BIJURALISM IN CANADA :
HARMONIZATION AND TERMINOLOGY

III. Harmonization methodology[8]

First of all, the purposes of the harmonization program are: to ensure that the federal legislative corpus adequately reflects the concepts and institutions specific to Quebec civil law; and to ensure that federal legislative amendments take French common law terminology into account.

The harmonization process includes exploration of fields that include statutory interpretation, constitutional law, private law in both the civil law and common law traditions, and comparative law. The harmonization process is divided into four stages.

1. Initial verification

Before beginning to study an enactment for harmonization purposes, the enactment must be verified to ascertain whether it applies in Quebec.

Some legislation and regulations apply only in certain provinces or territories. A statute such as the Yukon Act,[9] for example, may not apply in Quebec. Thus it is appropriate to verify at the outset whether the enactment is applicable in whole or in part in Quebec.

2. Verification in context

Study of an enactment includes study of its legal and political context and thus, firstly, of the constitutional distribution of powers between the federal Parliament and the provincial legislatures.[10] The applicable authorities and case law must be consulted on the constitutional points raised by the enactment being studied.

Not only constitutional but also political background forms part of an enactment's context. An indication of Parliament's intent can be found in the preamble to the enactment, which usually describes the objectives sought in bringing the enactment into force, and in the speech of the Minister sponsoring the enactment when it was tabled as a bill in the House.

The enactment being studied may have been intended to implement an international treaty to which Canada is a signatory, and may incorporate the treaty provisions in whole or in part. This must be kept in mind in the context of harmonization.

Once the contextual verification has been completed, it must be determined whether Parliament intended to make complementary use of provincial law or to dissociate itself from provincial law, in other words, whether there is complementarity or dissociation.

Complementarity

Unless there is a legal rule to the contrary, provincial legislation complements federal legislation in property and civil law matters. This situation is referred to as complementarity, or suppletive application of provincial legislation. For example, although the federal Parliament has exclusive jurisdiction over bankruptcy and insolvency, it often refers to the concepts of security and securityship developed in provincial private law, particularly in matters involving the notion of distribution.[11]

In situations of complementarity, reference must be made to the rules, principles and concepts in force in the province at the time the federal enactment is being applied. Clause 8 of Bill S-4 provides for this principle to be included in section 8.1 of the Interpretation Act.[12]

Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

As a result, when a federal enactment is applied in Quebec, it is clear that civil law, not common law, is to complement the federal enactment in property and civil law matters. Similarly, of course, common law is the suppletive law to federal legislation in the other provinces and territories.

Dissociation

When a legal rule prohibits suppletive application of provincial legislation, the situation is referred to as dissociation.[13]

For instance, the definition of "Canadian maritime law" in section 2 of the Federal Court Act expressly excludes the application of private law in the following terms:

"Canadian maritime law" means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this Act or any other Act of Parliament.

Enactments to be harmonized

Federal enactments showing complementarity with or dependence on provincial private law are to be harmonized with Quebec civil law. On the other hand, "stand-alone" enactments, which make no reference to provincial private law concepts, are considered dissociated from Quebec civil law. Although, exceptionally, full dissociation is possible, usually dissociation is partial in that it involves only certain parts or provisions of an enactment.

In some cases, whether an enactment refers to provincial private law can be ascertained simply by reading it. In other cases, authorities and case law must be consulted to make this determination.

Typically, a federal enactment can relate to civil law in two ways: explicit dependence or implicit dependence.[14]

Explicit dependence

When an enactment contains an express reference to civil law or its specific rules, it is said to be explicitly dependent on civil law. For example, the Crown Liability and Proceedings Act provides as follows:

Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.[15]

Implicit dependence

When a federal enactment uses a civil law concept or term without assigning it a special meaning, there is said to be an implicit relationship of dependence with the civil law. This is also the case when Parliament fails to legislate on a private law matter that falls under its exclusive or ancillary federal jurisdiction. For example, the Crown Liability and Proceedings Act provides that:

The Crown is liable in tort for the damages for which, if it were a private person …[16]

In addition, terms defined in an enactment can raise specific problems in that, theoretically, they acquire their own meaning. Terms may be defined in four sources: the text of the act to be harmonized, its regulations, the Interpretation Act, and other federal acts on the same subject.[17]

Once a term is defined, additional terms contained in the definition may themselves be points of contact. In this case, the terms contained in the definitions must be noted as potential points of contact,[18] and enactments using the term and variants of it must be noted as well.[19]

A point of contact is a concept or term found in a federal enactment that refers to specific private law rules contained in provincial legislation or in case law on property or civil law matters.

3. Identification of points of contact with provincial private law

Once complementarity with provincial law has been established, terms in the enactment being studied that are points of contact with provincial private law must be identified. This stage is the beginning of the actual harmonization process that will eventually lead to the preparation of proposed federal legislative amendments.

Instances of unijuralism, or absence of points of contact, must also be noted, for example if a rule in an enactment takes only one legal tradition into account but does not dissociate itself from provincial law. For example, some enactments refer to the concept expressed by the terms "settlement of property"/"disposition de biens", a concept that is foreign to civil law. At this point, it must be determined whether Parliament did intend to dissociate the enactment from civil law or whether, the civil law concept should be added. Unijuralism may occur in only one language version of an enactment while the other version reflects both concepts.[20]

4. Study of points of contact

This stage of the harmonization process consists in verifying points of contact in context and comparing them with the common law, by taking the following steps.

(a) Preliminary verification of applicable civil law

As a result of the Quebec National Assembly's desire to adopt certain new concepts, such as prior claims, and to modernize legal language, the 1994 reform of the Civil Code of Quebec made conceptual and terminological changes in a number of areas of civil law. The specific purpose of preliminary verification is to identify and clearly understand the changes between old and new civil law concepts and terms.

(b) Contextual verification of the enactment

The purpose of contextual verification is to ascertain whether the meaning of new terms corresponds to the meaning intended by the legislature, by verifying in particular:

  • the historical evolution of the enactment;
  • Hansard or other sources such as position papers, statements by Ministers, and departmental documentation;
  • any applicable case law;
  • any parent legislation;[21] and
  • other federal legislation.

At the end of this step, before developing recommendations, there is one final step: comparison of civil law concepts with their common law equivalents.

(c) Comparison of civil law concepts with their common law equivalents

As is noted above, harmonization must be carried out with respect to the common law in both official languages: proposed changes in terminology must not affect the common law in either English or French. Therefore, in establishing conceptual and terminological parallels between the two legal traditions, the meaning of the common law concepts and terms contained in the enactment being studied must be verified.

The purpose of this verification is to find a way to bring terminology from two different legal traditions and two different languages together under one roof, so to speak, in the enactment being studied.

Harmonization proposals may, if necessary, include proposed French-language equivalents for common law terms. French-language common law terminology has been developed over the past 20 years under the auspices of the National Program for the Integration of the Two Official Languages in the Administration of Justice (POLAJ).[22] This new terminology is the result of research aimed at ensuring that there are French-language equivalents of common law concepts originally expressed only in English.

5. Development of recommendations

Once the preliminary verification, contextual verification, and comparison steps have been completed, it is time to develop harmonization recommendations. Usually recommendations will involve one or more of the following steps:

  • replacing the old term with the new one;
  • revising the wording of the enactment in accordance with the new term;
  • eliminating the old term if it is obsolete and if the context requires no further replacements; and
  • if necessary, proposing a French-language equivalent for a common law term.

After recommendations have been fully developed, the next step is the drafting of legislative amendments.