BIJURALISM IN SUPREME COURT OF
CANADA JUDGMENTS SINCE THE ENACTMENT
OF THE CIVIL CODE OF QUEBEC

By Louise Lavallée*, Legal Counsel
Legislative Services Branch,
Department of Justice Canada

Introduction

Although the term bijuralism came into usage only rather recently, it is acknowledged that the foundations of its existence date back to the early days of colonization in Canada. Since then, the legal landscapes of the common law and civil law have succeeded each other, and then been superimposed on each other, in such a way as to lay the groundwork for a distinctive legal framework.

It was with the creation of the Supreme Court in 1875, which coincided with the establishment of major national institutions, that the federal parliament took control of the development of law at the federal level. At that time, the federal character of the Supreme Court initially affirmed itself by a desire to create a uniform legal system based on a fusion of the legal sources emerging from the country's two major legal traditions. In the Court's view, the obligation to take into account the effect of its decisions on all provincial jurisdictions was justification for adopting such an approach. The comments of professor Glenn on page 205 of his article "Le droit comparé et la Cour suprême du Canada" (in Mélanges Louis-Philippe Pigeon, Ouvrages collectifs, Wilson Lafleur, Montreal, 1989, pp. 200 to 214) attest to the optimism of the time in relation to the unifying and constructive mission the Court had taken on:

[translation] The Supreme Court, a national institution with a national mission of unification, would naturally turn to the new science of comparative law to eliminate the artificial barriers between civil law and common law in Canada in order to establish a new Canadian common law.

Unfortunately, for various reasons, and often simply as a matter of political will, the concept of standardization developed largely in a unilateral rather than a reciprocal manner. As it happened, the concepts of common law were widely applied and very few instances of borrowing from civil law were noted. Professor Baudoin makes note of this fact in his article entitled "L'interprétation du code civil québécois par la Cour suprême du Canada", (1975) 53 Can. Bar Rev. 715, on page 75: [translation] "Unification during these periods took place essentially in one direction only. Although it would have been eminently advantageous to have been so, it was in no way a true exchange between the two systems."

In the middle of the twentieth century, however, with the appointment of new justices from Quebec in particular, a certain equilibrium was restored, thereby controlling the massive infusion of common law concepts into matters of civil law. The Court abandoned its objective of unification and officially renounced the idea of the existence of a general federal common law. It gradually confirmed that, in matters of Canadian private law, common law and civil law were two legal systems that were complete in themselves, each with its own legal autonomy. Professor Glenn offers the following explanation on page 211 of his above-mentioned article:

[translation] Since at least the middle of the century, it has become clear that the Supreme Court has definitively renounced that idea of national unification of the law and the idea that comparative law must serve to establish new rules that are exclusive and imperative. This change came about initially through a new recognition of the sources of civil law, notably Quebec and French doctrine, and by an acknowledgment of the impossibility of systematically discounting an entire corpus of rules of which the quality and coherence does not suffer in any way from a comparison with the common law.

From that moment on, the Court focused on establishing the boundaries that were to limit public law and private law because, although the common law makes no distinction between these two notions, in Quebec civil law applies exclusively to matters of property and civil rights and common law to all other areas (unless otherwise prescribed by statute).

The Court is still defining the limits of those boundaries today. Recent judgments reiterate the fact that administrative law, such as municipal law, derives from public law and that the resulting conflicts must be resolved in light of the principles that govern the common law.

When it is a question of private law, in matters relating to property and civil rights, notably civil liability, labour law, insurance law and family law, the Court has come out in favour of applying each legal tradition according to the province in question.

From this perspective, we found it interesting to take stock of the recent Supreme Court judgments that deal with some aspect of the principles governing each of Canada's legal systems. We decided to limit this review to judgments dating from the enactment of the Civil Code of Quebec to today, that is, from 1994 to 2000, which at the same time will shed light on the short-term impact of this new legislative enactment on the Court's decisions.

The objective of this paper is to discuss decisions that mention the terms "civil law" and "common law", whether it was to establish the difference or similarity between concepts in the two systems, to compare notions in order to favour one approach rather than the other, or to create a new standard based on the systems that currently exist.

We grouped those judgments relating to rights of the individual first, in light of their general application, and then grouped cases relating to civil liability, followed by those on family law, and finally by those dealing with contract law.

* The author is a legislative drafter with the Regulations Section of the Legislative Services Branch of the Department of Justice Canada. She would like to thank the Legislative Services Branch and the Department's Civil Law and Corporate Management Sector and the Civil Code Section for providing the opportunity for this publication. Thanks are also extended to France Allard, whose expertise in comparative law and whose support made the publication of this article possible, to John Le Garignon for his help in researching the legal precedents, to Nathalie Lacroix for the page layout and to the Jurilinguistic Services Unit of the Legislative Services Branch for the revision of the french and english versions of the text.