| |
|
PRIVILEGED............2
|
| worlds two major legal systems, bijuralism places Canada in a privileged position within the | 112 |
| always be privileged since simplicity and concision may be lost, notably in long tax provisions. | 382 |
| |
|
PRIVY.................1
|
| The Honourable Stéphane Dion, President of the Queens Privy Council for Canada and | 718 |
| |
|
PRIVÉ.................1
|
| André Ouellette Mathieu Legris, La place du droit privé au sein des lois fédérales : | 916 |
| |
|
PROBLEM...............3
|
| emergence of new terminology in bijural provisions might present a problem for the Anglophone | 396 |
| mortgage: the second problem was one of semi-bijuralism: the English version of the | 446 |
| survivorship. This concept does not exist in civil law. In order to correct the problem , the | 452 |
| |
|
PROBLEMATIC...........1
|
| ownership or beneficial ownership in the development of tax policy is problematic . It is | 388 |
| |
|
PROBLEMS..............6
|
| This article is followed by four in depth articles studying problems in the application of the Income Tax Act arising from differences in provincial private law. For example, the | 4 |
| It can readily be seen from these remarks that three types of problems are of concern in the | 344 |
| Brown, Mark Brender and Diane Bruneau have addressed such problems in their study of the | 348 |
| They have identified specific problems and attempts are made to develop equivalent concepts | 350 |
| Different drafting techniques can be used to correct harmonization problems . In each case, the | 364 |
| These bijural records briefly explain the harmonization problems found in the legislative | 418 |
| |
|
PROCEDURE.............1
|
| stated by Professor Ziff to the rules of civil procedure that governed litigation at common law | 198 |
| |
|
PROCEEDINGS...........6
|
| proceedings that relate to any death or personal or bodily injury. | 578 |
| Canada, Senate, Proceedings of the Standing Senate Committee on Legal and | 714 |
| See Canada, Senate, Proceedings of the Standing Senate Committee on Legal and | 886 |
| Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue | 892 |
| Faculty, Civil Law Section of the University of Ottawa in Canada, Senate, Proceedings of the | 896 |
| Canada, Senate, Proceedings of the Standing Senate Committee on Legal and | 908 |
| |
|
PROCESS...............5
|
| To better understand some of the issues that have to be addressed in the process of harmonizing | 162 |
| available will be to amend the law. Such a process can be both difficult and time consuming. | 172 |
| its scope and process to the revision of federal legislation that took place in the late s to | 324 |
| harmonization process : | 344 |
| chosen, section . was added so that the redrafting process does not give rise to any ambiguity | 562 |
| |
|
PROCLAMATION..........1
|
| under the Royal Proclamation , . Canadian bijuralism dates back to the Quebec Act, | 14 |
| |
|
PRODUCE...............2
|
| may produce tax results in one province that are not desirable from a legislative or policy | 156 |
| consequences, it is imperative that this legislation be applied so as to produce equal tax | 328 |
| |
|
PRODUCING.............1
|
| law provincial jurisdictions, significant differences may arise as a result of variations in provincial statutes dealing with such matters as what might constitute a charitable activity in the province or who might be viewed as residing in the province. Such diversity in provincial private law is, as will be seen in the articles that follow, susceptible of producing significant differences in the application of federal legislation tax and other from one province to the other. | 6 |
| |
|
PRODUCT...............1
|
| property into its product . The beneficiary has a similar right against anyone to whom the trustee | 256 |
| |
|
PROFESSOR.............8
|
| correct terminology is used when referring to them. Professor Nicholas Kasirer, while | 82 |
| stated by Professor Ziff to the rules of civil procedure that governed litigation at common law | 198 |
| Professor David Duff analyzes the new interpretation rules and their impact on Canadian tax | 614 |
| ITA with Quebec civil law. Professor Catherine Brown analyzes the concept of beneficial | 616 |
| As will be seen in Professor David Duffs article, our courts have played an important role in | 640 |
| The issue of highlighting terms was raised, among others, by Professor Claude Fabien of | 882 |
| This issue was also raised by Professor Fabien while appearing before the Standing Senate | 890 |
| To that effect see the evidence presented by Professor Alain-François Bisson of the Law | 896 |
| |
|
PROFIT................1
|
| no one may profit from his or her crime. Mrs. St-Hilaire applied to the Federal Court Trial | 514 |
| |
|
PROGRAM...............11
|
| The purpose of this article is to give a general overview of the Harmonization Program and its progress as of October . Before exploring some of the differences in the provincial private law and their potential impact on federal tax legislation, it would be useful to give background information on the duality of our legal system and on the particular interaction between federal law and provincial private law in Canada. Next we will give a broad overview of the most important differences between the common law tradition and the civil law tradition in order to illustrate the challenge at hand in applying federal tax legislation fairly and efficiently. Also we will briefly explain the Harmonization Program, its objectives and techniques, and report on the harmonization work done thus far. | 4 |
| The purpose of this article is to give a general overview of the Harmonization Program and its progress as of October . Before exploring some of the differences in the provincial private law and their potential impact on federal tax legislation, it would be useful to give background information on the duality of our legal system and on the particular interaction between federal law and provincial private law in Canada. Next we will give a broad overview of the most important differences between the common law tradition and the civil law tradition in order to illustrate the challenge at hand in applying federal tax legislation fairly and efficiently. Also we will briefly explain the Harmonization Program , its objectives and techniques, and report on the harmonization work done thus far. | 4 |
| Thereafter, in , the Program for the Harmonization of Federal Legislation with the Civil | 76 |
| Law of Quebec was implemented. This program is also a consequence of the coming into | 78 |
| . The Harmonization Program and its Objectives | 312 |
| The Harmonization Program is administered by the Legislative Services Branch of the | 320 |
| Department of Justice. This Program purports to systematically review the existing body of | 322 |
| McLellan, former Minister of Justice, described the purpose of the Harmonization Program in | 332 |
| and Europe Program to Harmonize Federal Legislation with the Civil Law of the Province of | 938 |
| The Department of Justice Canada established the Program of Research Contracts on | 972 |
| this program is also to promote the development of expertise in Canadian bijuralism among law | 974 |
| |
|
PROGRAMS..............1
|
| symmetrynecessary to administer coherently federal policies and programs sometimes calls for | 148 |
| |
|
PROGRESS..............4
|
| The purpose of this article is to give a general overview of the Harmonization Program and its progress as of October . Before exploring some of the differences in the provincial private law and their potential impact on federal tax legislation, it would be useful to give background information on the duality of our legal system and on the particular interaction between federal law and provincial private law in Canada. Next we will give a broad overview of the most important differences between the common law tradition and the civil law tradition in order to illustrate the challenge at hand in applying federal tax legislation fairly and efficiently. Also we will briefly explain the Harmonization Program, its objectives and techniques, and report on the harmonization work done thus far. | 4 |
| . Progress to Date and Legislative Amendments | 428 |
| have been completed and others are in progress . The first reports, most of which have recently | 604 |
| currently in progress namely on the concept of indefeasibly vested dévolution irrévocable | 610 |
| |
|
PROJECT...............1
|
| The harmonization project therefore represents an opportunity to correct previous oversights, | 340 |
| |
|
PROJECTS..............2
|
| A number of research projects on various issues pertaining to Canadian bijuralism in the tax field | 604 |
| Students are also invited annually to participate in harmonization research. Projects are | 610 |
| |
|
PROMISE...............1
|
| in Quebec but also the promise of a common law culture in French outside of Quebec such that | 104 |
| |
|
PROMISSORY............1
|
| See Constitution Act, , subsections () Bills of Exchange and Promissory Notes, | 698 |
| |
|
PROMOTE...............1
|
| this program is also to promote the development of expertise in Canadian bijuralism among law | 974 |
| |
|
PROPERTY..............108
|
| , which recognized that in matters of property and civil rights (private law), the civil law | 16 |
| tradition, inspired by British common law, applied in such matters of property and civil rights | 18 |
| outside of Quebec. Conversely, in matters other than property and civil rights (public law), the | 18 |
| where provinces have maintained exclusive jurisdiction over matters of property and civil | 22 |
| anything affecting property and civil rights, and the common law as it existed in England at the | 40 |
| Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws | 44 |
| that provincial legislatures have exclusive jurisdiction over matters of property and civil rights. | 132 |
| private law terms and concepts such as mortgage, property , trust and leases, without defining | 134 |
| having title to property at common law and title at equity. This duality stems from the | 176 |
| . Property Law | 184 |
| In the field of property law, the differences between both systems have given rise and continue | 186 |
| acquisition and disposition of property . Listing the characteristics pertaining to the nature and | 188 |
| Civil law has a very Cartesian approach to the law of property . Article of the Civil Code | 192 |
| states that Property , whether corporeal or incorporeal, is divided into immovables and | 192 |
| movables. The Civil Code then lists the property that is or is deemed immovable and all | 194 |
| other property , if not qualified by law, is deemed movable. | 194 |
| By comparison, at common law, property is fundamentally divided between real property and | 196 |
| By comparison, at common law, property is fundamentally divided between real property and | 196 |
| personal property . The rules pertaining to the classification of property owe their origin, as | 196 |
| personal property. The rules pertaining to the classification of property owe their origin, as | 196 |
| these labels have remained. A real action could be undertaken with regards to property for | 200 |
| which the return of the land could be ordered. This property was eventually designated as | 200 |
| real property . The personal action was originally one for which only damages could be | 202 |
| awarded. Personal property eventually became the label ascribed to the property subject to | 202 |
| awarded. Personal property eventually became the label ascribed to the property subject to | 202 |
| nevertheless considered as a personal property . | 204 |
| Property under civil law is thus qualified pertaining to its nature whereas it is the form of action | 206 |
| In civil law, ownership is central. Effectively, there is always just one right of property on | 208 |
| movables or immovables. Regardless of whether property is movable or immovable, one will | 210 |
| always try to answer the question: Who owns or has title to the property ? At common law, | 210 |
| on the other hand, ones analysis will depend on whether the property is personal or real. One | 212 |
| can own personal property in a manner much similar to the civil law conception of property | 212 |
| can own personal property in a manner much similar to the civil law conception of property | 212 |
| law. With regards to real property , the law historically developed around the idea that land | 214 |
| Possession is an essential feature of the law of real property . At common law, ones inquiry will | 218 |
| .. Property : a Conceptual Difference | 220 |
| At common law, property is composed of and can be fragmented into various rights and | 222 |
| the same property . Such a coexistence of titles is not possible in civil law since the | 224 |
| the property but rather involve a separation of the attributes of ownership: usus, fructus and | 228 |
| certain time, of property owned by another as ones own, subject to the obligation of preserving | 232 |
| its substance whereas a right of use is the right to enjoy the property of another for a time | 232 |
| A trust is an equitable obligation binding a person (who is called a trustee) to deal with property | 248 |
| The trust involves a split or duality in the transferred property s title; the trustee having the legal | 252 |
| title to the property while the beneficiary or beneficial owner, holds the equitable title to the | 252 |
| same property . The equitable obligation is associated with the idea of a conscience or | 254 |
| moral duty owed to the beneficiary. It is so strong as to allow tracing of the property in the | 254 |
| property into its product. The beneficiary has a similar right against anyone to whom the trustee | 256 |
| has transferred the property , provided the transferee was a volunteer or took with notice of the | 258 |
| theory of property to say the least. Before , better known civil law institutions such as | 264 |
| property . The trust became an autonomous patrimony. Once the settlor has transferred | 268 |
| property to the trust and the trustee has accepted to hold and administer it, nobody owns the | 268 |
| property anymore, neither the trustee nor the beneficiary. There is no duality of property as | 270 |
| property anymore, neither the trustee nor the beneficiary. There is no duality of property as | 270 |
| in common law. The trustee never becomes the owner of the property at law and although the | 270 |
| property . Thereafter, the trustee only has duties and obligations and the beneficiary has | 272 |
| fields related to the law of property such as mortgages and leases. | 276 |
| stems from the fundamental differences in property law. From a common law point of | 280 |
| property . The rules pertaining to the lease are perfectly integrated with the civil law | 294 |
| conception of property . The lessor remains at all times owner of the premises. The lessee has | 296 |
| payment of the rent. He has no real right on the property , only a right of claim. Upon | 298 |
| termination of the lease, the lessee simply surrenders the property to the lessor in the condition | 298 |
| he received it. The lease in no way affects ownership of property , only its enjoyment. | 300 |
| to the ownership of the property being mortgaged. Except for common law provinces wherein | 302 |
| property to the mortgagee (creditor). In all common law provinces, if personal property is | 304 |
| property to the mortgagee (creditor). In all common law provinces, if personal property is | 304 |
| mortgaged (chattel mortgage), legal title to the property is always conveyed to the mortgagee | 306 |
| (creditor) as security for the repayment of the loan. In both cases, legal title to the property | 306 |
| property . The hypothecary creditor only has a charge, a real right on the property. | 310 |
| property. The hypothecary creditor only has a charge, a real right on the property . | 310 |
| Interpretation Act and to approximately fifty federal statutes in matters of property law, | 430 |
| hypothec beside mortgage. In addition, we now find the double real property or | 460 |
| complementarity of federal law with the law of the provinces respecting property and civil | 476 |
| law with respect to property rights. The section reads as follows: | 482 |
| law of property and civil rights in Canada and, unless otherwise provided by law, if in | 484 |
| forming part of the law of property and civil rights, reference must be made to the rules, | 486 |
| property and civil rights in Canada, a premise of Canadian bijuralism. In addition, the provision | 490 |
| Thus, a taxpayer who comes across a double such as mortgage or hypothec or real property | 564 |
| immovable for the Province of Quebec and mortgage and real property for all other | 566 |
| licence ( property law perspective) as used in the Excise Tax Act. | 608 |
| It is mainly in the fields of the law of property and the law of trusts that this duality creates | 738 |
| Barbara Pierre, Classification of Property and Conceptions of Ownership in Civil and | 740 |
| A.H. Oosterhoff W.B. Rayner, Anger and Honsberger Law of Real Property , Vol. , | 742 |
| Article CCQ states that All other property , if not qualified by law, is movable. | 748 |
| Bruce Ziff, Principles of Property Law, rd ed. (Scarborough, ON: Carswell, ), . | 750 |
| Personal property is not subject to the doctrines of estates and tenures and are thus | 756 |
| other lawful purposes within the limits permitted by law; he may also deliver over his property | 780 |
| charged as a mere trustee, to administer the property and to employ it or deliver it over in | 784 |
| retain the property in the event of the lapse of the ulterior disposition, or of the impossibility of | 786 |
| applying such property to the purposes intended, unless the testator has manifested his intention | 788 |
| to that effect. The property in such cases passes to the heir or the legatee who receives the | 788 |
| property from his patrimony to another patrimony constituted by him which he appropriates to a | 804 |
| Article CCQ: The trust patrimony, consisting of the property transferred in trust, | 806 |
| relating to the property of which it is composed are drawn up in his name; he has the exercise of | 812 |
| A trustee acts as the administrator of the property of others charged with full | 814 |
| by the lessor. The lease was thus classified as personal property . Over time, it could no longer | 820 |
| Robert Megarry William Wade, The Law of Real Property , th ed., (London: Stevens | 824 |
| M-Jane Mossman and William F. Flanagan, Property Law: Cases and Commentary, | 828 |
| lessee, in return for rent, with the enjoyment of a movable or immovable property for a certain | 832 |
| The lessor is bound to deliver the leased property to the lessee in a good state of repair in all | 836 |
| respects and to provide him with peaceable enjoyment of the property throughout the term of | 836 |
| He is also bound to warrant the lessee that the property may be used for the purpose | 838 |
| for which it was leased and to maintain the property for that purpose throughout the term of the | 840 |
| Article CCQ: The lessee is bound to pay the agreed rent and to use the property with | 842 |
| Upon termination of the lease, the lessee is bound to surrender the property in the condition in | 846 |
| the property or superior force. | 848 |
| The condition of the property may be established by the description made or the | 848 |
| received the property in good condition at the beginning of the lease. | 850 |
| Personal Property , rd Edition (Toronto, ON: R.M. Willes Chitty) ; Sands v. Standard Ins. | 864 |