An Introduction to Canadian Private Law: Common, Civil & Mixed Professor David Lametti Faculty of Law PLAN
I: A Brief Introduction to Canada II: An Introduction to Canadian Law III: An Overview of Canadian Private Law IV: Quebec Civil Law VI: Civil Law Property (skip) V: Common Law Property (skip) Postscript: McGills role in Quebec Civil Law (skip) I: A Brief Introduction to Canada
10 provinces, 3 territories across the North Most recently territory: Nunavut (1999) 35 million people 6 million in Quebec Language & Culture Mainly English-speaking, but: One officially French speaking province (Quebec), with large anglophone, allophone minorities One officially bilingual by choice (NB) One officially bilingual by judicial decision
(Manitoba); Manitoba Language Ref. (SCC 1984) One functionally bilingual with about 1 million francophones (Ontario) Pockets of French speakers in Manitoba, Sask, Alta, NS francophones hors Qubec Aboriginal Peoples Many peoples (Nations, tribes, etc.) First Nations with varying practices from sedentary agriculture to nomadic hunters and fishers Some came to treaties with the English settlers (no formal
treaties with the French); others never did, especially in Quebec and British Columbia Indian Act: status Indian and Mtis MANY outstanding legal issues (more later) Not a nice part of our history (Non una bella storia) Settlement Patterns French came first; Jacques Cartier discovered in 16th Century Fish and furs Settlements in Acadie, then Quebec City and
Montreal in 17th century (Samuel de Champlain) Other pockets of settlement in Ontario, West Brought French language, Catholicism, precodal Civil law Settlement Patterns (2) English came next Newfoundland (fish) Began to settle south of the border (the 13 colonies), crept northward And around James Bay creeping southward, in search of furs
Settlement Patterns (3) Inevitable conflict; Natives took sides English conquered Acadie & expelled the Acadians (1758), New France (1759), Treaty of Paris (1763) English brought English language, governance institutions, Protestant religions, a more complex, mercantile trading structure, common law
Population and Expansion 1867: British North America Act creates Confederation, Dominion of Canada 4 provinces: Ontario, Quebec, New Brunswick and Nova Scotia Successive provinces carved out of territories of Ruperts Land (Hudson Bay Company) and North West territory Canada 1867
Canada 1871 Canada 1905 Immigration English, Irish Turn of the century Germany, Ukraine, Europe (Italy) Post-War:
Europe, especially Italy, Greece, Portugal 70s: South-east Asia, South Asia More recent: Africa (esp. French-speaking), Caribbean, South America, Asia, etc. Immigration Profound impact on country; changing character Multicultural mosiac, enshrined in Charter of Rights and Freedoms
Strong tendency to keep mother tongues Strong tendency towards tolerance World Cup, European Cup are arguably more fun in Montreal and Toronto! Our neighbour to the south Overwhelming impact throughout Canadian history Preponderant Political, Economic, Social, Cultural impact Created interesting cultural reactions
a mouse in bed with and elephant: be careful when the elephant rolls over! Canadian Context Pluralistic Culturally, socially, linguistically, politically Large country Relatively under-populated (space for tolerance)
II: An Introduction to Canadian Law Federal system Federal statutes and regulations Provincial statutes and regulations How these evolved? Some detail Back to History French brought Civil law
Pre-codal, Coutume de Paris was the law of the colony Seigneurial (feudal) system in place resembling manorial legal system in Europe; seigneurial courts Arrival of the English Common law in Nova Scotia, Newfoundland, New Brunswick; not feudal (land grants in fee) (but in Quebec, confusion!) Unlike Acadia, English moved quickly to
guarantee the French language, Civil law, Roman Catholic religion in Quebec Treaty of Paris 1763 Quebec Act 1774 British North America Influx of United Empire Loyalists from the US after 1776 New colony: Upper Canada split from Lower Canada But even within Quebec, UELs were given
land grants in free and common socage (fee) and used the common law Formal reception of common law Civil Code of Lower Canada 1866
Based on Napoleonic Code of 1804 Classical lines of civilian tradition Drafted in both English and French Confederation 1867 Table is set by historical context Partly written constitution; partly unwritten Unwritten: parliamentary tradition, rules and procedures Written: division of powers
Canada 1867 BNA Act, 1867 (now Constitution Act,1867) Act of the British Parliament Division of Powers: S. 91: federal powers Peace, Order, and good Government of Canada Trade and Commerce Banking, Incorporation of Banks, and the Issue of Paper Money
Bankruptcy and Insolvency. BNA Act, 1867 (2) Patents of Invention and Discovery, Copyrights Indians, and Lands reserved for the Indians The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters Residual category BNA Act, 1867 (3)
S. 92: provincial powers The Incorporation of Companies with Provincial Objects Property and Civil Rights Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
Public Law Federal: Constitutional Criminal (from English common law, but codified) Administrative Income Tax Aboriginal matters Private Law Provincial
property and civil rights But the following are federal Bankruptcy Trade and commerce IP (patent and , but also TM) Therefore overlap, formal mixing, even in Quebec Quebec jurists know a great deal about the common law
Private Law (2) Quebec: Civil law Civil Code of Lower Canada had been enacted the previous year, 1866 Other provinces: common law Reception was both formal and informal Courts The Court System itself : s 92 Provincially run BUT
96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Courts (2) Each province (s.96): Superior court of general jurisdiction First court in all kinds of cases Appeal Court (s.92) Lower courts for minor matters Traffic offences, minor disputes Effectively a common law model, even in Quebec
Courts (3) Supreme Court of Canada: A s.101 court 9 judges, traditionally 3 from Quebec Other traditional balances: 3 from Ontario, 2 from the West, one from the East 5 judges on Civil law cases (3 Quebec + 2 others) Some appeals as of right, the rest by way of leave to appeal
Courts (4) Federal Court of Canada: Also a s.101 court Different divisions: (1) Tax (old exchequer court) (2) Federal Court: IP, aboriginal matters, administrative law and tribunal review Federal Court of Appeal Courts
Supreme Court of Canada (Fed) Federal Court of Appeal (Fed) Federal Court Trial Division
(Prov.) Cour de Qubec (Prov.) Legal Professions and Education Common law provinces Barristers & solicitors, but unified in powers Specialization in some practices depending on size of firm and location
Education: North American model Second or third degree; no recommended prior degree Effectively a type of graduate (UK: post-graduate) education All English, though Common law in French at Moncton (NB), Ottawa and also McGill (de facto) Legal Professions and Education (2) Quebec Avocats and notaires
Education: European model Usually a first degree; entry after Junior College (CEGEP) Exception: McGill Very few CEGEP entrants (20-30/170) Mainly degree holders All education in French language except McGill, where it is done in both (traditional English Civil law school)
Legal Professions and Education (3) Judiciary English Common law model: 10 years after call one is eligible Fiercely independent and high-quality Especially SCC: highly scrutinized, though not part of formal process (yet) Frank Iacobucci (first Italian Canadian SCC judge from 1991-2004)
Future of Canadian Law? Still important changes to come Unfinished constitution re Quebec: some symbolic recognition as a distinct society or people is probable (French language & culture, Civil law); but will this amount to legal powers? Aboriginal peoples: symbolic as well as real legal powers over resource management, criminal procedure, social structure Western alienation: power changes as population increases Added to ongoing evolution of private law
III: An Overview of Canadian Private Law Common Law in the 9 provinces; received usually in a formal statute, as of a certain date Civil law in Quebec (but with a common law style administration; both courts and judges) What of the Civil law itself?
Common Law Generally an English-inspired common law system + Equity Provincial Legal rules still mainly un-codified; found in the cases Supplemented by statutes Pleading and factum-writing is common law Common Law (2) Doctrine of Precendent
binding and persuasive authority Bound within ones own province, SCC Other provincial Courts of Appeal very persuasive, other courts persuasive Common Law (3) House of Lords and English Court of Appeal decisions are still very persuasive authority Other major common law jurisdictions: US, Australia
No civil law trials by jury Common Law (4) Substantive law: more British-looking than American No Restatements British-inspired Sale of Goods Act Still no strict liability (English position preEU Directive) Common Law (5) Exceptions where US has been influential:
Class actions (Quebec since 1978; 1992 in Ontario; other provinces adopting legislation) Punitive damages (but still less than US) Secured lending: UCC- inspired (Article 9) system in provincial PPSAs Common Law (6) Law of Property Much like the UK, pre-1925 Property estates (mainly fee simple, life estate) Leaseholds, but traditional leaseholds in the English
experience not common Innovation on trusts Use of the constructive trust perhaps more common in Canada than UK Civil law: economic loss, good faith Civil law CCLC: 1866 Codification by three collaborators: two
francophones, one anglophone Drafted in either English or French and then translated Classic lines: persons, things, obligations Followed the CN But had a section on corporate law (later excised) Civil law (2) Distinctively civilist code Institutions would be familiar to most civilian
jurists Property institutions, Obligations (Contracts and civil responsibility) Civil law (3) La doctrine Also classically Civilist Commentary on the Code, furnishing examples and clarifying texts Primarily in French, but also English Also looked to French doctrinal texts, Pothier,
frres Mazeaud True today with Carbonnier, Terr & Simler Civil law (4) La doctrine au Qubec Now some very established traditional texts Jean-Louis Beaudouin on Obligations D.-C. Lamontagne on Biens (previously Marler, an English-language text on property) also scholarly articles in both languages
Civil law (5) Common law influence Procedurally Judges act like common law judges; do not inquire; adversarial Cases: reported from the beginning Treated as authoritative from the beginning Common law way of thinking Civil law (6) Common law influence
Doctrinally too Doctrines under constant scrutiny Ex: secured lending in CCQ is similar to PPSA and UCC article 9 Damages: the norm in compensation in practice Recommended reading: Quebec Civil Law, edited by Brierley & Macdonald Civil law (7) Common law intrusions
The trust Very powerful, very wealthy anglophone community in Montreal that wanted to use the trust, often for beneficial purposes (many McGill-related trust cases, including the main building which houses the Law Faculty!) Trust provisions added very early on to CCLC Civil law (8) The Trust Defined skeletally, only in terms of its powers,
etc No mention of patrimony No mention of ownership Courts: eventually ruled that trust corpus was owned by the trustee, but said nothing about the patrimony Common law: used to fill out the body of rules relating to trusts in Quebec Civil Code of Quebec 1991-4 Long process of reform
History/inspiration Rise of Quebec nationalism Some sense of pride in the Civil law as a distinctive part of Quebecois culture (along with language and religion, though like France is very secular) Some sense that this tradition was under threat (like language) Civil Code of Quebec 1991-4 (2)
Civil Code Revision Office Draft Civil Code (Prof. Paul-Andr Crpeau) Family law parts implemented quickly Others languished in the 70s and early 80s Finally whole code re-written, rather hastily in the late 80s by fonctionnaires and only in French; passed in 1991; promulgated in 1994 Civil Code of Quebec 1991-4
(3) French version very wordy, inelegant English translation poorly and hastily done Government argued that the French version was authoritative SCC: Dor c. Verdun, Brierley, Boodman, Kasirer et al. (1997) corrected this: both languages official Government has since taken steps to improve the English text
CCQ Most important element of Quebec Civil Law 10 books: persons, family, successions, property, obligations, prior claims and hypothecs, evidence, prescription, publication of rights, PrIL But also doctrine and cases, droit commun, older statutes Also a Code of Civil Procedure CCQ (2) Attempts to modernize certain doctrines
Resolution of option-cumul debate: 1458 CCQ Bound by the contract (Crpeau) Foreseeability of damages (contract foreseeable; direct and immediate) Codification of PrIL (mainly judge-made in France; very European Swiss PrIL, Hague Conventions CCQ (3) Attempts to modernize certain doctrines
Products liability: copies European Directive Economic loss is allowed: Spar Aerospace Secured lending Property: trust, usufruct, substitution, divided co-ownership (condos) Some attempt to codify basic doctrines Conclusions: Canadian Private Law 9 common law jurisdictions, 1 mixed
Virtually all of the influence runs one way Common law (SCC) has flirted with economic loss in a number of cases, but it is not clear Otherwise, little Civil law influence on the common law Vast majority of anglophone Canadians do not speak French Canadian Private Law (2) Most likely trend is increasing influence of US common law and especially via statutes,
arbritration mechanisms in the FTA and NAFTA on all jurisdictions Economies are increasingly integrated (Will Civil law in Mexico have a moderating influence on US legal expansion/influence?) Quebec Civil Law (1) Future of Quebec Civil law? Is the mixed jurisdiction sustainable? Mixed? Or just mixed up?!
Quebec Civil Law (2) Factors pointing to sustainability? Positive: Pride, Tradition and Language Part of how Qubecois define themselves; socit distincte, un peuple, un pays Language keeps active ties to Continent; lawyers and universitaires (unlike Louisiana, for example) Quebec Civil Law (3)
Modern Civil law in a mixed system Quite exportable, especially because of French & English, affinity with common law Strong future, VERY-well entrenched in Quebec and in Canada
IV: Quebec Civil law CCQ, cases, doctrine, CCLC and previous statutes French influence, common law influence, other European influence, but not much yet BGB ? PRELIMINARY PROVISION The Civil Code of Qubec, in harmony with the Charter of
human rights and freedoms and the general principles of law, governs persons, relations between persons, and property. Le Code civil du Qubec rgit, en harmonie avec la Charte des droits et liberts de la personne et les principes gnraux du droit, les personnes, les rapports entre les personnes, ainsi que les biens.
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. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make
exceptions to it. Le code est constitu d'un ensemble de rgles qui, en toutes matires auxquelles se rapportent la lettre, l'esprit ou l'objet de ses dispositions, tablit, en termes exprs ou de faon implicite, le droit commun. En ces matires, il constitue le fondement des autres lois qui peuvent elles-mmes
ajouter au code ou y droger. CCQ: Basic Doctrines & Rights 1. Every human being possesses juridical personality and has the full enjoyment of civil rights. 1. Tout tre human possde la
personnalit juridique; il a la pleine jouissance des droits civils. CCQ: Basic Doctrines & Rights (2) 2. Every person has a 2. Toute personne est
patrimony. titulaire dun patrimoine. That patrimony may be divided or appropriated to a purpose, but only to the extent provided by law. Celui-ci peut faire lobjet
dune division ou dune affectation, mais dans la seule mesure prvue par la loi. CCQ: Basic Doctrines & Rights (3) 3. Every person is the holder of personality rights, such as the right to the inviolability and integrity
of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable. 3. Toute personne est titulaire de droits de la personnalit, tels le droit la vie, la inviolabilit et
lintgrit de sa personne, au respect de son nom, de sa rputation et de sa vie prive. Ces droits sont incessibles. CCQ: Basic Doctrines & Rights (4) In our view, the right to ones image, which has an extrapatrimonial and a patrimonial
aspect, is an element of the right to privacy under s. 5 of the Quebec Charter. Aubry v. Vice-Versa,  S.C.C CCQ: Basic Doctrines & Rights (5)
Still very much civilist in both spirit and letter Some significant attempts to modernize Some recognition of context, especially proximity to the common law Registration systems: immovables, and now movables (Computer and internetbased) V: Common Law Property Historical Context: History of Common Law Property, Local Conditions, Reception,
Overlap with Aboriginal rights The Domains of Common Law Property Overlapping Domains PUBLIC & PRIVATE The Domains of Common Law Property Overlapping Domains
PUBLIC & PRIVATE ABORIGINAL Aboriginal Rights Of increasing significance, symbolic and economic S. 35: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada"
includes the Indian, Inuit and Mtis peoples of Canada. Landmark Aboriginal cases Delgamuukw (1997): Aboriginal Title, Interpretation Van der Peet (1996), Sparrow (1990): Aboriginal Rights Powley (2003): Mtis rights case Impact is really quite important; forcing negotiations between governments and aboriginal peoples??
Landmark Aboriginal cases Delgamuukw (1997): Aboriginal Title, Interpretation Van der Peet (1996), Sparrow (1990): Aboriginal Rights Powley (2003): Mtis rights case Impact is really quite important; forcing negotiations between governments and aboriginal peoples?? Common Law Property
Reflects HISTORY of CL and Equity Reflects the law of property at the date of reception Means that some English reforms may not be incorporated (1925, but also previous Acts!) But some reception statutes restricted to local conditions, such that some classic statutes (Quia Emptores 1290, Statute of Tenures 1660) might not apply Reflects specific Imperial Statutes Reflects ongoing absorption of English (and to a lesser extent US, Australian, NZ) common law
Structure of Common Law Property Real versus Personal Property Realty: Doctrine of estates; held of the Crown Personalty: held directly, absolute Realty or Real Property Corporeal (hereditaments) (possessory) estates
Incorporeal (non-possessory): (iura in re aleina) easements, profits prendre, restrictive covenants Corporeal Hereditaments Freehold Estates: Fee simple, free and common socage: most absolute Life estates No fee tail
Protected by real action Personalty or Personal Property Chattels Personal Chose in possession (tangible) Chose in Action (intangibles such as shares, debts, bonds, promissory notes and now IP) Chattels Real Leasehold Estates Protected by writ of ejectment
VI: Civil Law Property Historical Context: Domains Legal Context: Public Law, Civil Code of Quebec & Emerging notion of Aboriginal Title and Aboriginal Rights The Domains of Quebec Civil Law Property Overlapping Domains
PRIVATE (Civil Law) The Domains of Quebec Civil Law Property Overlapping Domains PUBLIC (Common Law) PRIVATE The Domains of Quebec Civil Law Property
Overlapping Domains PUBLIC (Common Law) PRIVATE (Civil Law) ABORIGINAL Aboriginal Interests: Few treaties in Quebec!! Aboriginal Rights: rights often tied to practices on land Aboriginal Title: interests in land
Reserve Lands: Mohawk, Cree, Huron, Innu, Innuit Few historical treaties; recent ones with the James Bay Cree over hydro-electric resources 947 Ownership Co-ownership  Special Modes
Superficies  Real Rights Patrimonial Rights Usufruct  Dismemberments Personal
Rights  Emphyteusis  Servitude  Extra-patrimonial Rights [Aubry v. Vice-Versa]
Innominate Real Rights? Ownership: Basic Provision 947. Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law.
947. La proprit est le droit duser, de jouir et de disposer librement et compltement dun bien, sous rserve des limites et des conditions dexercice fixes par la loi. Ownership may be in various modes and
dismemberments. Elle est susceptible de modalits et de dmembrements. Divided Co-ownership Conflicts with the Charter & with the law of contractual obligations? Anselem (2004) SCC Posh condo units in an area of Montreal with a very
large orthodox Jewish population Condo rules say no structures on balcony; Anselem: Sukkah erected for Jewish holiday Sukkot Contract of purchase; freedom of religion creeps in Limited Real Rights 1119. Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership
and are real rights. 1119. Lusufruit, lusage, la servitude et lemphytose sont des dmembrements du droit de proprit et constituent des droit rels. (Real) Servitude
1177. A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner. Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.
A servitude extends to all that is necessary for its exercise. 1177. La servitude est une charge impose sur un immeuble, le fonds servant, en faveur dun autre immeuble, le fonds dominant, et qui appartient un propritaire diffrent. Cette charge oblige le propritaire du fonds servant supporter, de la
part du propritaire du fonds dominant, certains actes dusage ou sabstenir lui-mme dexercer certains droits inhrents la proprit. La servitude stend tout ce qui est ncessaire son exercice. (Real) Servitude (2) Restraint of trade clauses Steinberg servitude
Standard Life: Quebec Court of Appeal (2004) Not a real servitude as it does benefit the immovable Property: Common vs Civil Novel claim? Personality Right Spleen IP rights
Difference in substance; method Attitude: Haldane vs Mignault on numerus clausus Numerus Clausus? Matamajaw case Quebec case, through Supreme Court all the way to the Judicial Committee of the Privy Council Sir George Stephen, Lord Mount Stephen buys a right to fish for $25,000 Cdn in late 19th
century Matamajaw: Comparative Judicial Method Civilians: fit in the categories and see Was this a species of co-ownership? Did contract create a usufruct, real servitude? Common lawyers: why not? Intention of parties Was it meant to be permanent?
947 Ownership Co-ownership  Special Modes Superficies  Real Rights
Patrimonial Rights Usufruct  Dismemberments Personal Rights 
Emphyteusis  Servitude  Extra-patrimonial Rights [Aubry v. Vice-Versa] Innominate Real Rights? Numerus Clausus ?: No
SCC: Migneault: a usufruct, but then would end when Lord Mount Stephen dies (Stephen dies) On to Privy Council for a trial by His Peers Viscount Haldane; actually confused concepts thought a usufruct as a personal right (personal sertivude still used in Quebec civil law for usufruct & use, emphy.); thought this was a real right of servitude Result: new innominate right analogous to a profit-prendre in the common law Common law analysis, and way of thinking
Trusts Trusts have always been popular in Quebec: wealthy anglophones expected to be able to use them Added to CCLC in late 19th Century CCLC approach: no ruling on patrimony, Tee is effectively the owner Now in CCQ CCQ approach: no owner, just a listing of rights, powers, responsibilities
Patrimony affected to a purpose Trusts 1260. A trust results from an act whereby a person, the settlor, transfers property from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and
administer. 1260. La fiducie rsulte d'un acte par lequel une personne, le constituant, transfre de son patrimoine un autre patrimoine qu'il constitue, des biens qu'il affecte une fin particulire et qu'un fiduciaire s'oblige, par le fait de son acceptation, dtenir et administrer.
1261. The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. 1261. Le patrimoine fiduciaire, form des biens transfrs en fiducie,
constitue un patrimoine d'affectation autonome et distinct de celui du constituant, du fiduciaire ou du bnficiaire, sur lequel aucun d'entre eux n'a de droit rel. Trusts (2) Other provisions describe powers without elaborating on concept Unique: practical, functional, aconceptual However, still looks like some sort of real
right A Civil law Trust? Common law & Equity will still be used to fill in gaps Postscript: McGills role in Quebec Civil Law (A mixed law school in a mixed jurisdiction) Traditionally anglophone, Civil law faculty Leading scholars & jurists Experiment teaching common law in the 1920s failed for political
reasons 1960s: began teaching common law as well as Civil law 1980s: more integrated teaching; still two degrees 1999: integrated, trans-systemic programme taken by all students leading to two degrees Teaching in English (75%) and French (25%) to a very diverse population Grazie Domande? [email protected]
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