S-4: A FIRST HARMONIZATION BILL

By Marie-Noëlle Pourbaix[1],
Legal Counsel
Civil Code Section,
Department of Justice Canada

Canadian bijuralism and the harmonization of federal legislation with the civil law of Quebec have already generated volumes of print. The meritorious qualities ascribed to Canada's legal duality have, with good cause, been the subject of praise in numerous discussions and articles. The purpose of this paper is, however, neither to review such commentaries nor to re-examine the origins and benefits of bijuralism but rather, it focuses on one specific result of the Harmonization Program: Bill S-4, Federal Law-Civil Law Harmonization Act No. 1.[2] This bill is particularly noteworthy since it will, if passed, represent a pioneering legislation in the field. Its predecessor, Bill S-22[3], died on the Order Paper as a result of the Fall 2000 elections, but not without having first paved the way for its succession by the positive impression it produced in Parliament. The vast majority of the senators present for the bill's consideration in Committee[4] responded very favourably to both the full endorsement given by the Minister of Justice and the innovation of its content.

It should be noted at the outset that this paper is intended to be descriptive rather then argumentative in tone. Also, the author having contributed to the harmonization proposals which are described cannot be expected to provide an objective critique and so, the task of critically reviewing the content is left to others. It is, nevertheless, appropriate to say a few words on the origins of the subject under consideration and we begin Part 1 with a brief summary of background information critical to an understanding of the initial results of harmonization. Part 2 addresses the principal subject matter, focussing on the main elements comprising Bill S-4.

1. Origins of Bill S‑4

In anticipation of the coming into force of the Civil Code of Quebec on January 1, 1994 and of the effects of the new Code on the application of federal law in the Province of Quebec, the Department of Justice of Canada established in 1993 a team of jurists, the Civil Code Section, to study those effects. The Section's jurists quickly ascertained that federal legislation would require amendment to reflect the new Civil Code vocabulary and concepts.

Following on this determination, it was necessary to decide how to go about harmonizing federal legislation with the new civil law of Quebec. The first stage, which seemed obvious to everyone, was to select which of the statutes should be harmonized (1.1). Then, since it was necessary to start somewhere, initial expertise was developed in three areas of law (1.2). The first results of these harmonization efforts materialized in 1998 with the tabling of Bill C‑50 (1.3), which died on the Order Paper and was reintroduced two years later, with amendments and numerous additions, as Bill S‑22 (1.4). Each of these stages is explained in greater detail below.

1.1 Selecting Federal Statutes for Harmonization

The body of federal legislation comprises more than 700 statutes, each of which will eventually have to be considered individually to determine whether it applies to Quebec or relies on the civil law of Quebec as supplementary law. In an initial review, the Civil Code Section determined that nearly 350 statutes might apply to Quebec, some of which were selected to be the target of initial harmonization efforts based on various criteria. Those criteria varied from the frequency of use of the act to the degree of difficulty it represented. Once the selection was made, the harmonization process began.

1.2 Developing Expertise in Three Areas of Law

The harmonization process is an innovative one. At the start of this initiative, there were no handbooks defining a process or prescribing a methodology to follow.[5] It was therefore deemed wise to begin by developing expertise in only three areas of law: property, security and civil liability law. The statutes selected for harmonization were reviewed only in light of these three areas, which explains why most of the statutes referred to in Bill S‑4 are partially harmonized. They will ultimately be further examined and harmonized in light of the remaining areas of civil law.[6] Once fully harmonized, proposed legislative amendments concerning those statutes will be submitted as part of a new harmonization bill.

The development of this expertise, it should be understood, has not occurred in isolation. The Civil Code Section has worked and is continuing to work in close cooperation with the departments responsible for administering the statutes concerned and with the Legislative Services Branch of the Department of Justice. In addition, the Section has often drawn upon the services of well respected university professors.[7] Prior to the first tabling of the harmonization bill, on June 12, 1998, the Minister of Justice had instituted exhaustive public consultations in which many groups from the Quebec legal community took part, in particular the Barreau du Québec, the Chambre des notaires du Québec and representatives of the Canadian Bar Association (Quebec Section). It is not an exaggeration to say that the harmonization bill generated a consensus within the legal community, and it was the pooling of all this expertise that ensured its success.

1.3 Bill C‑50

The very first harmonization bill was born on June 12, 1998. In retrospect, it was the present Bill S‑4 in embryonic form setting out its basic constituents. For example, the amendments to the Interpretation Act [8] were already there, as were those to the three pilot statutes, the Federal Real Property Act,[9] the Bankruptcy and Insolvency Act[10] and the Crown Liability and Proceedings Act.[11] It also amended some 20 miscellaneous statutes in relation to the three aforementioned areas of law. Bill C‑50 received a first reading in the House of Commons but died on the Order Paper when the House was prorogued.

1.4 Bill S‑22

Bill S‑22 was the successor to Bill C‑50. It was tabled in the Senate on May 11, 2000. In essence, it restated the content of Bill C‑50, with some amendments which had become necessary as a result of comments received during the second public consultation[12] and recent changes to the Civil Code of Quebec.[13] It also contained proposed amendments to 25 additional statutes, once again relating to property, security and civil liability law.

Bill S‑22 reached second reading and was referred to the Senate Committee on Legal and Constitutional Affairs, which met to discuss it on June 14, 2000. This enabled the Minister of Justice to provide a substantive presentation of the bill to those senators attending. In consequence, parliamentarians were afforded their first opportunity to learn about the harmonization effort at first hand. In general, the senators received it enthusiastically.[14]

Upon Parliament's dissolution in the Fall of 2000, Bill S‑22 also died on the Order Paper. However, the hope of seeing the birth of harmonized legislation did not die. At the opening of the following Parliamentary session, the bill was re-tabled. As of January 31, 2001, it bears the designation S-4.[15]