and seek to discover and give effect to the will of the legislature (see H. Brun, op. cit., footnote 82, p. 759). Those constraints will be particularly stringent where the text appears to be clear: R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624. The judge therefore [TRANSLATION] "has creative power and takes part in the legislature's work" only within the limits established by the legislation: R. Dussault and L. Borgeat, op. cit., note 224, p. 30. See also L. Huppe, op. cit., footnote 224, p. 141. On the subject of interpretative sources, see our discussion supra, footnotes 220 et seq. Note former article 11 of the Civil Code of Lower Canada, which provided that a judge could not refuse to adjudicate on the pretext of the silence of the law.
  • [237] L. Huppe, op. cit., footnote 224, p. 72: [TRANSLATION] "Although the court undeniably plays a creative role in interpreting and applying the law, it may not, even in certain areas such as tax law, make up for silence in the statutory provisions". The author cites Canderel Ltd. v. Canada, [1998] 1 S.C.R. 147 (see paras. 40 and 41 in particular). See also, for example, Friesen v. Canada, [1995] 3 S.C.R. 103: "To place such a judicial limit on the clear and unambiguous wording of the statute is a usurpation of the legislative function of Parliament"; Manrell v. R., [2003] 3 C.T.C. 50 (F.C.A.): "This case presents a strong temptation to legislate in the guise of statutory interpretation". See also this recent decision, and in particular the reasons of Abella J.: A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42, para. 58. See also the following decision of the Quebec Court of Appeal in which the question of a legislative vacuum was cleverly resolved without applying the concept of a complete code: Canadian National Railway v. Sumitomo Marine & Fire Insurance Co. (July 10, 2007), Montreal 500-09-015114-044 (C.A.). For a more detailed analysis of the question in administrative labour law, see Pointe-Claire (City) v. Quebec (Tribunal du travail), [1997] 1 S.C.R. 1015, in particular at para. 63. The approach taken by the Supreme Court is commented on in R. Sullivan, op. cit., footnote 148, pp. 136 et seq. On the question of the various implications in civil law, see P.-A. Cote, op. cit., footnote 33, p. 512.
  • [238] These grey areas are in fact reflected in the shifting terminology to describe such gaps. Ultimately, all available words have been used for that purpose: "silences", "lacunae", "deficiencies", "voids", "gaps", "incomplete". Compare, for example, the words "silences" [silences] and "lacunes" [gaps] and the different analysis each involves, in L. Huppe, op. cit., footnote 224 at pp. 72 and 141. J.-M. Brisson and A. Morel, loc. cit., footnote 90, do not make that distinction in relation to the complementarity of provincial private law. They use, without distinction, the terms "incomplets" [incomplete] (p. 307) or "incompletude" [incompleteness] (p. 324), "fait defaut," [falls short] (p. 309), "silences" [is silent] (pp. 309, 324), "lacunaire" [incomplete] (p. 323, 324) or "lacunes" [deficiencies] (p. 324), "omission" [omission] (p. 324).
  • [239] Ruth Sullivan, op. cit., footnote 148, p. 136. L. Huppe, op. cit., footnote 224, p. 141 and P.-A. Cote, op. cit., footnote 33, p. 505 also acknowledge the creative power of the courts in respect of deficiencies.
  • [240] According to L. Huppe, op. cit., footnote 224, p. 23: [TRANSLATION] "... the creation of the common law is a function of the inherent jurisdiction of the courts ... ." For an analysis of "inherent jurisdiction" in relation to the specific case of DIP financing and the creation of judicial suretyships in a context where the civil law applies as suppletive law, see Antoine Leduc, "Les limites de la 'juridiction inherente' du tribunal et le cas du financement debiteur - exploitant ('DIP Financing') en droit civil quebecois" (2005), 39 R.J.T. 551.
  • [241] J.-M. Brisson and A. Morel, loc. cit., footnote 90, use this word in their key passage to describe the various cases of the implicit dependency of federal legislation: "Whenever a federal statutory provision uses a private law concept without defining it or otherwise assigning some specific meaning to it, and whenever a statute falls short of comprehensively governing a question of private law or lacks a formal incorporating provision, the omission must be remedied by referring to one of the two legal systems in force." (p. 309). The word "omission" ["silence" in the French version] is very significant in a context where the federal legislation is to be harmonized with provincial private law. For an analysis that makes the analogy between the concept of harmonization and music, and a critique of that concept, which is regarded as useless and redundant in the legal context, see Martin Boodman, "The Myth of Harmonization of Law", in Contemporary Law- Canadian Reports to the 1990 International Congress of Comparative Law, Montreal 1990, Montreal, Éditions Yvon Blais / Institute of Comparative Law, McGill University, 1992, p. 126. On this point, note that federal law harmonization legislation involves ensuring that the legislation is "in keeping with" the common law and civil law traditions and that it "takes into account" those traditions in "harmonious interaction" (preamble to Harmonization Act, No. 1, supra, footnote 106). What this is, then, is harmonization between federal law and the traditions, and not between the traditions themselves. In a way, what we are seeing here is the neutral concept of harmonization referred to by Martin Boodman (we might say "Act for the articulation ." ) and we are technically leaving the world of comparative law. Concerning legislative bijuralism and comparative law, see supra, footnote 232.
  • [242] Section 12 of the Interpretation Act provides: "Every enactment is deemed remedial .". Quebec's Interpretation Act, R.S.Q., c. I-16. is even more specific regarding the power of the courts to supplement legislation: "41.2. A judge cannot refuse to adjudicate under pretext of the silence, obscurity or insufficiency of the law". (An identical provision appeared in art. 11 of the Civil Code of Lower Canada). On the question of the inherent power of the judicial branch, generally, see L. Huppe, op. cit., footnote 224, pp. 19 et seq.
  • [243] R. Sullivan, loc. cit., footnote 148, p. 1042, also acknowledges this, to a certain extent: "It is also clear that in the absence of federal legislation there is no jurisdiction in federal court judges to create common law in areas of federal jurisdiction." We concluded earlier that under the Constitution there can be no federal common law: see supra, Section I.A., footnote 124; see also supra, footnotes 231 to 233, concerning the argument regarding reference to unenacted law.
  • [244] The contrary opinion is expressed regarding the law in general and criminal law in particular (referring to, inter alia, presumptions of intent) by André Jodouin, "La legitimite des sources du droit penal (reflexions d'un agnostique sur les certitudes fondamentales du droit repressif)", in Ejan Mackaay (ed.), Certainty and the Law - Les certitudes du droit, Montreal, Éditions Thémis, 2004, 117, pp. 135 et seq.
  • [245] See, in particular, the discussion concerning the theory of vagueness in R. v. Nova Scotia Pharmaceutical Society, supra, footnote 33.
  • [246] As Aristotle said, nature abhors a vacuum. When that maxim is transposed to the law, it illustrates the extent to which the law itself is also subject to the fluidity of meaning. Given a legislative void that the interpretive sources cannot fill, the meaning of a provision will be provided by provincial law. The entire question therefore depends on how the boundaries are drawn - where the dykes are erected - between any of the suppletive sources of law.
  • [247] See supra, footnotes 209, 207 and 215, concerning, respectively, the word "necessary" in Section 8.1 of the Interpretation Act; the step at which the distinction between private law and public law must be made; and the use of "must" in that section. Note that the "obligation" to refer to provincial law in no way suggests, as stated by R. Sullivan, loc. cit., footnote 148, p. 1041, that provincial law is the only valid context for interpreting federal private law legislation. That obligation is based, first, on constitutional premises, and second, on a necessity arising from the text, which is in fact clearly acknowledged by D. Duff, loc. cit., footnote 209, p. 116 whom Sullivan wrongly criticizes regarding the idea of automatic complementarity. We would note, once again, that the complementarity principle does not mean complementarity in principle, and that the judge has latitude for interpretation in dealing with a provision whose private law content is uncertain (see supra, footnote 206). The term "necessary" must be understood as meaning what it says, that is, what is required.
  • [248] supra, footnote 209.
  • [249] P.-A. Cote, op. cit., footnote 33, p. 560 describes presumptions of intent as follows: [TRANSLATION] "They express policies followed by the courts where they are required to make up for gaps in legislation in order to apply it." Logically, within the limits imposed by the Constitution, such policies, applied in the event of gaps, may be precluded by an express rule.
  • [250] Those cases would be limited to certain areas, for example, in the case of the Crown or aboriginal land rights: see supra, footnote 124.
  • [251] Harmonization Act, No. 1, supra, footnote 106, is effectively a clarification by Parliament regarding the supplementary sources of federal legislation. On that point, see D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 138, paras. 34 and 64, and the commentary by P. Denault, loc. cit., footnote 138.
  • [252] Section 94 of the Constitution Act, 1867 is also very clear in respect of the ways of achieving uniformity in private law in Canada and in the provinces other than Quebec.
  • [253] In formal terms, derivative bijuralism is conceivable only upstream from legislation, when it originates. The rest is merely a comparative law matter, which can, however, be very useful when it comes to understanding the foundation of legislation. See, for example, D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 138, para. 55 ("Few commentators have shown an interest in the effects of subrogation in bankruptcy matters, and the principles of Canadian bijuralism do not permit the importation of common law rules. The commentaries of authors from outside Quebec are nonetheless of interest for the purpose of reviewing the principles specific to the BIA ... ."). Note the following conclusions by L. Lebel and P.-L. Le Saunier, loc. cit., footnote 124, p. 238: [TRANSLATION] "The dialogue between the two traditions allows for mutual borrowing of legal solutions in isolated instances or for persuasive references that are more in the nature of a comparative law exercise. ... In this context, it seems difficult to conclude that the two traditions have been harmonized. Adapting and reconciling the traditions is in fact a matter for legislative initiative." On the question of convergence of the legal systems and derivative bijuralism, see supra, footnotes 131 to 133 and footnote 232.
  • [254] A thorough critique would assume specialized knowledge of all problems examined by the courts in the decisions we have identified. Because the primary purpose of our study is to identify the main procedures for unification, our examination of the substantive law problems themselves is presented somewhat transversally. An analysis of unification procedures in the context of an in-depth study of those problems would be desirable, but it would not correspond with the purpose of this study, and would considerably exceed its scope.
  • [255] The documents we identified are listed separately in the Appendix set out at the end of this paper. Note that the items from the doctrine are quoted only occasionally, where they provide useful information about the strategies used for unifying federal private law. Note also that they relate primarily to bankruptcy law and tax law, because these are the two areas that have been considered most extensively to date in the work done to harmonize federal law with Quebec's civil law. We think these two areas are sufficiently fertile in terms of the interaction between federal legislation and private law to provide a sample of significant unification procedures. Note that it would be worthwhile to do the same thing for commercial law, in relation to documents published after this study was prepared, in L'harmonisation de la Loi canadienne sur les societes par actions avec le droit civil quebecois - Proposition de revision (2008), 42 R.J.T. 1-309.
  • [256] Respectively: S.C. 2001, c. 4; R.S.C. 1985, c. I-21. The list of decisions is published by the Department of Justice Canada and made available to the public at the Canadian Legislative Bijuralism Site: http://www.bijurilex.gc.ca. Document consulted last updated: February 2008.
  • [257] For a critical analysis of the "official theory" of interpretation, which asserts that meaning is predetermined in enactments, see Pierre-André Côté, Interpretation des lois, 3rd ed., Montréal, Éditions Thémis, 1999, pp. 6 et seq. Note that Professor Cote does not rule out the possibility of there being "contrainte" on the meaning of a text at the time of its conception: id., pp. 17 and 25.
  • [258] [2000] 1 S.C.R. 915, para. 51.
  • [259] J.M. Kernochan, "Statutory Interpretation: An Outline of Method" (1976), Dalhousie L. J. 333, at p. 348. Professor Kernochan says, regarding what would be considered extrinsic to an enactment: "These circles embrace also the preenactment history of legislation and other law on the subject, with the light this may shed on the evil to be remedied. They encompass relevant surrounding legislation and caselaw. Even postenactment developments may have a bearing."
  • [260] Section I.B.1.(b).
  • [261] Plain meaning presumes that a provision must be understood as having the meaning the general public would understand: P.-A. Cote, op. cit., footnote 257, p. 330. Professor Cote also analyzes the difficulties associated with using dictionaries of ordinary language. For a useful analysis of the principles of interpretation relating to plain meaning and technical meaning, and in particular the presumption of plain meaning as opposed to technical meaning, see Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Toronto, Butterworths, 2002, chaps. 1 and 2. For the perspective of a jurilinguist on the relationship between legal vocabulary and ordinary language and cases where words are characterized by [TRANSLATION] "double belonging" and "external ambiguity", see Gérard CORNU, Linguistique juridique, 3rd ed., Paris, Montchrestien, 2005, pp. 62 et seq. Regarding the conception and use of specialized civil law or common law dictionaries, see Mathieu Devinat, "Reflexions autour des dictionnaires de droit civil", in Jean-Claude Gemar and Nicholas Kasirer (eds.), Jurilinguistics: Between Law and Language / Jurilinguistique: entre langues et droits, Montréal, Éditions Thémis / Paris, éditions juridiques Bruylant, 2003, p. 321.
  • [262] See the remarks of L'Heureux-Dubé J. in 2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool), [1996] 3 S.C.R. 919, para. 177. The "literal" approach has traditionally prevailed in tax law, essentially for reasons of stability in a context that is regarded as potentially arbitrary: see R. Sullivan, op. cit., footnote 261, pp. 441 et seq. The contextual approach, that is, the "modern" approach formulated by E. Driedger (see the preceding part, Section I.B.1.(a)), has moderated the literal interpretation rule in tax law, in Stubart Investments Ltd. v. R., [1984] 1 S.C.R. 536. The Supreme Court summarized the new approach in Quebec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3. Note, however, that the literal interpretation rule continues to take precedence where the meaning of a provision is clear: see Canada v. Antosko, [1994] 2 S.C.R. 312; Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622.
  • [263] R.S.C. 1985, c. 1 (5th supp.).
  • [264] The leading decision on this question is Construction Berou Inc. v. Canada (1999), 99 D.T.C. 5841 (F.C.A.), followed in Hewlett Packard (Canada) Ltd. v. R., (2004) FCA 240 (F.C.A.). Construction Berou dealt with the concepts of acquisition and disposition in the context of a leasing contract. Letourneau J.A. said that a uniform interpretation "has the merit of recognizing . a business practice that has no boundaries and of avoiding the danger of becoming too embroiled in unnecessary, sectoral and above all sterile and inequitable legalism at a time when the trend in the civil law is to approximate more closely to the common law." Note that s. 248 of the Income Tax Act, which applied in that case, defines the concepts to which, in civil law, the beneficial ownership that is the subject of the disposition corresponds. As Noel J.A. (dissenting) observed, the case can be seen as part of the line of cases that had previously adopted the concept of disposition in the broad sense: Victory Hotels Ltd. v. Canada (M.N.R.), [1963] Ex. C.R. 123, 62 D.T.C. 1378 (Ex. Ct.); Canada (M.N.R.) v. Wardean Drilling Ltd., [1969] 2 Ex. C.R. 166, 69 D.T.C. 5164 (Ex. Ct.); R. v. Henuset Brothers Ltd. (No. 2), [1977] C.T.C. 228, 77 D.T.C. 5169 (F.C.); Robert Bedard Auto Ltée v. Canada (M.N.R.), [1985] 2 C.T.C. 2354, 85 D.T.C. 643 (T.C.C.); Olympia & York Developments Ltd. v. R., [1981] 1 F.C. 691 (F.C.). Construction Berou, like Biderman v. Canada (2000), DTC 6149 (F.C.A.) on the concept of transfer, were noted by Decary J.A. (St-Hilaire v. Canada (Attorney General), [2001] 4 F.C. 289 (F.C.A.), para. 50) as examples of uniform application of federal legislation.
  • [265] Canada (M.N.R.) v. Wardean Drilling Ltd., supra, footnote 264, defines the concept by referring to a two-part test, the second having been understood as the broad meaning in subsequent decisions: "In my opinion the proper test as to when property is acquired must relate to the title to the property in question or to the normal incidents of title, either actual or constructive, such as possession, use and risk." Note on this point that Noel J.A. (dissenting), in Construction Berou Inc. v. Canada, supra, footnote 264, was of the opinion that the decision in that case was not intended to preclude the applicable private law and merely confirmed the distinction in the common law between legal ownership and beneficial ownership.
  • [266] In Victory Hotels Ltd. v. Canada (M.N.R.), supra, footnote 264, the Court said, regarding the concept of acquisition: "The words 'disposed of' in Section 20 of the Income Tax Act are of the widest meaning and should, in my opinion, be given their widest ordinary or popular meaning ... ." The most important decision regarding the ordinary meaning of the term "to dispose" is undeniably R. v. Cie immobilière BCN, [1979] 1 S.C.R. 865. In that decision, the Supreme Court of Canada first ruled regarding transactions by which an owner went from being a lessee under an emphyteutic lease to being an owner upon acquiring the lessor's rights. The concept of disposition, understood in the broad sense of "to destroy, to put an end to, to do away with" could, in the opinion of the Court, cover the extinction of rights through merger of the capacities of lessee and lessor. The Court concluded that in the subsequent transaction, by which the owner transferred the land by emphyteutic lease with an obligation to demolish the building on it and rebuild a new one, the demolished building had been the subject of a disposition by the owner, extending the concept to the very broad meaning of "to put or get anything off one's hands, do away with, demolish", in particular.
  • [267] supra, footnote 266. The Supreme Court referred to the Oxford English Dictionary. Somewhat confusingly, however, undoubtedly because this was a case from Quebec, the Supreme Court also referred, in reference to the French term "dispose", to the jus abutendi in civil law as defined in the work by Pierre-Basile Mignault.
  • [268] In Olympia & York Developments Ltd. v. R., supra, footnote 264, the Federal Court was unequivocal: "Since there is no special definition of the word "sale" or any special meaning attached to it in the Income Tax Act, one must consider that word in the light of the law of the Province of Quebec . ." To characterize the transaction in issue in that case, however, the Court referred to the "widest meaning" of the concept of disposition. See Robert Bedard Auto Ltée v. Canada (M.N.R.), supra, footnote 264, and the decision of the Federal Court of Appeal in Construction Berou Inc. v. Canada, supra, footnote 264. In that case, however, a degree of confusion is apparent in the reasons of the majority on the use of the concepts of sale and disposition. Noel J.A., dissenting, avoided that confusion by being more careful to recognize the complementarity with provincial law. He noted the influence of the common law on the broad interpretation of the concept of disposition in the decisions following on Wardean Drilling, supra, footnote 264, and was of the view that Olympia & York had been disregarded in cases coming out of Quebec. See also C.R.I. Environment Inc. v. The Queen, 2007 TCC 206.
  • [269] Will-Kare Paving & Contracting Ltd. v. Canada, supra, footnote 258. See Hewlett Packard (Canada) Ltd. v. R., supra, footnote 264, in which Noel J.A., while not disagreeing with the majority decision regarding the broad concept of disposition in Construction Berou Inc. v. Canada, supra, footnote 264, drew a parallel between the concept of a sale "as it is known to law" and the concept of a sale as described by Parliament in the Act. For that purpose, he relied on Victory Hotels Ltd. v. Canada (M.N.R.), supra, footnote 264, which held that Parliament had retained a narrow conception in relation to the concept of a sale.
  • [270] supra, footnote 258.
  • [271] R. Sullivan, op. cit., footnote 261, pp. 21 and 39, does not treat ordinary meaning as if it were the same as literal meaning, or even dictionary meaning. However, she distinguishes it from technical meaning, and is careful to address the risk of confusion.
  • [272] Concerning the conflict between plain meaning and context in the process of interpretation, see the remarks by L'Heureux-Dube J. in 2747-3174 Quebec Inc. v. Quebec (Régie des permis d'alcool),/, supra, footnote 262, paras. 152 et seq.
  • [273] Will-Kare Paving & Contracting Ltd. v. Canada, supra, footnote 258, para. 59; see also para. 48 [54 - Tr.]: "Where the meaning of the words used is plain and no ambiguity arises from context, then the words offer the best indicator of Parliament's intent"; and para. 55: "The strength of the 'plain meaning' rule is its recognition that it is the words of the provision themselves that constitute the vehicle used by Parliament to convey its intent to the people who are trying to assess their rights and tax liabilities under the Act". On that point, Binnie J. recalled the caution against "excessive resort to 'predetermined presumptions'." It will be noted that this analysis is consistent with our opinion that the complementarity principle is part of a contextual analysis, including reference to presumed intention: see Part I, footnotes 191 and 249.
  • [274] For a general discussion of cases of dissociation in tax law, including cases relating to the concept of disposition and the cases we will now be discussing, see, more specifically, David Duff, "The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation and Canadian Bijuralism" (2003), 51 Canadian Tax Journal 1, p. 47.
  • [275] Thomson v. Canada (M.N.R.), [1946] C.T.C. 51 (S.C.C.). The majority judges used ordinary dictionaries, in particular for the expression "ordinary residence". Note the dissenting reasons of Taschereau J., who focused more on the general context of the Act, and determined that the expression had a narrower technical meaning there. This decision was cited most recently in Quebec in a divorce case: Droit de la famille - 2617, [1997] R.J.Q. 1011 (S.C.). For another decision referring to the "ordinary meaning" of the word "residence" in relation to citizenship, see Blaha v. Canada (Minister of Citizenship & Immigration), [1971] F.C. 521.
  • [276] R. v. Littler, [1978] C.T.C. 235 (F.C.A.). In that case, the Federal Court of Appeal declined to apply the common meaning of the concept of a gift, or the broader meaning of "libéralité indirecte" in civil law, to recognize a sale at a price below the value of the property. The ordinary meaning, which corresponds to the intention of Parliament, was, in the view of the majority, the narrow legal meaning of the common law concept: "While, speaking loosely, one might say that a gift was made by way of sale at an undervaluation (the gift being the benefit so conferred), in my view, the word gift in a taxing statute must be taken as referring to what is known to the law as a gift, namely, the gratuitous transfer of property" (Jackett J.). In his reasons, Dubinsky J., dissenting, characterized the concept of a gift in the broad and ordinary sense, and in fact referred to an ordinary dictionary, as opposed to the "ordinary" common law meaning. In the taxing statute in issue, Parliament, in his view, meant the ordinary meaning of the word. It will be noted that this case raises the differences of opinion stated in Will-Kare Paving & Contracting Ltd. v. Canada, supra, footnote 258. As in that case, the narrower technical meaning was applied by the majority. The explanation may be the stronger technical connotation of the words "sale" and "gift". Nonetheless, it will be concluded that a misunderstanding of the complementarity principle led to the narrow common law meaning being held to apply uniformly in Canada in Littler. Concerning the meaning of the concept of a gift from this perspective, see also: Gervais v. Canada (M.N.R.), [1984] F.C.J. (Quicklaw) 1040 (F.C.T.D.); McBurney v. R., [1985] 2 C.T.C. 214 (F.C.A.); Tite v. Canada (M.N.R.), [1986] D.T.C. 2343 (T.C.C.).
  • [277] Manrell v. R., [2003] 3 C.T.C. 50 (F.C.A.). The Court held that the word "property" as defined in the Income Tax Act does not cover the right to receive payments as consideration for waiver of a right to compete. In the Court's opinion, the expression "right of any kind whatever" in the definition did not extend the ordinary meaning to cover that kind of right. The narrow common law meaning is the meaning that prevails in the legislation, regardless of the civil law, in respect of which the judge "assumes" that there is no distinction from the common law meaning (!). Here again, for a somewhat technical concept, we see the same reversal of perspective as in the majority reasons in Will-Kare Paving & Contracting Ltd. v. Canada, supra, footnote 258, and in R. v. Littler, supra, footnote 276.
  • [278] Royal Bank of Canada v. R. (1999), 99 G.T.C. 3061 (T.C.C.). In that decision, which is admittedly somewhat confused, the Court first held that because the terms "security / garantie" are not defined in the Excise Tax Act, the meaning must be determined from provincial law, in that case the civil law of Quebec. The Court then said, referring to the Petit Robert dictionary and then to specialized publications to define "garantie," and "sûreté", that Parliament intended to give the term "garantie" a "wide and large interpretation". The civil law and common law meanings would then be equivalent (equivalency between intrinsic and extrinsic .).
  • [279] Friesen v. Canada, [1995] 3 S.C.R. 103. Major J., for the majority, noted the importance of the ordinary meaning rule in tax law. The term "business" is interpreted as defined in the Income Tax Act, that is, as including an "adventure in the nature of trade" (paras. 13 et seq.). In the comments dealing with the method of valuing property in "inventory", Major J. added that the Act did not codify a common law rule and limit this method to "stock-in-traders". The broad definition of the term "business" given by Parliament does not include that limitation, and, to quote Major J.: "To place such a judicial limit on the clear and unambiguous wording of the statute is a usurpation of the legislative function of Parliament." In Villard v. Canada (M.N.R.), [1978] C.T.C. 2044 (T.R.B.), in which the Board had to determine whether an apartment building was to be considered to produce income from a business, it was held that the definition of the word "business" in the Act was not exhaustive and the term was defined by referring to its "ordinary meaning", taken from ordinary dictionaries, and then, for greater clarity, by referring to the common law. On this question, see also No. 249 v. Canada (M.N.R.) (1955), 55 D.T.C. 229 (T.A.B.).
  • [280] Commission de la Construction du Québec v. Canada (M.R.N.), 2006 FCA 49. The Federal Court of Appeal cited Insurance Corp. of British Columbia v. Canada (Minister of National Revenue), 2002 FCA 104 (F.C.A.). In that case, the trial judge had referred to treatises and dictionaries and concluded that the concept of a payment requires that there be an obligation. The Court of Appeal instead adopted a flexible interpretation of the concept of a payment, based on "the clear purpose of the section". However, in Commission de la Construction du Québec, the Court said, in obiter, that the technical concept of payment in the civil law, which presupposes an obligation, was respected in that case. Note that Section 8.1 of the Interpretation Act was argued in that case.
  • [281] Sylvie Vallée and Louis Bouchard d.b.a. Fiducie Sylvie Vallée v. The Queen, 2004 TCC 320. In that decision, the judge referred to the case law dealing with "ordinary sense", including Will-Kare Paving & Contracting Ltd. v. Canada, supra, footnote 258. The judge essentially relied on a uniform interpretation based, in particular, on the use of ordinary dictionaries. He concluded that "individual" refers to "human beings" and not "legal creations" in the Excise Tax Act, R.S.C. 1985, c. E-15. Note that the judge cited Section 8.2 of the Interpretation Act regarding, more specifically, the technical concept of a trust.
  • [282] Section 8.2 of the Interpretation Act may then be too rigid, in that it relies on the terminology of the text itself to establish a formal suppletive relationship with extrinsic sources. It may be argued, however, that the suppletive relationship can be made more flexible by relying on the words "dans un sens compatible" in that Section [the English version does not contain an equivalent phrase - Tr.]. Concerning the idea that the complementarity relationship is, in terminological terms, a matter of affiliation with provincial law, see Part I, footnote 200. For an example of interpretation of a taxing statute using its "natural meaning", to avoid applying provincial law to supplement it (taxation of income from the sale of alcohol, which was prohibited under provincial law), see, for example, Minister of Finance v. Smith, [1927] C.T.C. 251 (P.C.).
  • [283] Concerning the application of the ordinary meaning to the concept of a settlement (disposition) in the Bankruptcy and Insolvency Act, R.S.C. (1985), c. B-3, see Royal Bank of Canada v. North American Life Assurance Co., [1996] 1 S.C.R. 325 and the decisions cited in that case, in particular Re Bozanich, [1942] S.C.R. 130. Concerning the status of a trustee in bankruptcy and the use of the term "cessionnaire" [assignee] to refer to the trustee, see the reasons of Dorion J. in In re Civano Construction Inc.; Gingras v. Credit M.-G. Inc., [1962] C.S. 45; [1962] 3 C.B.R. (N.S.) 141 (S.C.); Dorion J. ultimately relies on the meaning determined from the Act (on this point, see Jacques Auger and Albert Bohémier, "Le statut du syndic" (2003), 37 R.J.T. 5, 103; Alain Vauclair and Martin-François Parent, "Harmonization of Federal Legislation with Quebec Civil Law: Some Examples from the Bankruptcy and Insolvency Act" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 8). Farm Credit Corporation v. Corriveau (1993), 20 C.B.R. (3d) 124 (Sask. Q.B.) uses a textual method to define the word "receiver / sequestre", the meaning of which, however, was found to be ambiguous using that method (traditional meaning and broad meaning were both possible). Note, in In re J.K.L. Ross (1931), 50 C.B.R. 107 (Que. C.A.), a bankruptcy case, regarding the expression "simple contract" in the Bills of Exchange Act, R.S.C. 1927, c. 16, s. 53, the following comments by Dorion J.A. (decision affirmed by the Supreme Court): [TRANSLATION] "While the words simple contrat in the French text do not have the technical meaning that they have in English law, they still have a meaning, and in the absence of any restriction, it must be the natural meaning." Compare the reasons of Bond J.A., dissenting, who assigned a technical meaning to the expression and interpreted it accordingly, based on the common law. The reasoning of Bond J.A. can also be seen in relation to documentary credit, where it is applied more forcefully: Les entreprises Loyola,/ Schmidt v. Cholette, [1976] C.S. 761. See also British Columbia v. Henfrey Samson Belair Ltd., [1989] 2 S.C.R. 24, where the majority interpreted the expression "property held . in trust" in the Bankruptcy and Insolvency Act according to its "ordinary meaning", that is, the technical meaning under the "general principles of trust law".
  • [284] Expression used in relation to the jurisdiction assigned to the court in s. 140 of the 1952 Bankruptcy Act in In re Duranceau: Perras v. Cie mutuelle d'immeubles Ltée (1954), 34 C.B.R. 198 (Que. S.C.), decision reversed on appeal on other grounds ([1956] Q.B. 80). The case is cited in Re Alliance Credit Corp.: Gagnon v. Montreal Trust Co., (1973) 17 C.B.R. 136 (Que. S.C.), according to which the term is not used in the sense of English law in s. 140. See, however, contra, In re 125258 Canada Inc. (Formerly Cast North America Ltd.): Bisseger v. Banque Royale du Canada, [1986] R.J.Q. 1666 (Que. S.C.); Meublerie André Viger Inc. v. Wener, [1992] R.J.Q. 1461 (Que. C.A.). Two other decisions have also rejected the interpretation of the term "equity" according to its ordinary meaning, but agreed to exercise equitable jurisdiction, in the sense of English law, to apply the "ex parte James" rule: Re Pogany, [1997] R.J.Q. 1693 (Que. S.C.); Re Maestro ltée (May 25, 2000), 500-11-011474-992 (S.C.), J.E. 2000-1323. Note also that s. 183 of the Bankruptcy and Insolvency Act, which confers that equitable jurisdiction, has been amended for harmonization and that term has been removed for Quebec (Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 33). For cases subsequent to that amendment, see Montreal Fast Print Ltd. v. édifice 9500 Inc. (June 16, 2003), Montreal 500-09-010582-013 (C.A.); Bedard (Faillite) v. Demers (June 8, 2005), Montreal 500-11-022202-044 (S.C.).
  • [285] See the previous part, Section I.B.1.(b).
  • [286] Here we are referring to the analysis by R. Sullivan, op. cit., footnote 261, pp. 339 et seq.: "Chapter 13 - Relation to Common Law". Note that the complete code theory has also been cited in relation to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11. On this point, see Symes v. Canada, [1993] 4 S.C.R. 695.
  • [287] Id., p. 339. Professor Sullivan cites the examples of the Bills of Exchange Act, the Labour Code and no-fault insurance legislation. She adds, later (p. 347): "the key feature of a code is that it is meant to offer an exhaustive account of the law; it occupies the field in effect, displacing existing common law and cutting off further common law evolution."
  • [288] Id., pp. 347-348. On this point, Professor Sullivan quotes Lord Hershell in Bank of England v. Vagliano Brothers, [1891] A.C. 107 (H.L.), who disposed of the issue as follows: "... the proper way to deal with such a statute as the Bills of Exchange Act, which was intended to be a code of the law relating to negotiable instruments ... is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law ...." Note that Professor Sullivan nonetheless acknowledges (p. 348) the possibility of a code incorporating common law terms and concepts, and that in interpreting those terms and concepts reference could be made to the common law itself. Concerning "codes" in the common law tradition, and the presumption that a code "replaces" the existing common law rules, unlike ordinary legislation, which is deemed not to amend the common law, see also Donald Poirier, Sources de la common law, vol. 2, Cowansville, Quebec, Éditions Yvon Blais, 1996, "Common Law en poche" collection, p. 65.
  • [289] supra, footnote 262, paras. 97 et seq.
  • [290] R.S.Q. c. C-12. To establish the methodology, L'Heureux-Dubé,/ J. essentially relied on Zaidan Group Ltd. v. London (City), [1991] 3 S.C.R. 593, and in particular on the decision of the Court of Appeal ((1990), 71 O.R. (2d) 65 (C.A.)). In other words, the applicable common law must be determined first, before examining the relationship with statutory law.
  • [291] supra, footnote 262, para. 101.
  • [292] In Régie des permis d'alcool, L'Heureux-Dubé J. did not decide the issue of whether there was a complete code, because she concluded that the Charter did not apply in that case. However, she said, in obiter, without further explanation: "I note on an incidental basis that the Charter is not a 'complete code that excludes or supplants the common law' in the area of administrative law."
  • [293] [1987] 2 S.C.R. 99.
  • [294] Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298.
  • [295] See also, in labour law, Panagopoulos v. Canada, [1990] F.C.J. (Quicklaw) 234 (F.C.T.D.), in which the Federal Court concluded that there was a complete code in the Public Service Staff Relations Act and rejected the possibility that a civil action in damages could be instituted.
  • [296] Gendron was cited in an interesting decision of the Supreme Court of British Columbia, Re Down, (2000) 189 D.L.R. (4th) 709 (B.C.S.C.). In that decision, the Court concluded that the Bankruptcy and Insolvency Act is a complete code ("comprehensive, exclusive code"), given the entire context of the Act ("the entire scheme"), its "express language" and the fact that the legislation did not provide that a penal provision in the Act would have civil consequences. The correct approach in that case is: "When the party's rights and remedies are governed by such a comprehensive code, the appropriate approach is one of normal statutory interpretation to elicit the intention of Parliament." See also R. v. Lewis (1997), 155 D.L.R. (4th) 442 (Ont. C.A.), a decision of the Ontario Court of Appeal, determining that the Canada Elections Act, R.S.C. (1985), c. E-2, is a complete code, in relation to provincial legislation, in respect of the persons authorized to act as auditors. In the opinion of the Court, the Act is a complete code: "... in this case Parliament has defined who may act as an auditor and in express terms set out the duties and responsibilities of the auditor for the purposes of the federal election. There is no room left for the operation of the provincial legislation ... ." See also Perron-Malenfant v. Malenfant (Trustee of), [1999] 3 S.C.R. 375, in which the Supreme Court did a detailed analysis of the text and context and determined that the provisions of the Civil Code of Lower Canada governing insurance constitute a complete code.
  • [297] See St-Hilaire, supra, footnote 264, para. 43. Note the interesting distinction made by the Quebec Court of Appeal in Canadian National Railway v. Sumitomo Marine & Fire Insurance Co. (July 10, 2007), Montreal 500-09-015114044 (C.A.), in which the Court also cited St-Hilaire on this point. The Court distinguished between cases in which the federal legislation in question applies to an [TRANSLATION] "undefined situation" (a legislative vacuum that justifies reference to provincial suppletive law) and cases where the legislation forms a "complete and autonomous whole" (no necessity to refer to the civil law). In that case, while the Court did not conclude that there was a complete code, it determined that there was no legislative vacuum in the legislation, that is, that it "contains all the elements necessary for resolving the dispute".
  • [298] Concerning the availability of common law remedies in overpayment cases, see Briere v. Canada, [1989] 3 F.C. 88 (F.C.A.); Consumers Glass Co. v. Canada, (1990) 107 N.R. 156 (F.C.A.); Forest Oil Corp. v. Canada, [1997] 1 F.C. 624 (F.C.T.D.); Michelin Tires v. Canada (M.N.R.) (1998), 99 G.T.C. 7015 (F.C.T.D.); Mathew & Co. Ltd. v. Canada (M.N.R.), [1997] T.C.C.E. 113 (T.C.C.E.); British Columbia Ferry Corp. v. Canada (M.N.R.), [2001] 4 F.C. 3 (F.C.A.). See also, on that point, although not in relation to federal legislation, Zaidan Group Ltd. v. London (City), supra, footnote 290. Concerning other tax law issues, for cases concluding that there was a complete code, see Quebec (Sous-ministre du revenu) v. Marcel Grand Cirque (1995), 107 F.T.R. 18 (F.C.T.D.); Marcoux v. Canada (A.G.), (2001) FCA 92 (F.C.A.), concluding that it could not be said that "Parliament was silent" and that the complementarity principle affirmed in St-Hilaire, supra, footnote 264, did not apply (while the Court of Appeal did not use the expression, it affirmed the decision of the trial judge, who had found that there was a "complete code"); Canada (A.G.) v. National Bank of Canada, (2004) FCA 92 (F.C.A.); Bleau v. The Queen, 2006 TCC 36. Note also Markevich v. Canada, [2003] 1 S.C.R. 94, clarifying that the Income Tax Act is not a complete code: "There is no authority to support the proposition that the ITA is a complete code that cannot be informed by laws of general application. The ITA does not operate in a legislative vacuum ..." (para. 14). The concept of "legislative vacuum" is cited by the Court to Will-Kare Paving, supra, footnote 258. On the application of the principle of complementarity where there is a legislative vacuum, see our remarks in the previous part, Section I.B.2.(b).
  • [299] R.S.C. 1985, v. B-3. Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453; Re Down, supra, footnote 296.
  • [300] R.S.C. (1985), c. B-1. See Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; Saskatoon Boiler Manufacturing v. Industries F.P. Inc. (Trustee of) (1992), 6 C.B.R. (3d) 37 (Que. S.C.). Contra: Waldron v. Royal Bank, (1991) 4 C.B.R. (3d) 53 (B.C.C.A). Note in that last case (para. 58) that the Court of Appeal relied on the assertion that there was a federal common law in allowing the common law remedy, in addition to concluding that there was no complete code.
  • [301] Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, supra, footnote 294; Panagopoulos v. Canada, supra, footnote 295.
  • [302] R. v. Lewis, supra, footnote 296, concerning the Canada Elections Act and the persons authorized to act as auditors. Cf. Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113. That decision, which was in an immigration case (representation by non-lawyers), did not conclude that there was a complete code; it found that there was a conflict in operation based on the concept of conflict set out in Bank of Montreal v. Hall, supra, note 300.
  • [303] Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 CSC 24 (S.C.C.).
  • [304] As we noted earlier (supra, footnote 288), where there is a code, it must be presumed that the common law has been replaced.
  • [305] See Waldron v. Royal Bank, supra, footnote 300. Note in this case that the Court of Appeal relied on the assertion that there was a federal common law in allowing the common law remedy, in addition to concluding that there was no complete code.
  • [306] supra, Section I.A.
  • [307] supra, footnote 303.
  • [308] See, in particular, paras. 78 et seq. The Court relied on a purposive interpretation in concluding that the titleholders to aircraft are not covered by the definition of the word "owner" in the Act. On the question of the detention remedy granted to creditors, the appellant NAV Canada cited ss. 8.1 and 8.2 of the Interpretation Act. Binnie J. wrote that it is not "necessary" to resort to provincial law, given that the provisions examined "specifically state that the remedy is to be 'in addition to any other remedy', which includes remedies under provincial law." He added: "The Aeronautics Act, the Airports Act and CANSCA are federal statutes that create a unified aeronautics regime. Parliament endeavoured to create a comprehensive code applicable across the country and not to vary from one province to another. This uniformity is especially vital since aircraft are highly mobile and move easily across jurisdictions."
  • [309] See Quebec (Sous-ministre du revenu) v. Marcel Grand Cirque, supra, footnote 298. On a motion for revocation of judgment, the judge declined the jurisdiction of the Federal Court in respect of calculation of an assessment for the goods and services tax. He said that the Excise Tax Act, "just like the Income Tax Act", contains "a comprehensive code for tax collection under which, upon receipt of a notice of assessment, a taxpayer may file an objection notice and subsequently appeal before the Tax Court of Canada." We consider it dubious practice to rely on the doctrine of a complete code to determine a question of jurisdiction in such a general manner. In Markevich v. Canada, supra, footnote 298, the Supreme Court was careful to clarify the question (para. 14): "There is no authority to support the proposition that the ITA is a complete code that cannot be informed by laws of general application. The ITA does not operate in a legislative vacuum ...". See also A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2007 SCC 42. And see, as another example of a peremptory assertion, Mathew & Co. Ltd. v. Canada (M.N.R.), supra, footnote 298.
  • [310] That is the case, in particular, in cases where the issue is the availability of an equitable remedy based on unjust enrichment. See supra, footnote 298.
  • [311] For a good illustration of solid reasoning in a case of this nature, see Bank of Montreal v. Hall, supra, footnote 300.
  • [312] See, for example, the reasons of Denault J. in Marcouxv. Canada (A.G.), [2000] 4 C.T.C. 143 (F.C.T.D.). The reasoning used to reject a rule against seizure in provincial law is not entirely watertight, and relies on a presumption of uniformity in the operation of the Income Tax Act. Note that the Federal Court of Appeal (see supra, footnote 298) affirmed the decision but without referring to the complete code doctrine. Regarding presumptions in tax law, in that case in relation to municipal taxation, see Quebec (Communaute urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3.
  • [313] Decisions referred to supra, footnotes 299 and 300.
  • [314] On this point, see our discussion of the division of powers in the previous part (Section I.A.2), in particular the paper by Professor Jean Leclair that provided the inspiration for that constitutional analysis (Part I, footnote 87).
  • [315] The key to the reasoning of Gonthier J. in Husky Oil Operations Ltd. v. Minister of National Revenue, supra, footnote 299, is in this somewhat surprising statement about a preference based on exclusivity, at para. 81: "." (Emphasis added) See also the summary of his analysis, at para. 87. For a different approach to similar issues, see D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), [2005] 2 S.C.R. 564. In Bank of Montreal v. Hall, supra, footnote 300, the demonstration done by La Forest J. is persuasive, in that his conclusion is that the bank security interest and the procedure for realizing it are integral parts of the legislation. However, the conflict was still reduced to essentially purpose considerations: "The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible." He concluded that there was a "complete code": "There is no room left for the operation of the provincial legislation ... ." See also Rothmans, Benson & Hedges v. Saskatchewan, [2005] 1 S.C.R. 188.
  • [316] Husky Oil Operations Ltd. v. Minister of National Revenue, supra, footnote 299, para. 122. The issue in that case was whether a provincial statute had to be deemed invalid or declared inoperative because it altered the order of priorities established in the Bankruptcy and Insolvency Act.
  • [317] See R. Sullivan, op. cit., footnote 261, p. 340: "It follows from the principle of legislative sovereignty that validly enacted legislation is paramount over the common law"; p. 348: "In interpreting a code, concern for the internal coherence of the statute takes precedence over the presumption against changing the common law."
  • [318] Concerning the sui generis nature of Indian title, see Roberts v. Canada, [1989] 1 S.C.R. 322; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. Concerning the land rights of the First Nations in reserve lands, see St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657 and Osoyoos Indian Band v. Oliver, [2001] 3 S.C.R. 746. Note also the following decision concerning s. 50 of the Indian Act, R.S.C. (1985), c. I-5: Songhees First Nation v. Canada (A.G.), [2003] B.C.J. 631 (B.C.C.A.).
  • [319] Lefaivre et associes v. Cote, [1976] C.A. 691; In re Ireland: Gingras v. Provincial Bank of Canada, (1962) 5 C.B.R. (N.S.) 91. These cases were decided before the coming into force of the Civil Code of Quebec in 1994 (S.Q. 1991, c. 64). Note that under the Civil Code, a trustee does not have a beneficial interest in the trust patrimony: art. 1261 C.C.Q. On this point, see Jacques Auger and Albert Bohemier, "Le statut du syndic" (2003), 37 R.J.T. 5.
  • [320] Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411. The Supreme Court decided to change this form of charge in relation to future assets: "this form of security interest challenges our traditional conception of a fixed charge; to the same extent, in my opinion, our conception of this form of charge must change to meet the modern realities of commercial law, and in particular the legislative provisions which have been brought to bear in this appeal" (reasons of Gonthier J., concurring with the majority on this point). Following on that decision, see also First Vancouver Finance v. M.N.R., [2002] 2 S.C.R. 720, para. 34; Canada (A.G.) v. National Bank of Canada, supra, footnote 298.
  • [321] In re Civano Construction Inc.; Gingras, v. Credit M.-G. Inc., supra, footnote 283. In that case, which related to an assignment of debts by a debtor before bankruptcy, the Quebec Superior Court concluded that the trustee was not [TRANSLATION] "the bankrupt's successor, it was an assignee", and that its rights "are not limited by the rights the bankrupt had, and do not merge with those rights . ." In the opinion of the Court, the Bankruptcy Act [TRANSLATION] "created . a new method of transferring property and includes debts". In addition, "the trustee is automatically vested with possession of all the property, as transferee . ." See also the dissenting reasons of Chouinard J.A. in Banque de Nouvelle-Ecosse v. Perras, Fafard, Gagnon Inc., [1985] C.A. 21, in which he characterizes the trustee as the [TRANSLATION] "legal transferee of all rights in the bankrupt's assets and other rights given to the trustee by the Bankruptcy Act ... ." And see Canadian Middle East Consulting Co. (In re): Interpool Ltd. et Dionne, [1985] C.A. 126.
  • [322] Canassurance, Cie d'assurance-vie v. R., [1991] 2 C.T.C. 214, 48 F.T.R. 22 (F.C.T.D.). See the opposite approach in R. v. Lagueux & Frères Inc., [1974] 2 F.C. 97 (F.C.T.D.) in relation to the nature of a contract of sale or lease. Concerning the form and substance criterion, see the remarks by the Supreme Court in Quebec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, supra, footnote 312.
  • [323] Senecal v. R., [1984] 1 F.C. 169 (F.C.T.D.). In that case, the judge found that this was the actual intent of the provincial legislature, under the Civil Code.
  • [324] Knitrama Fabrics Ltd. v. K & A Textiles Inc., [1984] C.S. 1202.
  • [325] The expression "claim of the unpaid vendor" in the English version was held to be more restrictive and is associated with common law, under which the vendor has no right of dissolution, while the expression "creances d'un vendeur impayé" in the French version is associated with civil law, where a right of dissolution accompanies the vendor's claim. However, because the vendor has a guarantee that it can use to retroactively dissolve the sale in the event of default (in civil law), the bank cannot exercise the legal priority that applies to revendications (in common law).
  • [326] The decision has also been criticized because it presupposes a comparative approach to federal legislation: see Jean-Maurice Brisson and André Morel, "Federal Law and Civil Law: Complementarity, Dissociation" (1996), 75 Can. Bar Rev. 297, 313.
  • [327] [2002] 3 S.C.R. 269.
  • [328] R.S.C. 1985, c. S-18.
  • [329] The measure was enacted in Harmonization Act, No. 1, supra, footnote 284, s. 121. For critiques of Schreiber from different perspectives, see Aline Grenon, "The Interpretation of Bijural or Harmonized Federal Legislation: Schreiber v. Canada (A.G.)" (2005), 84 Can. Bar Rev. 132; Ruth Sullivan, "The Challenges of Interpreting Multilingual, Multijural Legislation" (2004), 29 Brook. J. Int'l. L. 985.
  • [330] Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Gordon v. Goertz, [1996] 2 S.C.R. 27: "The notion of custody under the Act essentially reflects the common law. ... From a comparative standpoint, it is interesting to note that custody as regards the right to choose the place of residence of a child is given a similar interpretation under the Civil Code of Quebec, under various international documents as well as in some other common law and civil law jurisdictions."
  • [331] Hamel v. Hamel, [1986] R.J.Q. 383 (C.A.). Mailhot J.A. cited, in particular, an article by Anne Michaud in which she wrote: [TRANSLATION] "In our opinion, when a federal statute mentions a legal concept that does not exist as such in Quebec law, it must be determined whether, by analogy, reference can be made to an equivalent fact situation." See also Cormier v. Tessier, [1989] R.J.Q. 1457 (C.A.); Chambre des notaires du Quebec v. Lesage, (June 9, 1992) Hull 550-05-000250-905 (S.C.), J.E. 92-1793; Barreau du Quebec v. Leblanc, (May 13, 1993) Montreal 500-05018548-923 (S.C.), J.E. 93-1106. Cf. Banque de Nouvelle-écosse v. Gauthier, (June 2, 1995) Montreal 500-05-006466-948 (S.C.), J.E. 95-1679, in which the common law meaning (the judge cited a British Columbia decision) clearly prevailed in respect of the same problem.
  • [332] Société en fiducie de la Banque de Hongkong v. Developpements sociaux du Sud-Ouest, [1996] R.D.I. 331 (S.C.).
  • [333] Construction Berou inc. v. Canada, supra, footnote 264. Desjardins J.A. wrote: "The federal Parliament accordingly devised, for tax purposes and for all of Canada, a common concept covering the ideas of 'disposition' ('disposition de biens') and 'beneficial ownership' ('propriete effective'), both in civil and common law . ." Note in that decision and in Hewlett Packard (Canada) Ltd. v. R., supra, footnote 264, the emphasis placed on the intention of Parliament or of the parties to counterbalance the influence of the common law. In Hewlett Packard, Noel J. said that there is "one basic rule that is common to both systems: ownership passes when the parties intend it to pass."
  • [334] Commission de la Construction du Quebec v. Canada (M.N.R.), supra, footnote 280. The Court adopted the interpretation that the concept of payment in that context does not require that there be an obligation. Note that s. 8.1 of the Interpretation Act was argued in that case.
  • [335] Droit de la famille 2617, supra, footnote 275. Note that the expression "résidence habituelle" [usual residence] was interpreted in that case in relation to the Rules of practice of the Superior Court of Quebec in family matters and not a federal statute, although the Divorce Act is also applicable and was cited in the decision.
  • [336] No. 249 v. Minister of National Revenue, supra, footnote 279. The member had nonetheless stated at the outset that the laws of the province of Quebec had to be applied. Consider, in particular, this passage: "As the leasing of real property does not come within any of the classes added by Section 127(1)(e) to the ordinary meaning of the word business, it must be concluded that if such leasing is not a business according to the criteria of the general law, neither is it a business under the Income Tax Act. On the other hand, if it became a business under the general law it would also be one for the purposes of the Income Tax Act." Cf. Royal Bank of Canada v. R., supra, footnote 278.
  • [337] In those cases, the levelling of sources come close to creating autonomous federal law the autonomy of the federal law. Concerning the effort to find equivalencies, see, for example, Wolf v. Canada, [2002] 4 F.C. 396 (F.C.A.); Poulin v. Canada (M.N.R.), (2003) FCA 50 (F.C.A.). Note the efforts made by the judges in those two decisions to reconcile the open and flexible test laid down in Wiebe Door Services Ltd. v. M.N.R.. (1986), 87 D.T.C. 5025 (F.C.A.) with the more rigid rules in civil law. In Wolf, Desjardins J.A. concluded, after referring to the pragmatic test developed in the case law, that the appellant "correctly claimed the status of contractor . under article 2098 of the Civil Code of Quebec". Decary J.A. reaffirmed the principle of complementarity and returned the control test to the centre of the analysis, but still made the test more flexible in order to take account of the "contractual reality of the parties". In Poulin, Letourneau J.A. stated that the Civil Code is the applicable law in this instance, but said that "this notion is not always conclusive in itself, notwithstanding the importance it must be given". He added: "It is necessary to examine the facts and the circumstances surrounding the provision of services: each case is sui generis." For an older decision of the Tax Review Board illustrating the more complete equivalency of civil law, common law or tax law sources, see Braive v. Canada (M.N.R.), [1981] C.T.C. 2790, 81 D.T.C. 748 (T.R.B.): "Those guides [determining when one is an employee or when one is self-employed] are expressed by doctrine and by numerous judgments in civil law, in common law and tax law. In fact, in all these fields, the guides are all the same. In each case, however, it is a question of facts. ...". We will return later, infra, footnote 355, to certain decisions that rely more strictly on the pragmatic, common law approach, as set out in Wiebe Door Services Ltd. Note that this approach was questioned in 9041-6868 Quebec Inc. v. Canada (M.N.R.), 2005 FCA 334. See also Dupuis v. Canada (Revenue Agency), (2006) FC 228, and numerous subsequent decisions of the Tax court of Canada in which more obvious reference was made to the complementarity principle; these include: Vaillancourt v. Canada (M.N.R.), 2005 TCC 328; 9079-6038 Quebec Inc. v. Canada (M.N.R.), 2005 TCC 743; Carreau v. Canada, 2006 TCC 20; Garneau v. Canada (M.N.R.), 2006 TCC 160; Rhéaume v. Canada (M.N.R.), 2007 TCC 591; 9020-8653 Quebec Inc. v. Canada (M.N.R.), 2007 TCC 604. Note, however, a contradictory opinion recently given by the Federal Court of Appeal (in Montreal) which again refers, as "guidelines", to the pragmatic approach: Combined Insurance Company of America v.Minister of National Revenue (M.N.R.) and Melanie Drapeau, 2007 FCA 60 (F.C.A.). That decision cites, inter alia, Royal Winnipeg Ballet v. Canada (M.N.R.), 2006 FCA 87 (F.C.A.). We would also note that the same discussion has taken place concerning the distinction between a contract of employment and a contract for services under the Employment Insurance Act or the Canada Labour Code: see, for example, Widrig v. Regroupement Mamit Innuat Inc., 2007 F.C. 1234.
  • [338] Dontigny v. R., [1974] 1 F.C. 418 (F.C.A.).
  • [339] Munro v. Common, (1992) 47 E.T.R. 5 (S.C.). The judge referred in particular to Tucker v. Royal Trust Co., [1982] 1 S.C.R. 250 concerning the sources applicable to trusts. He referred to the common law authorities but began his reasoning by stating: "In principle, the question should receive the same answer under the law of the province of Quebec". For a similar conclusion relating to the concept of "property" in the Income Tax Act, seer Manrell v. R., supra, footnote 277, in which the judge adopted the common law, "assuming" equivalence with civil law.
  • [340] The likening to common law, in part for reasons of national equity, is particularly evident in Rosenstone v. Canada (M.N.R.), [1971] Tax A.B.C. 1029 (T.R.B.). The right of emphyteusis is characterized in that case as "tenure of property" and even (referring to City of Quebec v. Lampson, (1918) 56 S.C.R. 2888) as "beneficial interest in the property". The Civil Code was cited in that case to understand the nature of emphyteusis and stress the fact that this concept involves alienation, noting the existence of a right of reversion: "In view of the foregoing comments, I see no difference between leasehold interests and emphyteusis. A leasehold interest can be nothing other than tenure of a property, piece of land or lot assigned by the owner for a specified time, in accordance with the Civil Code, for the making of improvements which will revert on expiration to the said owner." In Feigelson v. R., [1974] 2 F.C. 807 (F.C.A.), Hyde J.A. referred to a "common factor" between a lessee's and an emphyteutic lessee's rights: the existence of a "lease", to "bring the emphyteutic lease within the expression 'leasehold interest'" (emphasis added).
  • [341] In the Quebec Court of Appeal decision in Re Ross (1931), 12 C.B.R. 247, [1931] 2 D.L.R. 913, Dorion J.A. applied the technical meaning in English law to the words "simple contract" but gave the expression "simple contrat" in the French version its "natural meaning", a contract that requires not more than consent (does not require a notarized act). Accordingly, he stated: [TRANSLATION] "The drafters of the Bills of Exchange Act therefore found the ground prepared for expressing, in the same words in both versions, a rule common to all Provinces of the Dominion." The concept of "valuable consideration" was treated in Quebec in the same way as a "valid contract, the perfectly valid cause or consideration for which is the simple desire to benefit the donee." See, to the same effect but with greater emphasis on the application of civil law, the reasons of Bernier J.A., and, for reference to the English law exclusively, the reasons of Bond J.A.
  • [342] In a remarkable decision dealing with solidarity in respect of documentary credit, Entreprises Loyola Schmidt Ltee v. Chouette, [1976] C.S. 557, the Quebec Superior Court applied the sources of the English law in order to interpret the terms "jointly" and "jointly and severally" in the Bills of Exchange Act. The judge concluded that the terms [TRANSLATION] "retain the meaning they were given in England and continue to have in the provinces of Canada that are subject to the common law", but recognized that "joint liability" has effects "analogous to the primary consequences of solidary liability in our civil law". In Banque canadienne nationale v. Turcotte, [1942] B.R. 383 (C.A.), Bertrand J.A. stressed that the obligations of co-signers of a negotiable instrument in English common law are considered to be [TRANSLATION] "equivalent" to solidarity in civil law, although the terms in English law for the concept of solidarity "literally evoke, rather, the idea of joinder (joint liability) ... ." Note that the procedure was reversed in that case, with the civil law meaning predominating and not being contradicted by the applicable law under the Bills of Exchange Act.
  • [343] Bank of Nova Scotia v. Angelica-Whitewear, [1987] 1 S.C.R. 59. In that case the Court seems to have relied primarily on the sui generis nature of the obligation of the issuing bank to the beneficiary under an irrevocable letter of credit. The Court also cited reasons of uniformity in relation to international trade.
  • [344] The concept is ascribed to the common law because of the terminology ("settlement"), but is understood in Quebec as referring to "dispositions à titre gratuit" (gratuitous dispositions). See In re Beaulieu, (1942) 24 C.B.R. 197 (C.A.); In re évaporateur Portneuf Inc., [1962] B.R. 218 (C.A.); In re Promoteurs Inc.; Danyluk v. Franco (1982), 42 C.B.R. (N.S.) 252; Jobin (Syndic de) v. Monarch Life Assurance Co., [1986] R.J.Q. 1755 (C.A.). The two most interesting decisions are certainly the following, in which, in addition to the element of gratuity, the concept of tracing that belongs to the common law was recognized and it was held, in particular, that the bankrupt had retained an "intérêt" (interest) in the property transferred: Boutin, Boutin, Arbour Inc. v. Samson Belair Deloitte & Touche Inc., [1994] R.J.Q. 1285 (S.C.); Giroux (Syndic de), [1993] R.J.Q. 1515 (S.C.).
  • [345] Re Hartney Co. (1962), 4 C.B.R. (N.S.) 71 (C.S.). On this point, the judge quoted cases decided in the common law provinces.
  • [346] Structal (1982) inc. v. Fernand Gilbert Ltee, [1998] R.J.Q. 2686 (C.A.); Re Nolisair International inc. (August 22, 2000), Montreal 500-09-008036-998 (C.A.), J.E. 20001665. Equitable set-off is possible where there is a close connection between two debts, where the requirements for legal set-off are not met (certain, liquid, exigible debts). In those decisions, the Court of Appeal applied the common law without any particular justification. Those decisions have been explained by reference to the equitable jurisdiction that some would have liked to ascribe to the Quebec Superior Court: Alain Vauclair and Annie Drzymala, "Quelques questions de politique legislative" (2003), 37 R.J.T. 147. For an attempt to reconcile the common law and civil law in relation to the rules of set-off in bankruptcy, see the reasons of Rousseau-Houle J. in Montreal Fast Print Ltd. v. Edifice 9500 Inc., supra, footnote 284; cited in Slater Steel Inc., Re (June 18, 2004), Montreal 500-11-020930-034 (S.C.). Note, however, that reference to equitable set-off in Quebec was clearly rejected by the Supreme Court of Canada in D.I.M.S. Construction inc. (Trustee of) v. Quebec (Attorney General), supra, footnote 315, after enactment of the Federal Law - Civil Law Harmonization Act, No. 1, supra, footnote 284.
  • [347] Re De Grandpre (1969), 15 C.B.R. 262, at p. 268. For further detail regarding the "powers of the trustee" under that Section (now s. 67(1)(d) in the Bankruptcy and Insolvency Act), see Albert Bohemier, "Research in Bijuralism: Bankruptcy and Insolvency Act", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Collection of Studies, Ottawa, Department of Justice Canada, 1997, p. 863.
  • [348] Langevin v. Weinberg, [1971] C.A. 122. The Court of Appeal clearly distinguished in this case between lis pendens in common law, which is applicable to the Bankruptcy Act (s. 87), and the rules of lis pendens ("litispendance") in the Code of Civil Procedure: [TRANSLATION] "The lis pendens addressed in our Code of Civil Procedure essentially refers to the judicial situation of parties who are engaged in more than one proceeding relating to the same objects. The fundamental principles and objects of the common law doctrine of lis pendens that applies to a certificate issued under rule 87 in the federal Bankruptcy Act are entirely different in their substance; they are more similar to the rules of registration."
  • [349] Bank of Montreal v. Hotels Cote de Liesse Inc. (Trustee of), [1996] Q.J. (Quicklaw) 496 (S.C.): "The concept of taxing costs as between solicitor and client is generally foreign to civil law of Quebec, and we must look to cases decided in the common law provinces for the governing principles." The rule was simply applied in Re Liakas (1993), 25 C.B.R. (3d) 101 (S.C.). Cf. Biron v. Caisse populaire Desjardins Buckingham, [2001] Q.J. (Quicklaw) 4179 (C.A.), in which the Court established equivalency and integration with an award of damages.
  • [350] The most important case for our purposes is undoubtedly Gervais v. Canada (M.N.R.), supra, footnote 276, in which the judge limited the concept of a gift in Quebec, in a case where an immovable was sold for less than market value, to a transfer without consideration: "In the present case we are dealing with a taxing statute which must be applied in the same manner throughout Canada and as the former Chief Justice Jackett stated, in dealing with different sections of the Income Tax Act even if the sale at an undervaluation constituted an indirect gift for the purposes of Article 712 of the Quebec Civil Code, this should not be taken to extend the application of Section 111 of the Income Tax Act in a litigation in that case in the Province of Quebec beyond what it would be in another Province." He added, relying on R. v. Littler, supra, footnote 276: "Although the benefit conferred by the deed of sale would probably be considered as a gift in Quebec law, for income tax purposes in which the law must be interpreted consistently throughout Canada ... ." See also a more nuanced application of the common law concept in Quebec in Aspinall v. Canada (M.N.R.), [1970] Tax A.B.C. 1073 (T.R.B.). On this entire issue, see Joseph Sirois, "Le concept de "don" / gift - Etude comparative droit civil - common law - droit fiscal" (2003), 24: 2 R.P.F.S. 381-422.
  • [351] Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10.
  • [352] Id., para. 28. See Travel Just v. Canada Revenue Agency, 2006 FCA 343 (F.C.A.), in which the Federal Court of Appeal referred to that decision and determined that it was not necessary in that case to refer to s. 8.1 of the Interpretation Act. The judged added that the issue of charity in the tax context is a matter of public law: "There is considerable force in the submission of the Minister that whether an organization is charitable for the purpose of the ITA is a question of public law, and not one of property and civil rights to which the private law of Quebec is relevant." In another case, the common law concept of charitable organization cited in relation to an association to promote amateur sport: A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), 2006 FCA 136. The Federal Court of Appeal concluded on that point that Parliament had created a special category for the association in the Act, and that Ontario provincial law could not apply, by means of s. 8.1 of the Interpretation Act, to confer charitable organization status on the association. Parliament had "occupied the field". The case was appealed to the Supreme Court, which dismissed the appeal by A.Y.S.A but did not entirely depart from the common law: (2007) SCC 42 (cf. reasons of Abella J.).
  • [353] Doriga v. M.N.R., [1981] C.T.C. 2155 (T.R.B.): "Dame Doriga is not beneficiary within the meaning of the Civil Code, but she is a beneficiary in fact and under the common law. Accordingly, she can be considered another person beneficially interested therein, since she is a beneficiary in fact and under the common law, and the federal Income Tax Act applies."
  • [354] Villard v. Canada (M.N.R.), supra, footnote 279.
  • [355] Wiebe Door Services Ltd. v. M.N.R., supra, footnote 337. On this point, and for contradictory decisions that rely on the complementarity principle, see supra, footnote 337. Note that Wiebe Door was cited with approval in a tort case in Ontario, in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983.
  • [356] Concerning decisions before Wiebe Door Services, see Hauser v. M.N.R., [1978] C.T.C. 2728 (T.R.B.); Hecht v. M.N.R., [1980] C.T.C. 2513 (T.R.B.); and more particularly Lafleur v. M.N.R., [1984] C.T.C. 2489 (T.C.C.). Concerning subsequent decisions, see, more particularly, Tedco Apparel Management Services Inc. v. M.N.R., [1991] 2 C.T.C. 2669 (T.C.C.); Placements Marcel Lapointe Inc. v. M.N.R., [1993] 1 C.T.C. 2261 (T.C.C.); and Beaulieu v. R., [1993] 2 C.T.C. 2323 (T.C.C.).
  • [357] Droit de la famille - 608, [1989] R.J.Q. 522 (C.A.). The concept was recognized in Pelech v. Pelech, [1987] 1 S.C.R. 801. It was expressed in that decision by the terms "unconscionable" in English and "lesionnaire" in French. Mailhot J.A. referred to ordinary dictionaries and legal dictionaries, and to a learned work attributing the concept to the courts of equity and American commercial legislation. In that case, she was prepared to recognize the "lesionnaire" aspect of the agreement. In his reasons, Frenette J.A., in the majority, stated that this was a concept originating in the common law provinces and the Divorce Act contained no requirement that a matrimonial convention had to be annulled where it was [TRANSLATION] "grossly unreasonable". He held that in that case, the agreement had a final nature, that there was no "undue disproportion between the prestations" and that the parties were on equal footing. Note also that the application of the common law concept was firmly rejected, relying on the complementarity principle, in G. (R.) v. A. (L.) (April 18, 2000), Montreal 500-12-123540-837 (S.C.).
  • [358] Reading & Bates Construction Co. v. Baker Energy Resources Corp., (1986) 13 C.P.R. (3d) 410 (F.C.T.D.): "I must take these words as they have been interpreted and it appears to me that the Patent Act has been interpreted as creating a statutory tort of infringement. ... I conclude that in determining who can be considered a party to infringement and thus subject to liability under s. 57 of the Patent Act one should have to resort not to the law of the province where the infringement took place but rather to common law principles which are presumed to have been adopted by implication when Parliament enacted this section."
  • [359] Roy v. Canadian Imperial Bank of Commerce, [1971] C.A. 321.
  • [360] Chemins de fer Nationaux v. Vincent et autre, [1975] C.A. 761. In the appeal to the Supreme Court of Canada, Pratte J.A., for the majority, stated that this was a civil law case in which art. 1053 of the Civil Code of Lower Canada had to be applied. See also Cie des chemins de fer nationaux du Canada v. Ashby, [1976] C.A. 594.
  • [361] This characteristic was examined by P.-A. Cote, op. cit., footnote 257, p. 20: [TRANSLATION] "... most authors acknowledge that the application of the law creates feedback for interpreting it. We need only do a careful reading of the case law to see what some have called 'backwards reasoning', that is, the phenomenon by which the conclusion of the judicial reasoning (application) influences the determination of its premises, and in particular the determination of the meaning of the text to be applied."
  • [362] supra, footnote 282.
  • [363] Paragraph 6 of the decision. Viscount Haldane based his decision on a literal interpretation of the legislation rather than on moral considerations.
  • [364] supra, footnote 350.
  • [365] The issue in this case was the sale of a house at an undervalued price. Walsh J. added: "Although the benefit conferred by the deed of sale would probably be considered as a gift in Quebec law, for income tax purposes in which the law must be interpreted consistently throughout Canada ... ." He relied, in particular, on the decision of the Federal Court of Appeal in R. v. Littler, [1978] C.T.C. 235 (F.C.A.). In that case, Jackett C.J. stated, concerning a decision of the Quebec Court of Appeal that had recognized indirect gifts in the tax situation, that it should not be understood as having extended the concept of a gift to Quebec for the purposes of federal legislation: "... it should not be taken to extend the application of Section 111 of the Income Tax Act in the Province of Quebec beyond what it would be in another province."
  • [366] supra, footnote 353.
  • [367] [1990] 1 C.T.C. 54 (F.C.T.D.).
  • [368] The judge cited an article by Professor Albert Mayrand, who ascribed the principle of fairness to the decision of the Privy Council in Smith. The judge concluded as follows: "...it would be quite unfair for taxpayers in one province to be favoured by provincial legislation dealing with the application of the Act, which should affect all Canadian taxpayers equally."
  • [369] supra, footnote 340: "to be equitable, an income tax law must apply in general to the entire nation. In the present case it would not be fair because taxpayers in the Province of Quebec would enjoy an advantage that taxpayers in other provinces would not have. I feel it is clear that the legislator intended to include all leases, even emphyteusis ... ."
  • [370] supra, footnote 312. The judge referred to the complete code theory, but added: "In the interests of the uniform application of this federal statute and the equality of taxpayers before the taxation authorities, I am of the opinion that Parliament, under subSection 224(1) of the Income Tax Act, has created a unique mechanism that gives its provision a genuine self-sufficiency in relation to private law." The principle was not cited by the Federal Court of Appeal, which relied on the fact that Parliament was not silent regarding the rules governing garnishment.
  • [371] Construction Berou inc. v. Canada, supra, footnote 264.
  • [372] Later, in concluding that the acquisition of property for the purpose of capital cost allowance occurs when the normal incidents of title, such as possession, use and risk, are transferred, the judge added: "For practical purposes this interpretation has the merit of recognizing, for tax legislation that applies throughout Canada, a business practice that has no boundaries and of avoiding the danger of becoming too embroiled in unnecessary, sectoral and above all sterile and inequitable legalism at a time when the trend in the civil law is to approximate more closely to the common law." He made remarks to the same effect, relating to fairness and uniformity as opposed to the disparities in provincial law, in relation to Revenue Canada's Interpretation Bulletin IT233R of February 11, 1983. Construction Berou was cited to the same effect in Hewlett Packard (Canada) Ltd. v. R., supra, footnote 264.
  • [373] [1993] 4 S.C.R. 695. See also Markevich v. Canada, supra, footnote 298, para. 18. In that decision, the Supreme Court concluded, however, that the application of a limitation to recovery of tax debts did not offend the principles of horizontal equity and vertical equity.
  • [374] The judge stated that the principle of vertical equity requires that "the incidence of the tax burden should be more heavily borne by the rich than the poor." L'Heureux-Dubé J. defined them as follows: The former [horizontal equity] requires that we tax individuals in similar circumstances the same, while the latter [vertical equity] focuses on the similar taxation of individuals in different circumstances." Concerning the history of this principle, which was stated by the Carter Commission in the 1960s, see Peter W. Hogg, Joanne E. Magee and Ted Cook, Principles of Canadian Income Tax Law, 3rd ed., Scarborough, Ontario, Carswell, 1999, p. 40.
  • [375] It may be seen, in particular, in the words of the decision of the Privy Council in Smith, supra, footnote 282: "Their Lordships can find no valid reason for holding that the words used by the Dominion Parliament were intended to exclude these people, particularly as to do so would be to increase the burden on those throughout Canada whose businesses were lawful."
  • [376] The principle is based on "ability to pay", and not on territoriality. It applies by subgroup of taxpayers. For an overview of the economic considerations that govern fairness in tax law, see P.W. Hogg, J.E. Magee and T. Cook, op. cit., footnote 374. Note that it was mainly an economic analysis advanced in Symes and Markevich, supra, footnotes 373 and 298 respectively.
  • [377] supra, footnote 357.
  • [378] We examined a number of bankruptcy law decisions in which the courts preserved the exclusive jurisdiction of the Parliament of Canada to establish the order of priority among creditors. The principle of the equality of creditors in a bankruptcy (with certain exceptions) has been cited in certain decisions to declare provincial legislation granting preferred or guaranteed status to certain debts to be inoperative. See, in particular, Quebec (A.G.) v. Larue, [1928] A.C. 187 (P.C.); Re Automobile Gingras Ltee, [1962] S.C.R. 676; Sous-ministre du Revenu v. Rainville (Re Bourgault), [1980] 1 S.C.R. 35. After reflection, it seems to us, however, that this equality principle is not entirely relevant to this analysis, since equality in this instance appears to be more the effect of the federal legislation (which the courts are concerned with protecting) than a principle that governed the interpretation or application of the federal legislation itself. We will return to these decisions, which are more relevant, in our view, in the analysis of procedures that refer to the object of the law or the authority of the legislature (in this case, federal paramountcy).
  • [379] Whitbread v. Walley, [1990] 3 S.C.R. 1273. The Court advanced an argument based on fairness and logic in this area, as opposed to railway transportation. In that case, which is more heavily integrated into communities, uniformity could be a source of injustice: "...while there is much sense and even justice in the maintenance of a separate regime of tort law for those who engage in navigation or navigation and shipping, such a regime would, in the case of railways, make little sense and be productive of great injustice ...".
  • [380] The principle is stated in the preamble to the Canadian Charter of Rights and Freedoms. The expression quoted is taken from the discussion by Henri Brun and Guy Tremblay, Droit constitutionnel, 4th ed., Cowansville, Quebec, Éditions Yvon Blais, 2002, p. 686: [TRANSLATION] "In Dicey's view, the rule of law also means that everyone is equal before the law, or that everyone is equally subject to the law." See also the discussion of the second principle that makes up the rule of law, in Dicey's view, in Halsbury's Laws of England, 4th ed. (reissue), London, Butterworths, 1996, vol. 8(2), page 14, footnote 1: "... (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; ...." In an essay addressing, in particular, the meaning of "ordinary law" in the principle stated by Dicey, see H.W. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979), 17 Osgoode Hall L.J. 1.
  • [381] H. Brun and G. Tremblay, op. cit., footnote 380, p. 686. The authors base their position on this statement: [TRANSLATION] "The rule of law instead precludes the existence of any general dispensation that would put the government above the law, and of any individual dispensation that does not have its basis in the law."
  • [382] See the statement of constitutional principles, which include federalism and the rule of law, in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 49 et seq. Note that the question was analyzed as well in relation to the right to equality set out in s. 15 of the Canadian Charter of Rights and Freedoms. In a very interesting decision in a criminal law case, R. v. S. (S.), [1990] 2 S.C.R. 254, the Supreme Court specifically examined the intersection between the principles of federalism that govern the division of powers and allow for diversity within the federation and the principles that protect the right to equality under Section 15, more specifically. See the comments by Dickson J. concerning the intersection of these principles: "It is trite law that the Canadian Constitution creates not only a boundary between the individual and the state, but also creates boundaries between the federal and provincial levels of government. The intersection of these two constitutionally mandated boundaries inherently raises a problem because it represents the conflict of two competing values -- uniformity and diversity." The judge stated the following principle, later "... differential application of federal law can be a legitimate means of forwarding the values of a federal system". That passage was quoted in a subsequent decision, Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, concerning a separate referendum to be held in Quebec under the provincial law. L'Heureux-Dube J., for the majority, wrote: "Clearly, in a federal system, province-based distinctions do not automatically give rise to a presumption of discrimination. Section 15(1) of the Charter, while prohibiting discrimination, does not alter the division of powers between governments, nor does it require that all federal legislation must always have uniform application to all provinces."
  • [383] S. 94, Constitution Act, 1867, 30 & 31 Vict., U.K., c. 3 (reproduced in R.S.C. 1985, App. II, No. 5). See supra, Part I, footnote 72.
  • [384] It would be an exaggeration to take from the concept of fairness stated in s. 12 of the Interpretation Act the principle of uniformity of application of federal legislation, particularly in view of the English version, which refers more clearly to the kind of interpretation that must be applied in every situation in issue: "12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." There could therefore not be a general principle of interpretation of federal legislation that could cast doubt on the principle stated in s. 8.1 of that Act. The same is true of subs. 8(1) of that Act, relating to the territorial operation of federal legislation, since it does not relate to the substance of enactments itself (note the use of that Section in combination with s. 8.2 in Sylvie Vallee and Louis Bouchard d.b.a. Fiducie Sylvie Vallée v. The Queen, supra, footnote 281). Note also Markevich v. Canada, supra, footnote 298, in which the Supreme Court determined that a uniform limitation, and not a reference to provincial law, applied under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 32, since the cause of action arose "otherwise than in a province", that is, in Canada. The equality principle in this case, curiously, is based on an abstract, or territorially unified, conception of Canada. Concerning pragmatic arguments and the presumption of uniformity of the law, cf. P.A. Cote, op. cit., footnote 257, p. 633.
  • [385] See the previous part, Section I.B.1.(a).
  • [386] R. Sullivan, op. cit., footnote 261, p. 195. Sullivan clearly distinguishes between interpretation to identify the object of the legislation and interpretation that takes the object into account to determine the meaning of a text. See also P.-A. Cote, op. cit., footnote 257, p. 476: [TRANSLATION] "It is important to distinguish intention-meaning from intention-purpose, because while those two elements are separate, they interact. The terms used by the enactment are primarily what make it possible to discover its object. On the other hand, the object of a provision, as an element of its context, contributes to clarifying its meaning." What we are mainly referring to here is the object from which the meaning of a provision, or, more broadly, its sources, can be determined. Concerning the distinction between the object and effect of legislation in constitutional law, cf. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, para. 80: "All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible."
  • [387] P.-A. Cote, op. cit., footnote 257, p. 475; Ruth Sullivan, op. cit., footnote 261, p. 204.
  • [388] supra, footnote 287. See also in the previous part, I.B.1.(b), "relationship with the common law".
  • [389] R. Sullivan, op. cit., footnote 261, p. 201 et seq.
  • [390] Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), supra, footnote 303.
  • [391] S.C. 1996, c. 20.
  • [392] See supra, footnote 303.
  • [393] [1990] 3 S.C.R. 1273. See also, reiterating essentially the same reasons, Ordon Estate v. Grail, [1998] 3 S.C.R. 437. Note this surprising sentence in that decision: "The importance of uniformity in maritime law is universal [no less], and does not vary according to the coastal location of an individual case." (Emphasis added)
  • [394] This is the complete quotation: "The inclusion of pleasure craft within the ambit of maritime law gains further support, by way of analogy, from the jurisprudence on the federal government's jurisdiction over aeronautics. Once Canadian waters are conceived of as a single navigational network, it becomes clear that the activity of navigation is very akin to the activity of aeronautics, and it seems to me that the factual similarity should lead to similar constitutional treatment." Canada 3000, supra, footnote 303, an aeronautics decision, also refers, by analogy, to maritime law decisions.
  • [395] Compare Friesen v. Canada, supra, footnote 279 and Quebec (Communaute urbaine) v. Corp. Notre-Dame de Bon-Secours, supra, footnote 262.
  • [396] See, for example, Markevich v. Canada, supra, footnote 298, para. 18. In the opinion of the Supreme Court, a purposive analysis of the Income Tax Act confirms that the collection provisions do not implicitly preclude the application of s. 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which provides for the application of provincial limitation rules where the cause of action arose in the province. See the application of that decision in Canada (A.G.) v. National Bank of Canada, supra, footnote 298.
  • [397] supra, footnote 277.
  • [398] The definition is reconciled with the ordinary meaning in common law, "assuming" that the meaning is the same in civil law. See our remarks in relation to unity based on "ordinary meaning", supra", footnote 277. Sharlow J. also referred to the legislative history, in determining the meaning and scope of the definition of the word "property". He concluded that the definition was not "intended", was not included "in order to" cover a right to compete. "[The word 'property'] cannot be given a meaning that would extend the reach of the Income Tax Act beyond what Parliament has conceived."
  • [399] supra, footnote 276.
  • [400] The implied goal being, as we understand it, to increase tax revenues: "But one must not lose sight of the fact that what we are dealing with in this appeal is the interpretation of a statute of which the prime purpose is very well understood by all Canadians." For another example, in which the Federal Court of Appeal relies on a flexible interpretation of the concept of payment adopted in an earlier decision by that Court, an interpretation based on the "clear purpose of the section", see Commission de la Construction du Québec v. Canada (M.N.R.), supra, footnote 280. Note that the Court considered, in obiter, that the technical concept of payment in civil law was nonetheless respected in that case. Section 8.1 of the Interpretation Act had been argued for that purpose.
  • [401] supra, footnote 258, para. 60. See also para. 69: "In my view, the legislative purpose here is to give positive encouragement to manufacturing and processing plants. This corroborates and reinforces the 'plain meaning' of the Act." (Cf. Sylvie Vallée and Louis Bouchard d.b.a. Fiducie Sylvie Vallee v. The Queen, supra, footnote 281). Note also the parallel between an interpretation based on the "clear meaning" of the legislation and one based on the object of the legislation, in a decision dealing with deemed trusts in an income tax case: First Vancouver Finance v. M.N.R., supra, footnote 320. It says: "...Parliament could not have intended an employer who is in default one day and comes into a significant payment the next to thereby largely escape the operation of the deemed trust and continue to use the misappropriated funds in its business dealings. This would not accord with the Parliamentary intention to grant broad powers of collection to the Minister under the deemed trust." See also, on this point, Canada (A.G.) v. National Bank of Canada, supra, footnote 298.
  • [402] Construction Berou Inc. v. Canada, supra, footnote 264.
  • [403] Hillis v. R., [1983] C.T.C. 348 (F.C.A.): "These provisions are stated to be for all purposes, but obviously that can mean only for all provincial purposes. They cannot be taken to intrude fictions for provincial purposes into the interpretation and operation of the Act. The latter takes its operation in the realities of the circumstances, subject only to such directives as it may itself prescribe." Note, concerning another question relating to limitations, the comments of the judge stating that the Act must be given a generous interpretation in order to respect the purpose of Parliament.
  • [404] See the decisions supra, footnotes 337 and 356. On this issue, the approach based on the complementarity of provincial law was set up against the purposive approach in 9079-6038 Quebec Inc. v. Canada (M.N.R.), 2005 TCC 743.
  • [405] Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., supra, footnote 351, para. 28. See also Travel Just v. Canada Revenue Agency, supra, footnote 352, in which the Federal Court of Appeal precluded the application of Quebec law where there were no operations in that province.
  • [406] A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), supra, footnote 352. The decisions in that case show that the unification procedure based on end results is closely connected with the issue of legislative intention, and ultimately authority: see infra, footnote 419.
  • [407] Bank of Nova Scotia v. Angelica-Whitewear, supra, footnote 343.
  • [408] Deputy Minister of Rev. (Que.) v. Rainville (Re Bourgault), supra, footnote 378. The following is the Court's statement regarding para. 107(j) of the Bankruptcy Act: "The purpose of this part of the provision is obvious. Parliament intended to put all debts to a government on an equal footing; it therefore cannot have intended to allow provincial statutes to confer any higher pri-ority." See also Re Reed; Sous-ministre du revenu du Québec v. Franco (1983), 49 C.B.R. (N.S.) 21 (Que. C.A.), following that decision, in which the Court of Appeal referred to two general goals of the federal statute: the orderly distribution of assets and uniformity in the insolvency and bankruptcy system throughout Canada.
  • [409] Banque canadienne impériale de Commerce v. Marcano, [1990] R.J.Q. 28 (C.A.): [TRANSLATION] "If the federal Parliament thought it appropriate for social and humanitarian reasons to discharge certain persons from their civil debts, using the Bankruptcy Act, that release, which the provincial legislature did not need to provide in its legislation because it was not under its jurisdiction, is nonetheless a method of extinction." Concerning the discharge of debts, cf. the pragmatic approach taken by the Court of Appeal in Hamel v. Hamel, supra, footnote 331.
  • [410] Blaha v. Canada (Minister of Citizenship & Immigration), supra, footnote 275. The statute cited is R.S.C. 1970, c. C-19.
  • [411] Where the tension between the text and the object is resolved in favour of the object, which no longer has any basis in the text, the interpreter will then, for example, have to adopt presumptions of intention. Obviously the risk is that the interpreter will substitute themself for the legislator. In the opinion of Ruth Sullivan, op. cit., footnote 261, p. 199, there are cases where the courts stretch the meaning of the text in order to give effect to a clear objective. On this point, see the analysis by P.-A. Cote, op. cit., footnote 257, pp. 484-493.
  • [412] See Peter W. HOGG, Constitutional Law of Canada, 4th Ed. (loose-leaf), Vol 1; Scarborough, Ontario, Thomson-Carswell, 1997 (updated "2006-Release 1), paras. 15-28.
  • [413] H. BRUN and G. TREMBLAY, op. cit., footnote 380, p. 196. N.B. when determining the validity of a text, the Constitution provides for the provision to be deemed "of no force or effect": Constitution Act, 1982, Schedule B of the Canada Act 1982 (1982, U.K. Ch.11) subs. 52(1). The French term is "inopérant." As for the French, the term is ambiguous and is also used for a valid act declared inoperative because of an operational conflict. See H. BRUN and G. TREMBLAY, op. cit., footnote 380, p. 196 et. seq.
  • [414] supra, footnote 282.
  • [415] Judgment rendered by Vicompte Haldane: "The Dominion Parliament is in such a matter of taxation quasi sovereign, and it is not open to serious doubt that under sec. 91, the Dominion Parliament could tax the profits in question if it thought fit to do so, or that the fact that they arose from operations of traffic in liquor made illicit by the provincial legislation of a Province constitute no hindrance to such taxation, if the Dominion Parliament had clearly directed it to be imposed." Note that the judge also relies on teleological arguments and the plain language rule.
  • [416] Supra, footnote 298.
  • [417] As in Smith, it is definitely an issue of legislative interpretation, plain and simple. Note that the trial judge had relied on the comprehensive code theory (supra, footnote 312). See also Hillis v. R., supra, footnote 403, where the Federal Court of Appeal, evoking a type of immunity, dismissed the application of a fiction of provincial law regarding the effect of wills: "These provisions are stated to be for all purposes, but obviously that can mean only for all provincial purposes. They cannot be taken to intrude fictions for provincial purposes into the interpretation and operation of the Act."
  • [418] First Vancouver Finance v. M.N.R., supra, footnote 320, paras. 26 and 34. In these excerpts, because it is a legislative framework, the Court clearly favours "Parliament" in matters of trust. More specifically, the issue was whether the Crown could claim property acquired after the trust arises and then sold to a third party. At para. 34, the Court states: ".since the trust is a deemed statutory trust, it is not governed by common law requirements, and, in this regard, the ongoing acquisition of trust property does not present a conceptual difficulty." Note that, regarding the first point, the Court refers to Royal Bank of Canada v. Sparrow Electric Corp., supra, footnote 320. Regarding Parliament's authority in matters of deemed trust, see also Newcourt Financial Ltd. v. Canada, 2004 FCA 91, paras. 25 and 26, and another Federal Court of Appeal decision rendered the same day, in which s. 8.1 of the Interpretation Act was cited: Canada (A.G.) v. National Bank of Canada, supra, footnote 298, paras. 49 and 50.
  • [419] Canada (A.G.) v. National Bank of Canada, supra, footnote 298: "It is not the task of the judiciary to determine whether it is appropriate for Parliament to use common law concepts in Quebec (or to use civil law concepts elsewhere in Canada) for the purpose of giving effect to federal legislation. The task of the courts is limited to discovering Parliament's intention and giving effect to it." See also A.Y.S.A. Amateur Youth Soccer Association v. Canada (Revenue Agency), supra, footnote 406.
  • [421] See Re Giffen, [1998] 1 S.C.R. 91. This decision concerns the rights of a lessor in a bankruptcy when the lessor has not perfected its security interest in accordance with the PPSA. The Supreme Court distinguished this case from those analyzed in the quartet of decisions that will be discussed next. It states (para. 64): "Even though bankruptcy is clearly a federal matter, and even though it has been established that the federal Parliament alone can determine distribution priorities, the BIA is dependent on provincial property and civil rights legislation in order to inform the terms of the BIA and the rights of the parties involved in the bankruptcy. Section 72(1) of the BIA contemplates interaction with provincial legislation." It adds that s. 20(b)(i) of the PPSA of British Columbia does not offend the priorities set out in the BIA and is instead one element of the provincial legislation which serves to define the rights of the parties involved in a bankruptcy (para. 63). In this regard, see also: International Harvester Credit Corp. of Canada Ltd. v. Bell's Dairy Ltd. (Trustee of) (1986), 61 C.B.R. (n.s.) 193: Re Hannah, (1988) 68 C.B.R. (n.s.) 270; Paccar Financial Services Ltd. v. Sinco Trucking Ltd. (Trustee of), (1989) 73 C.B.R. (n.s.) 28. As regards Quebec civil law and the attempts to harmonize it with the PPSA schemes, see how the Supreme Court came to the defence of a certain civilist orthodoxy: Lefebvre (Trustee of); Tremblay (Trustee of), [2004] 3 S.C.R. 326; Ouellet (Trustee of), [2004] 3 S.C.R. 348. As for the problem surrounding the harmonized definition of "secured creditor" in the Bankruptcy and Insolvency Act, see Maschinenfabrik Rieter, a.g. v. PriceWaterhouseCoopers Inc. (November 1, 2005), Montreal 500-09-012686-028 (C.A.); and Roy (Syndic de), (February 27, 2006), Quebec 200-09-005087-058 (C.A.).
  • [422] [1960] S.C.R. 571.
  • [423] supra, footnote 378.
  • [424] The analysis of what is ancillary was based more specifically on Attorney General of Ontario v. Attorney General for Canada, [1894] A.C. 189.
  • [425] supra, footnote 378.
  • [426] The claim is limited to three months arrears of rent prior to the bankruptcy and the amount realized from property of the bankrupt. The Court deemed the cost of the repairs to be unsecured debt.
  • [427] The cases are in order: Deputy Minister of Revenue v. Rainville (Re: Bourgault), supra, footnote 378; Deloitte Haskins and Sells Ltd. v. Workers' Compensation Board, [1985] 1 S.C.R. 785; Federal Business Development Bank v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 1061; and British Columbia v. Henfrey Samson Belair Ltd., supra, footnote 283. A summary of these decisions and the principles they establish is set out in Husky Oil Operations Ltd. v. Minister of National Revenue, supra, footnote 299, at para. 10 et seq. and para. 132 et seq. The four decisions dealt respectively with the following issues: (i) whether a privilege registered by the Crown on immovable property renders the Crown a "secured creditor"within the meaning of the Bankruptcy Act; (ii) whether a charge upon the property or proceeds of property of the employer for unpaid assessments to a government agency render the agency a "secured creditor"; (iii) whether federal or provincial law determine the order of priorities of distribution when a secured creditor availed himself of a provision of the Bankruptcy Act to liquidate his security outside of the bankruptcy proceedings; (iv) whether the deemed statutory trust created by provincial legislation for provincial sales tax collected is a valid trust within the meaning of Bankruptcy Act or a preferred claim.
  • [428] The minority, in the reasons of Iacobucci J., support the restrictive interpretation of the quartet, while rejecting, like the majority, a broad interpretation based on the "bottom line" approach, according to which any time provincial law "affects" the final result of a bankruptcy (see paras. 30 and 139). In this respect, Gonthier J., for the majority, notes that the
  • [429] See paras. 29 et seq. of the reasons of Gonthier J. Justice Gonthier refers to a doctrinal analysis, summarized in four points, to which he adds two additional principles.
  • [430] The controversy was examined with respect to the theory of the complete code, supra, footnote 312.
  • [431] See para. 213. This confusion and " leads to the incorporation of the conflict or operational incompatibility test, which renders legislation inoperative, with the theory of interjurisdictional immunity, which renders it inapplicable. The approach to paramountcy favoured by Iacobucci J. has the benefit, in his opinion, to promote "coexistence" over "conflict" (para. 22).
  • [432] See supra, footnote 300. In particular, this decision involved determining whether a provincial law requiring judicial approval for seizure of a property conflicted with the uniformed federal securities scheme under the Bank Act, R.S.C. (1985) c. B-1.
  • [433] See Rothmans, Benson & Hedges v. Saskatchewan, supra, footnote 315, where the argument regarding "occupy the field" was rejected by the Supreme Court. In Part I, we described this approach favouring a watertight approach, if not the extension of federal authority: see supra section I.A.1. This approach is criticized in H. BRUN and G. TREMBLAY, op. cit., footnote 380, at pp. 461 and 464. Regarding the classic concept of operational conflict, specifically the impossibility of complying with two laws at the same time, see Multiple Access v. McCutcheon, [1982] 2 S.C.R.161. In Hall, the Court applied a broader concept of conflict that involved determining whether the "intent" of Parliament is displaced by provincial legislation. To this effect, see also Law Society of British Columbia v. Mangat, supra, footnote 302. See the comments of H. BRUN and G. TREMBLAY, id, at p. 459; and Eugenie BROUILLET "The federal Principle, the Balance of Power and the 2005 decisions of the Supreme Court of Canada", (2006) 34 Supreme Court Law Review 307, at p. 327.
  • [434] R. SULLIVAN, op. cit., footnote 261, at pp. 95 and 103.
  • [435] See Bell Canada v. Quebec (CSST), [1988] 1 S.C.R. 749; Delgamuukw v. British Columbia, supra, footnote 318. The first case involved determining whether the provisions of the Act respecting occupational health and safety, S.Q. 1979, c. 3, could apply to a federal undertaking. In setting out the applicable principles Beetz J. writes ".works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive authority of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction." In a prior decision, the Court had rejected the claim that provincial statutes of general application do not apply to federal Crown lands: Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754. Only legislation affecting "integral parts" of federal jurisdiction would be ruled inapplicable. This conclusion was reiterated with respect to the theory of interjurisdictional immunity in Commission de transport de la Communauté urbaine de Québec v. National Battlefields Commission, [1990] 2 S.C.R. 838, which explains this theory.
  • [436] We are paraphrasing Gonthier J. in Commission de transport de la Communaute urbaine de Québec v. National Battlefields Commission, supra, footnote 435.
  • [437] The unification of "Canadian maritime law" was realized in large part since ITO-International Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752. For an example of maritime law based on legislation, see Whitbread v. Walley, supra, footnote 379, where the Supreme Court determined that sections 647 and 649 of the Canada Shipping Act, R.S.C. 1970, c. S-9, pertaining to limitations as to liability, are within the exclusive powers of Parliament as set out in s. 91(10) of the Constitution Act, 1867.
  • [438] This is the best argument, contrary to the conclusion reached in Part I of this thesis (section I.A.2), to support the existence of "federal common law" in maritime law. Regarding this issue and the scope of the expression "laws of Canada", see Whitbread v. Walley, id.: "Put the other way round, s. 101 requires that any jurisdiction granted to the Federal Court be supported or nourished by an existing body of law that is subject to Parliament's legislative jurisdiction. In the case of the Federal Court's jurisdiction over maritime and admiralty matters, that body of law is referred to in s. 22 of the Federal Court Act as "Canadian maritime law"." (emphasis added). We would note a small semantic shift from the expression "applicable and existing federal law" used in Quebec North Shore Paper v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054.
  • [439] The courts have based themselves several times on the jurisdiction in equity of English law provided in the federal bankruptcy act to apply common law rules in Quebec. On this subject, see our references and comments, supra, footnote 346.
  • [440] We are not excluding the hypothesis that the unification of federal private law is occasionally based on the inherent jurisdiction of superior courts of justice. See Antoine LEDUC, "Les limites de la "juridiction inherente" du tribunal et le cas du financement debiteur - exploitant ("DIP Financing") en droit civil quebecois", (2005) 39 R.J.T. 551.
  • [441] Analysis carried out primarily in a trilogy of decisions: Quebec North Shore Paper v. Canadian Pacific Ltd., supra, footnote 438; McNamara Construction et al. v. The Queen, [1977] 2 S.C.R. 654; and R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695
  • [442] S. 22, Federal Courts Act, R.S.C. 1985, c. F-7. This section uses the expression "Canadian maritime law", which is defined in s. 2 of the Act.
  • [443] This is a quotation from Ordon Estate v. Grail, supra, footnote 393. This decision provides a very useful overview of the issue. See also the following statement by McIntyre J. in ITO-International Terminal Operators v. Miida Electronics, supra, footnote 437, which began the recent movement towards unification of maritime law: "Canadian maritime law is that body of law defined in s. 2 of the Federal Court Act. That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada."
  • [444] S. 91(10), the Constitution Act, 1867. These findings are set out in Whitbread v. Walley, supra, footnote 379. Regarding the scope of the expression "laws of Canada", see our comments, supra, footnote 438.
  • [445] Whitbread v. Walley, id.: "It follows that they are intra vires Parliament, and that this conclusion is in no way dependant on any application of the double aspect or necessarily incidental doctrines." See also Ordon Estate v. Grail, supra, footnote 393: "Canadian maritime law is uniform throughout Canada, and it is not the law of any province of Canada. All of its principles constitute federal law and not an incidental application of provincial law." Compare this with the situation regarding bills of exchange, where the reference to common law in s. 9 of the Bills of Exchange Act, R.S.C. 1985, c. B-4, has been limited in the case law to law regarding commercial paper "in the strict sense", thus allowing a suppletive application of civil law. Regarding the contrast between maritime law and the law of negotiable instruments, see J.-M. BRISSON and A. MOREL, loc. cit., footnote 326, at p. 301. Regarding the interpretation of s. 9, see Jean LECLAIR, "L'interaction entre le droit privé fédéral et le droit civil québecois en matière d'effets de commerce : perspective constitutionnelle", (1995) McGill L.J. 691.
  • [446] Ordon Estate v. Grail, supra, footnote 393; Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683. In this latter case, we see the approach of L'Heureux-Dubé J. at work when she discuses the relevance of considering civil law with a comparative method given its influence on the development of English maritime law. Cf. the comments of L'Heureux-Dube J. regarding law as a "basic fabric" in 2747-3174 Quebec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919.
  • [447] See our references and comments, supra, footnote 393.
  • [448] Q.N.S. Paper Co. v. Chartwell Shipping Ltd., supra, footnote 446. The path is thus completed : from the jurisdiction of the Federal Court to the jurisdiction of Parliament to the jurisdiction of courts across the country. The question remains whether the exclusive jurisdiction of the provinces for property and civil rights is respected in the field of maritime law. The cohesive nature of federal jurisdiction over maritime law was analyzed in Jean LECLAIR, "L'impact de la nature d'une compétence législative sur l'étendue du pouvoir confère dans le cadre de la Loi constitutionnelle de 1867", études juridiques en l'honneur de Jean Beetz, (1994) R.J.T. 661. The professor provides a distinction between "material" constitutional analysis (application of practical criteria to interrelated undertakings under the theory of interjurisdictional immunity) and the "analytical" approach (legal analysis of concepts that establish areas of jurisdiction). In particular, he describes how "material" analysis in maritime law linked the determination of Parliament's jurisdiction with that of the federal court. According to the professor a [translation] "inversion of approaches" was carried out [translation] "by changing the jurisdiction over navigation and shipping into jurisdiction of maritime matters" (p. 706). Accordingly, he said [translation] "legislative interpretation, driven by a desire to give broad jurisdiction to the Federal Court, determined the constitutional interpretation." (p. 707). Professor Leclair concludes [translation] "The use of a material approach thus resulted in a disproportionate extension of the exclusive jurisdiction of Parliament." (p. 710).
  • [449] supra, footnote 393.
  • [450] An analysis of this nature regarding the possibility of applying civil law incidentally can be found in ITO - International Terminal Operators v. Milda Electronics, supra, footnote 437: "Canadian maritime law as adopted in Canada historically, and as finally brought into Canadian law by s. 2 of the Federal Court Act, includes common law principles as they are applied in Admiralty matters. Thus (..) common law principles so incorporated are federal law and not an incidental application of provincial law."
  • [451] As for areas other than negligence, the Supreme Court leaves a small opening for the application of civil law in maritime law, for example with respect to rules of court or taxation. The question to be asked in this case is" "Does the provincial statutory provision at issue have the effect of regulating indirectly an issue of maritime negligence law?" If the provincial law has this effect, it should be read down, according to the Court.
  • [452] See, for example, Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Tomell Investments Ltd. v. East Marstock lands Ltd., [1978] 1 S.C.R. 974.
  • [453] See General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641. In that case, the civil cause of action created by Parliament in the Combines Investigation Act, R.S.C. 1970, c. C-23., s. 31.1, was reviewed. With respect to the integration test developed in the case, it ensures that [TRANSLATION] "the efficiency of the Act overrides the exclusive nature of the division of powers," see: J. LECLAIR, loc. cit., footnote 448, p. 715-716 (see in particular the comments in footnote 105, p. 715).
  • [454] General Motors of Canada Ltd. v. City National Leasing, supra, footnote 453.
  • [455] Although the case involves environmental law, see R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, where the Supreme Court resorts to the doctrine of national dimensions and criteria of "singleness, distinctiveness and indivisibility" so as to pass environmental legislation within Parliament's general power to legislate for the "peace, order and good government of Canada." It is not excluded that this approach will eventually serve to bring a private law matter that in principle falls within provincial power within Parliament's power. For an example prior to Crown Zellerbach, relating to the rules of liability applicable to a case of interprovincial pollution, see Interprovincial Co-Operatives Ltd. v. Dryden Chemicals Ltd., [1976] 1 S.C.R. 477. Lastly, with respect to Crown Zellerbach and General Motors of Canada, which we cite in the present paragraph, see: Jean LECLAIR, "The Supreme Court of Canada's Understanding of Federalism: Efficiency at the Expense of Diversity," (2003) Queen's L.J. 411
  • [456] 30 & 31 Vict., U.K., c. 3 (reproduced in R.S.C., 1985), App. II, No. 5.
  • [457] John M. KERNOCHAN, "Statutory Interpretation: An Outline of Method," (1976-1977) 3 Dalhousie L.J. 333, at p. 333: "Statutes were scattered islands in the ocean of common law. . . . But change has come and is currently at work at an astonishing pace. The islands of legislation have become much more numerous; they have become archipelagoes in some areas. The islands have grown in size; some are almost continents."
  • [458] This evocative image was suggested by our director, Jean-Maurice Brisson.
  • [459] Bastarache J. of the Supreme Court has referred to a [TRANSLATION] "legislative framework" with regard to sections 8.1 and 8.2 of the Interpretation Act: Michel Bastarache, "Les difficultes relatives a la determination de l'intention legislative dans le contexte du bijuridisme et du bilinguisme legislatif canadien", in Jean-Claude Gemar and Nicholas Kasirer (eds.), Jurilinguistics: Between Law and Language / Jurilinguistique: entre langues et droits, Paris, éditions juridiques Bruylant / Montréal, Éditions Thémis, 2003, 95, at p. 111.
  • [460] R.S.C. (1985), c. I-21.
  • [461] See France Allard, "The Supreme Court of Canada and Its Impact on the Expression of Bijuralism", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 3, p. 27; France Allard, "Entre le droit civil et la common law: la propriété en quète de sens", in Jean-Claude Gemar and Nicholas Kasirer (eds.), Jurilinguistique: entre langues et droits / Jurilinguistics: Between Law and Language, Paris, Editions juridiques Bruylant / Montreal, Éditions Thémis, 2003, 195; Louis Lebel and Pierre-Louis Le Saunier, "L'interaction du droit civil et de la common law a la Cour suprême du Canada" (2006), 47 C. de D. 179, 202 et seq. See also, regarding "derivative bijuralism", Ruth Sullivan, "The Challenge of Interpreting Multilingual, Multijural Legislation", (2004) 29 Brook. J. Int'l. L. 985, 1043 et seq. The "dialogue" metaphor is also used in public law to describe the interaction, not of traditions, but between the courts and Parliament, or even between the latter and citizens. See Jean Leclair, "Réflexions critiques au sujet de la metaphore du dialogue en droit constitutionnel canadien", (2003) R. du B. 377 (special issue).
  • [462] A very good example is provided by the analysis of Deschamps J. in D.I.M.S. Construction Inc. (Trustee of) v. Quebec (Attorney General), [2005] 2 S.C.R. 564. See our comments on the subject: Philippe Denault, "D.I.M.S. Construction Inc. (Syndic de) c. Québec (Procureur général): La fin d'une controverse - Mise en oeuvre du principe de complémentarité par la Cour suprême du Canada", (2006) 27 R.P.F.S. 235.
  • [463] Section 8.2 of the Interpretation Act makes it necessary, to some extent, to read federal texts through the prism of common law, with reference to a term's civil law or common law affiliation or meaning. That being the case, the common law of a province will not always be mirrored by federal law. On the meaning of the word "property" and the confluence of traditions in the federal legal system, see for example F. Allard, "Entre le droit civil et la common law: la propriete en quete de sens", loc. cit., footnote 461.
  • [464] See Michel Bastarache, "Bijuralism in Canada", in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Ottawa, Department of Justice Canada, 2001, Booklet 1, 18, at p. 25: "Bijuralism in Canada is more than the mere 'co-existence' of the two legal traditions. It involves the sharing of values and traditions." See also Charles D. Gonthier, "Quelques reflexions sur le bijuridisme - Convergence et valeurs" (2003), 33 R.G.D. 305, 317: [TRANSLATION] "We are all moving along paths that increasingly overlap."
  • [465] See only Peter W. Hogg, Constitutional Law of Canada, 4th ed. (loose-leaf) , vol. 1, Scarborough, Ontario, Thomson-Carswell, 1997 (update "2005 - Release 1"), para. 8.5: "The assumption of the [Supreme Court of Canada], which is shared by the Canadian bar, is that, wherever variations can be avoided, Canadian law, whether federal or provincial, should be uniform." See Lake Erie & Detroit River Railway v. Marsh (1904), 35 S.C.R. 197 (S.C.C.): "We think it was the intention of the framers of the Act creating this court that a tribunal should be established to speak with authority for the Dominion as a whole and, as far as possible, to establish a uniform jurisprudence, especially within matters falling within section 91 of the B.N.A. Act, where the legislation is for the Dominion as a whole, or, as I have said, where purely provincial legislation may be of general interest throughout the Dominion." On the role of the Supreme Court with regard to the civil law, see F. Allard, "The Supreme Court of Canada and Its Impact on the Expression of Bijuralism", loc. cit., footnote 461; and L. Lebel and P.-L. Le Saunier, loc. cit., footnote 461. See also the studies published in Gerard-A Beaudoin (ed.), La Cour supreme du Canada - The Supreme Court of Canada, Cowansville, Quebec, Éditions Yvon Blais, 1986. For further study of the subject, it is worth consulting the bibliography published in Luc Huppe, Le régime juridique du pouvoir judiciaire, Montreal, Wilson & Lafleur, 2000, pp. 51 et seq.
  • [466] On the power of judges to make law, which differs in the two systems, see, for a start, Gisèle Laprise, Les outils du raisonnement et de la redaction juridique, Montreal, Éditions Thémis, 2000; Albert Mayrand, "L'autorité du précédent au Québec", in études juridiques en l'honneur de Jean Beetz, (1994) 28 R.J.T. 773; Pierre-Gabriel Jobin, "Les réactions de la doctrine à la creation du droit par les juges : les débuts d'une affaire de famille", (1980) 21 C. de D. 258; Adrian Popovici, "Dans quelle mesure la jurisprudence et la doctrine sont-elles source de droit au Québec ?", (1973) 8 R.J.T. 189.
  • [467] Arthur Rimbaud, A Season in Hell, "Farewell" [translation: Paul Schmidt]: ". One must be absolutely modern. / Never mind hymns of thanksgiving: hold on to a step once taken. A hard night! Dried blood smokes on my face, and nothing lies behind me but that repulsive little tree! . The battle for the soul is as brutal as the battles of men; but the sight of justice is the pleasure of God alone."
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