Canadian Bijuralism and Harmonization of Federal Tax Legislation **

Authors: Marc Cuerrier, Sandra Hassan, Marie-Claude Gaudreault
The purpose of this article is to give a general overview of the Harmonization Program and its progress as of October 2002. 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.
This article is followed by four in depth articles studying problems in the application of the Income Tax Act[1] arising from differences in provincial private law. For example, the
institution of trust and the concept of ownership vary considerably as between the common law provinces’[2] private law and Quebec’s civil law regime. Moreover, even between common
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.
1. Canadian Duality: Bijuralism
Bijuralism, in the Canadian context, is the coexistence of two major contemporary legal
traditions, namely civil law and common law.[3] Canadian legislation must not only be drafted
in both official languages (bilingualism) but it must also respect the duality of two Canadian legal
traditions: common law and civil law (bijuralism).[4] Tax legislation like all other federal
legislation must be compatible with the two legal systems of private law.
After the 1760 Conquest, common law and equity had been introduced throughout Canada
under the Royal Proclamation, 1763.[5] Canadian bijuralism dates back to the Quebec Act,
1774,[6] which recognized that in matters of property and civil rights (private law), the civil law
tradition, inspired by French civil law, applied in Quebec in the same way that the common law
tradition, inspired by British common law, applied in such matters of property and civil rights
outside of Quebec. Conversely, in matters other than property and civil rights (public law), the
common law tradition has applied and continues to apply in Quebec[7] and outside Quebec.
The duality of our legal heritage has also been entrenched in the Constitution Act, 1867[8]
where provinces have maintained exclusive jurisdiction over matters of property and civil
rights.[9] This enactment confirmed Quebec’s right to keep its civil law of French origin and
that of the other provinces to keep their common law regime of British origin. While the federal
Parliament may have jurisdiction over certain private law matters[10] and may set out its own
private law rules, the bulk of Canadian private law is in provincial law.
The distinction between private law matters and public law matters is critical as bijuralism only
extends to private law matters. In federal tax legislation, concepts or rules that are borrowed
from provincial private law include such matters as the concepts of ownership, partnership,
liability or any other private law matter that involves the relations between persons. This means
that such concepts or matters may call for a different meaning and application from one legal
tradition to the other or worse that the concepts might have no meaning or application in the
other legal tradition. On the other hand, if a concept or rule referred to in federal legislation
belongs to public law as opposed to private law, such concept or rule should have the same
meaning and application throughout Canada whether the federal legislation is applied in the
common law jurisdictions or in Quebec. These principles have been reviewed and confirmed
by the Federal Court of Appeal in St-Hilaire v. Canada.[11]
[40] In the first place, it is The Quebec Act, 1774 [R.S.C., 1985, Appendix II, No. 2] that
sealed the fate of the two legal systems that were to govern the applicable law in Quebec: the
French civil law as it existed prior to 1760 with its subsequent alterations in Quebec in regard to
anything affecting property and civil rights, and the common law as it existed in England at the
same time with its subsequent alterations in Quebec and in Canada in regard to anything
affecting the public law. Article VIII of The Quebec Act, 1774, which prescribed that "in all
Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws
of Canada," was the precursor of subsection 92(13) of the Constitution Act, 1867 [30 & 31
Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982 c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]. (…)
[43] Fourthly, the federal private law in Quebec is composed of the private law defined in a
statute of the Parliament of Canada and the civil law if it is necessary to resort to an external
source in order to apply a federal statute. The Parliament of Canada may enact private law
legislation that will form a complete code in which case there is no need to resort to an external
source, the civil law, or it may enact private law legislation which, because it is incomplete, will
refer either expressly or by implication to the civil law for its implementation.
[44] Fifthly, the Parliament of Canada may derogate from the civil law when it legislates on a
subject that falls within its jurisdiction.
Although the Court’s decision specifically addressed the relationship between federal legislation
and Quebec civil law, the same rules apply with regards to any other province.
What is the significance of recognizing the duality of our legal traditions in federal legislation?
Having evolved differently one from the other, our two private law systems involve divergent,
often incompatible institutions, rules and approaches. Yet it is necessary that federal tax
legislation apply equally and coherently across the country in both linguistic versions and in both
legal traditions. Aside from the need to reconcile linguistic differences that may exist between
the French and English versions of legislation, there is a further requirement to reconcile the
differences that result from our different private law systems. How does the drafter of tax
legislation ensure that it applies to Francophones and Anglophones alike and also applies
equally to taxpayers whether in the civil law tradition or the common law tradition? To meet this
challenge, federal tax legislation must use terminology that is compatible with each of the two
legal systems, in both official languages. The need to make Canadian legislation accessible to
the four legal audiences of this country has led to the adoption in 1995 of the Policy on
Legislative Bijuralism, which:
formally recognizes that it is imperative that the four Canadian legal audiences (Francophone
civil law lawyers, Francophone common law lawyers, Anglophone civil law lawyers and
Anglophone common law lawyers) may, on the one hand, read federal statutes and regulations
in the official language of their choice and, on the other, be able to find in them terminology and
wording that are respectful of the concepts, notions and institutions proper to the legal system
(civil law or common law) of their province or territory;[12]
Thereafter, in 1999, the Program for the Harmonization of Federal Legislation with the Civil
Law of Quebec was implemented.[13] This program is also a consequence of the coming into
force of the Civil Code of Québec[14] on January 1, 1994 where important changes in a
number of substantive rules and to the civil law terminology were brought forward. These
changes have an impact on the application in Quebec of federal acts and regulations.
Harmonization ensures that the civil law institutions and concepts are respected and that the
correct terminology is used when referring to them. Professor Nicholas Kasirer, while
appearing before the Standing Senate Committee on Legal and Constitutional Affairs, described
harmonization in the following terms:
Harmonization, as a musical technique, shows how the four voices of federal legislation are
being fine-tuned with full respect being paid to bilingualism and bijuralism. (…)
First then, what does "harmonization" imply as a matter of legislative technique? Harmony takes
different forms in music theory. Multiple voices can come together as one or differently to
achieve a unified effect. Quite plainly, the federal Parliament has chosen the model of
polyphonic music as opposed to monophonic song for Bill S-4, and one presumes for the
legislation that will be sung in this chamber hereafter.
By "polyphony" I mean that musical form whereby multiple voices, each singing in a different
register, combine differently to form a musical whole. (…)
Polyphonic legislation would thus be the method by which the legislative song, as it were,
emerges as a whole through the harmonious combination of four different voices – the common
law in English and French and the civil law in English and French, which taken separately are
radically different but taken together express the whole of the legislative norm.
The task is daunting, but it is the imperative of section 133 of the Constitution Act, 1867, which
give French and English equal authority as expressions of legislative text and the coexistence of
the common law and the civil law as varying bases of suppletive law for federal legislation that
imposes this polyphonic legislative form.
Plainly, the former reality, in which the English text represents the common law and the French
text represents the Civil Code, not only ignored the reality of a vibrant civil law culture in English
in Quebec but also the promise of a common law culture in French outside of Quebec such that
two of the voices of Canadian law were in some measure silenced.[15]
Harmonization is thus a pragmatic exercise, which ensures that federal legislation is compatible
with and applicable within each of our two legal traditions in both of our official languages.
Viewed from a drafting perspective, Canadian bijuralism appears to impose a tremendous
challenge on the structure and interpretation of Canadian legislation (and particularly tax
legislation which depends so much on an equal distribution of tax burdens and benefits).
However, as a country immersed in two legal traditions – common law and civil law – the
world’s two major legal systems, bijuralism places Canada in a privileged position within the
international community.[16] Based on a study undertaken in 1998 by the Law Faculty of the
University of Ottawa,[17] civil law and common law systems represent 72% of the world’s
legal systems, civil law systems accounting for 43.8% alone. Canadian bijuralism thus offers at
the same time a tremendous challenge domestically and "gives us a window on the world."[18]
Indeed bijuralism viewed from an international perspective expands considerably our legal
connectivity to the global village.
2. Complementarity and Dissociation: The Interplay of Federal and Provincial
Law[19]
Having acknowledged the need for bilingual and bijural tax legislation, let us examine the
relationships between federal and provincial private law. As such, federal legislation does not
often stand alone and depends on provincial private law for meaning.
Federal law is not "an island unto itself". Some federal enactments are fully comprehensive and
self-contained. Others, however, can only be fully understood and comprehended if reference
is made to extrinsic legal sources. In most instances, those external sources are composed of
provincial law. While the content of provincial law may vary from province to province, the
validity of any such provincial law, in large measure, depends of s. 92 of the Constitution Act
1867.[20]
As noted earlier, the division of legislative powers under the Constitution Act, 1867 provides
that provincial legislatures have exclusive jurisdiction over matters of property and civil rights.
Most of Canada’s private law is provincial. Therefore, where federal legislation refers to
private law terms and concepts such as mortgage, property, trust and leases, without defining
such terms and concepts, they take the meaning that applies in the private law of the province in
which the provision is being applied. Provincial law thus is in symbiosis with federal legislation
and gives it meaning. This interaction of federal and provincial legislation is called
complementarity. Provincial private law, in this relationship, can be viewed as the backdrop or
legal infrastructure of the federal legislation. Provincial private law provides the suppletive law
by completing federal legislation where it is silent or incomplete on an issue. In common law
provinces this backdrop or infrastructure is the general common law but in Quebec the
backdrop is the Civil Code of Québec and civil law principles of general application.
It is always open, under the Constitution Act, 1867, for federal policy makers to write out their
own private law rules and to derogate from the relationship of complementarity. This is done
typically where federal policy makers want greater consistency in federal policies. This other
type of relationship is called dissociation. For example, provincial family law is often
heterogeneous as some of its rules vary from one province to the other. The lack of
symmetrynecessary to administer coherently federal policies and programs sometimes calls for
definitions in federal legislation like that of "child" or "common law partner". Overall, however,
it is usually more convenient and logical for the federal legislator to work with the existing
provincial private law infrastructure than to reinvent it in every federal statute. Thus, even where
federal definitions or specific federal rules are provided, they often refer, in varying degrees, to
provincial private law rules and concepts. The interpretation of federal legislation requires an
awareness of the differences in our legal traditions and of the diversity in our provincial private
laws.
The important differences that exist in our legal traditions and in the private law of the provinces
may produce tax results in one province that are not desirable from a legislative or policy
perspective (undesirable asymmetry). In keeping with the principle of complementarity these
adverse tax results must be anticipated and the gaps between common law and civil law must be
adequately bridged with specific provisions if federal tax legislation is to apply effectively and
equitably throughout Canada.
To better understand some of the issues that have to be addressed in the process of harmonizing
federal legislation, let us briefly set out some of the major differences between the common law
and the civil law.
3. Common Law and Civil Law: A Brief Comparison
Differences exist between Quebec civil law and the common law; sometimes they are trivial,
often they are gaping. Conceptually, both systems are different. What characterizes civil law is
codification. Most of the civil law rules are set out in the Civil Code of Québec. There is a
predominance of certainty over flexibility. Confronted with a given set of facts, in civil law one
will have to determine which of the rules found in the Civil Code is to be applied. Because no
court can change a written rule, if a rule becomes the source of injustice, the only solution
available will be to amend the law. Such a process can be both difficult and time consuming.
One of the common law’s predominant features is its flexibility. Furthermore, if the result of the
application of common law rules is inadequate, it is possible to obtain certain equitable
remedies. One of the most interesting and challenging features of English law for civil law
practitioners is this duality that exists between common law and equity and the possibility of
having title to property at common law and title at equity.[21] This duality stems from the
coexistence of the courts of law and the courts of equity where equitable principles were
developed to temper the effects of some of the common law rules.[22] "While the courts of
common law and equity are now fused in virtually all jurisdictions, the separate rules of law
remain in force. (…) Thus, the distinction between legal and equitable interests still
maintains."[23] The latter distinction was reaffirmed in Canson Enterprises Ltd. v.
Boughton[24] and in Martin v. Goldfarb.[25] On the other hand, the only equitable rules
that apply in civil law are those expressly provided for in the Civil Code or other statutes.[26]
3.1 Property Law
In the field of property law, the differences between both systems have given rise and continue
to give rise to many questions for tax law purposes including the questions pertaining to the
acquisition and disposition of property. Listing the characteristics pertaining to the nature and
scope of ownership allows one to identify some of the differences between the common law and
the civil law.
3.1.1 Characteristics of Both Legal Systems
Civil law has a very Cartesian approach to the law of property. Article 899 of the Civil Code
states that "Property, whether corporeal or incorporeal, is divided into immovables and
movables". The Civil Code then lists the property that is or is deemed immovable[27] and all
other property, if not qualified by law, is deemed movable.[28]
By comparison, at common law, property is fundamentally divided between real property and
personal property. The rules pertaining to the classification of property owe their origin, as
stated by Professor Ziff "to the rules of civil procedure that governed litigation at common law
during the Middle Ages."[29] Even though the forms of action at common law were abolished,
these labels have remained.[30] A real action could be undertaken with regards to property for
which the return of the land could be ordered.[31] This property was eventually designated as
real property. The personal action was originally one for which only damages could be
awarded. Personal property eventually became the label ascribed to the property subject to
such actions.[32] A hybrid category developed for the lease, which is now a chattel real, but is
nevertheless considered as a personal property.
Property under civil law is thus qualified pertaining to its nature whereas it is the form of action
that is the qualifying element at common law.
3.1.2 The Concept of Ownership
In civil law, ownership is central. Effectively, there is always just one right of property on
movables or immovables. Regardless of whether property is movable or immovable, one will
always try to answer the question: "Who owns or has title to the property?" At common law,
on the other hand, one’s analysis will depend on whether the property is personal or real. One
can own personal property[33] in a manner much similar to the civil law conception of property
but "ownership" is a concept that clashes with the doctrines of estates and tenures in common
law. With regards to real property,[34] the law historically developed around the idea that land
is owned by the Crown who grants rights and interests: it recognizes no absolute ownership of
land and instead recognizes estates or interests in land (theory of the bundle of rights).[35]
Possession is an essential feature of the law of real property. At common law, one’s inquiry will
pertain not to the question of ownership of land but to the length of time of the possession
(doctrine of estates) as well as the quality of the possession (doctrine of tenures).[36]
3.1.3 Property: a Conceptual Difference
At common law, property is composed of and can be fragmented into various rights and
interests that coexist.[37] Furthermore, common law and equity make it possible for different
people to hold concurrently a common law title and an equitable title (beneficial ownership) for
the same property.[38] Such a coexistence of titles is not possible in civil law since the
distinction between the legal and equitable title does not exist and never has.
Article 947 CCQ provides that "ownership may be in various modes and dismemberments".
What characterizes all dismemberments is that they do not entail a change in the ownership of
the property but rather involve a separation of the attributes of ownership: usus, fructus and
abusus. Namely, dismemberments are the usufruct, the use, the servitude and the
emphyteusis.[39] For example, the usufruct is defined as "the right of use and enjoyment, for a
certain time, of property owned by another as one’s own, subject to the obligation of preserving
its substance"[40] whereas a right of use is "the right to enjoy the property of another for a time
and to take the fruits and revenues thereof, to the extent of the needs of the user and the
persons living with him or his dependants."[41] On the other hand, the modes of ownership are
co-ownership and superficies.[42] As such, the modes of ownership do not call for a
separation of the attributes of ownership; the right of ownership remains whole. In a co-
ownership,[43] the exercise of the attributes of ownership on a subject matter is however
limited by the fact that two or more persons detain the same right of ownership. Moreover, a
superficies is characterized by the fact that it results in the physical division of the subject matter
of the right of ownership and superimposes two complete and distinct rights of ownership on the
divided subject matter. For example, the owner of land with buildings erected upon it may
choose to sell the buildings while remaining the owner of the land.[44]
3.2 Trusts
Another area in which both legal systems are very different is the law of trusts. In common law,
the trust is a creation of the courts of equity and is best described as a relationship between
three parties: the settlor, the beneficiary and the trustee. The following definition of the concept
of trust is most comprehensive:
A trust is an equitable obligation binding a person (who is called a trustee) to deal with property
over which he has the control for the benefit of persons (the beneficiaries), of whom he may
himself be one, and anyone of whom may enforce the obligation.[45]
The trust involves a split or duality in the transferred property’s title; the trustee having the legal
title to the property while the beneficiary or beneficial owner, holds the equitable title to the
same property.[46] The equitable obligation is associated with the idea of a conscience or
moral duty owed to the beneficiary. It is so strong as to allow tracing of the property in the
hands of a third party in certain circumstances: "the beneficiary is allowed to trace the trust
property into its product. The beneficiary has a similar right against anyone to whom the trustee
has transferred the property, provided the transferee was a volunteer or took with notice of the
trust."[47]
In civil law, the trust (fiducie) does not have the same colourful history.[48] Before 1879, a
trust could only be used for charitable purposes under a valid will.[49] The trust was
introduced in the former Code nearly 20 years after its adoption.[50] The trust, as it was
known between 1879 and the reform of the Civil Code in 1994, was the subject of many
debates as to its nature and effects.[51] The institution was not well integrated with the civil law
theory of property to say the least.[52] Before 1994, better known civil law institutions such as
the usufruct, the right of use and the substitution, were far more prevalent.
In 1994, the Civil Code introduced a new trust, better integrated with the civil law concept of
property. The trust became an autonomous patrimony.[53] Once the settlor has transferred
property to the trust and the trustee has accepted to hold and administer it, nobody owns the
property anymore, neither the trustee nor the beneficiary.[54] There is no duality of property as
in common law. The trustee never becomes the owner of the property at law and although the
title is established in his name, ès quality of trustee, he is a mere administrator of the trust
property.[55] Thereafter, the trustee only has duties and obligations and the beneficiary has
certain rights to require benefits or payments.[56]
Duality of title between the legal and beneficial owner is thus an important difference between
common law and civil law. This duality exists not only in the field of trust law but also in other
fields related to the law of property such as mortgages and leases.
3.3 Lease
Again, the major difference between the lease of land and buildings at common law and civil law
stems from the fundamental differences in property law. From a common law point of
view,[57] a lease is defined as "a document creating an interest in land for a fixed period of
certain duration, usually in consideration of rent."[58] The leasehold estate is for a limited or
fixed duration. What characterizes the leasehold estate or interest is that the lessor, while
retaining the seisin, conveys possession of the land to a tenant for a given period of time. The
lessor retains a reversionary interest in the land i.e. the right to possession of the land at the end
of the lease. This interest reverts back to the lessor at the end of the lease.[59]
Mossman describes the situation as follows:
the concept of ‘ownership’ does not neatly apply to a leasehold estate, because neither the
lessor nor the tenant enjoys sole and exclusive rights of ownership. Both the tenant and lessor
have interests (or estates) in the same piece of land. The tenant has a possessory interest (or
estate in possession) for the duration of the leasehold estate, and the lessor retains a
reversion.[60]
In civil law, the lease is one of the various nominate contracts enumerated in the Civil Code. It
belongs to and is best analysed in the context of the law of contract and not the law of
property. The rules pertaining to the lease[61] are perfectly integrated with the civil law
conception of property. The lessor remains at all times owner of the premises. The lessee has
the right to peaceful enjoyment of the premises throughout the term of the lease in exchange for
payment of the rent. He has no real right on the property, only a right of claim.[62] Upon
termination of the lease, the lessee simply surrenders the property to the lessor in the condition
he received it.[63] The lease in no way affects ownership of property, only its enjoyment.
3.4 Mortgage / Hypothec[64]
The basic difference between the civil law "hypothec" and the common law "mortgage" relates
to the ownership of the property being mortgaged. Except for common law provinces wherein
the Torrens system of land titles registration applies,[65] a mortgage conveys legal title to real
property to the mortgagee (creditor).[66] In all common law provinces, if personal property is
mortgaged (chattel mortgage), legal title to the property is always conveyed to the mortgagee
(creditor) as security for the repayment of the loan.[67] In both cases, legal title to the property
is transferred back to the mortgagor (debtor) upon repayment of the loan to the mortgagee. In
comparison, under civil law, when a hypothec is granted, the debtor retains ownership of the
property. The hypothecary creditor only has a charge, a real right on the property.[68]
These are only but a few examples of some of the existing differences between common law
and civil law that may affect the application of federal legislation throughout Canada.
4. The Harmonization Program and its Objectives
As previously mentioned, the need to harmonize stems from the coexistence of civil law and
common law in Canada and from the relationship of complementarity that exists between federal
legislation and provincial private law. It should be emphasized that the harmonization of tax
laws is not a byzantine or academic exercise but rather a very practical undertaking aimed at
adapting tax laws to the civil law environment. Harmonization is about bridging the gaps that
exist between Canada’s two legal traditions. It is also about ensuring effective and equitable
application and enforcement of federal tax legislation.
The Harmonization Program is administered by the Legislative Services Branch of the
Department of Justice. This Program purports to systematically review the existing body of
federal legislation – some 700 statutes and their regulations – and ensure their compatibility with
civil law when they refer to provincial private law rules and concepts. This revision is similar in
its scope and process to the revision of federal legislation that took place in the late 1980s to
ensure conformity with the Canadian Charter of Rights and Freedoms.[69]
Tax law has been identified as one of the key areas requiring harmonization along with
regulatory law and commercial law. Considering that tax legislation has major patrimonial
consequences, it is imperative that this legislation be applied so as to produce equal tax
obligations and tax benefits to all Canadians, regardless of the legal system that governs them.
Currently, federal legislation covers only partially the four Canadian legal audiences. Anne
McLellan, former Minister of Justice, described the purpose of the Harmonization Program in
the following terms:
Despite the historical coexistence in Canada of two major western legal traditions, federal
legislation has tended to make civil law, at least at times, an orphan. At times, it created statutes
whose very concepts were unique or peculiar to the common law; at times it used terms that
had no civil law equivalent or no technical meaning in civil law; and at times it used terms whose
meanings were so different in civil and common law that Quebec’s courts tended to favor the
common law interpretation as a better reflection of Parliament’s intent.
The harmonization project therefore represents an opportunity to correct previous oversights,
omissions and unijural constructions in existing federal legislation, and to replace them with
wording that accurately reflects the vocabulary, concepts, norms and institutions of Quebec’s
civil law.[70]
It can readily be seen from these remarks that three types of problems are of concern in the
harmonization process:
1) unijuralism[71]: terms and concepts that only have meaning in common law have to be
adapted to the civil law tradition, if tax laws are to apply effectively in Quebec. Catherine
Brown, Mark Brender and Diane Bruneau have addressed such problems in their study of the
use of the concept of beneficial ownership and of other trust law concepts in tax legislation.
They have identified specific problems and attempts are made to develop equivalent concepts
and rules for the civil law environment. Other examples of unijuralisms include references to
concepts such as "leasehold interest", "joint ownership" and "bare trust".
2) semi-bijuralism[72]: this drafting approach, which consists in using exclusively common
law terminology in the English version and exclusively civil law terminology in the French
version, is no longer appropriate to address the four legal audiences (common law and civil law
in each official language).
3) obsolete terminology[73]: federal legislation uses terminology that is now obsolete as a
result of the reform of the Civil Code of Québec in 1994. The Civil Code underwent a major
overhaul in 1994 and many concepts were either changed or replaced. As a result, the civil law
terminology that is used in federal legislation must be updated to reflect the reform of the Civil
Code. An example of a change that affects tax legislation is the concept of "executor" which
has become in Quebec civil law a "liquidator of a succession". Similarly the concepts of
"offenses and quasi-offenses" / délit et quasi-délit have been replaced by the concept of
"extracontractual civil liability" / responsabilité civile extracontractuelle.
Different drafting techniques can be used to correct harmonization problems. In each case, the
choice of the most appropriate solution will depend "on the situation, the structure of the
enactment in which the legislative provision is to be included, the legislative corpus as a whole,
and the imperative (…) of simultaneously addressing four different groups"[74] – common law
in French and English and civil law in French and English. Hereafter are the principal drafting
techniques used to harmonize federal legislation:
§ common term[75]: the common term (neutral, generic or general) drafting technique consists
in using, for civil law and common law, a neutral term which either has no connotation in the two
legal systems or has a similar meaning in both legal systems. This technique is least susceptible
of creating differences in application from one system to the other.
§ definition[76]: in a bijuralism context, the definition drafting technique consists in giving a
term a meaning that is specific both to civil law and common law. This technique can already be
found in tax legislation; the definition of the words "release or surrender" / abandon, "child" and
"common law partner" provided in the I.T.A. offer good examples. By defining its own rules
and concepts the legislator avoids, in whole or in part, references to and potential differences in
provincial private law.
§ double[77]: another drafting technique is the double, which consists in formulating the legal
rule using, side by side, the terminology applicable to each legal system. This technique will not
always be privileged since simplicity and concision may be lost, notably in long tax provisions.
Harmonization and bijuralism should not only inform the drafting of tax legislation but they
should also inform the development of tax policy. Thus, it is advisable that tax policies not be
articulated around unijuralisms or legal concepts that have no equivalent in the civil law
tradition. Using unijural legal concepts and terminology such as leasehold interest, equity, joint
ownership or beneficial ownership in the development of tax policy is problematic. It is
preferable to use more neutral terms and concepts that apply readily to both legal traditions or,
where this is not possible, to use doubles as described above. This is another challenge that lies
ahead in tax policy development. Current tax policies that are often structured around common
law terms, concepts and rules have to be carefully reviewed and adapted.
Harmonization changes will have an important impact on federal legislation. Indeed,
harmonization will require changes or additions to the terminology used in both linguistic versions
of an enactment to ensure they are compatible with civil law and common law. As a result, the
emergence of new terminology in bijural provisions might present a problem for the Anglophone
who is not familiar with civil law terminology and for the Francophone who is not familiar with
common law terminology. This raises the issue of marking harmonization changes to indicate
whether a provision contains civil law terminology, common law terminology or terminology
consistent with both legal systems. Is it necessary to highlight[78] the harmonized terminology
by means of an editorial convention such as italicizing civil law terminology and underlining
common law terminology? Would it be appropriate to create a lexicon[79] of private law
terminology used in the English and French versions of federal legislation?
The Department of Justice and several academics and practitioners reflected upon these issues
and concluded that marking legislation for civil law or common law terminology or creating a
lexicon in federal legislation was not desirable for several reasons[80]. The legislature has
always spoken in one form with respect to language. One official language version is not printed
in a typeface different from the other. Similarly with the movement to ensure the law speaks to
all legal audiences it would be inconsistent to distinguish one legal concept from another by
different typefaces or other forms of marking. The symbolism of the uniform appearance of
Canadian statute books is important. No language or legal concept is more or less important;
they are all equal in all respects and none is singled out[81].
Every one agreed, however, that the new techniques of bijural legislation needed to be
communicated effectively to the legal community and to the population in general. As an
alternative, it was decided to create bijural terminology records, an administrative tool to
facilitate the interpretation of provisions containing harmonization changes. Pursuant to a
commitment taken before the Standing Senate Committee on Legal and Constitutional
Affairs,[82] the Department of Justice made these bijural terminology records available[83].
These bijural records briefly explain the harmonization problems found in the legislative
provisions that were amended in the first harmonization act[84] as well as in the Income Tax
Amendments Act, 2000[85] and describe the solutions adopted. These records identify civil
law and common law terminology in both official languages. The bijural terminology records
can be used in the interpretation or application of harmonized enactments.[86] The usefulness
of the bijural terminology records has already been demonstrated by the Supreme Court of
Canada in the Schreiber case. The Court relied on these records to confirm that the
harmonization changes that had been brought forward were aimed at introducing civil law
terminology and did not affect the substance of the provision.[87]
5. Progress to Date and Legislative Amendments
To date one omnibus Harmonization Act was passed and became the Federal Law – Civil
Law Harmonization Act, No. 1.[88] Its main components consists in the amendments to the
Interpretation Act[89] and to approximately fifty federal statutes in matters of property law,
civil liability and sureties. The Department of Justice Canada is working on another series of
harmonization proposals for inclusion in a second harmonization bill. Public consultations are
planned for January 2003 on this second set of general harmonization proposals.
On the tax front, harmonization changes have been made in several tax bills adopted over the
last few months.
§ Income Tax Amendments Act, 2000 (Bill C-22)[90]
The first harmonization changes to tax legislation can be found in the Income Tax Amendments
Act, 2000. Its Part I contains a few harmonization adjustments whereas its Part II pertains
solely to harmonization with the civil law of the Province of Quebec of three concepts: executor,
mortgage and joint ownership.
§ executor: before these amendments, reference was made solely to the concept of
"executor". Since the reform of the Civil Code, this term is obsolete, having been replaced with
the concept of "liquidator of the succession" / liquidateur de la succession. In this case, the
solution consisted in adding this new civil law concept beside the expression "executor" /
exécuteur testamentaire which is still used in common law.
§ mortgage: the second problem was one of semi-bijuralism: the English version of the
provisions referred only to "mortgage". The English version was adjusted by adding the civil
law concept of "hypothec". Nothing was added to the French version, as hypothèque is
appropriate in French for both common law and civil.
§ joint ownership: adjustments were made to certain provisions in which reference was made
to the concept of joint ownership, a common law concept, which calls for a right of
survivorship. This concept does not exist in civil law. In order to correct the problem, the
neutral term "co-ownership" / copropriété was used which refers to all forms of co-ownership
both in civil law and at common law.
These harmonization amendments were made to the Income Tax Act, Excise Tax Act[91] and
Income Tax Application Rules.[92]
§ Customs Act (Bill S-23)[93]
Changes were brought to the Customs Act[94] where one can now find the civil law concept of
"hypothec" beside "mortgage". In addition, we now find the double "real property or
immovable" in the English version and immeuble ou bien réel in the French version.
§ Excise Act, 2001 (Bill C-47)[95]
Changes similar to those found in the Customs Act were made in the Excise Act[96]in which
an additional adjustment was made: the civil law concept of "solidarity" was added beside that
of "joint and several" in provisions dealing with liability.
The Department of Finance and the Canada Customs and Revenue Agency (CCRA), like the
rest of Government, are committed to the harmonization of tax legislation to ensure its efficient
application in the unique civil law environment of Quebec. Comparative law analyses are being
conducted and harmonization changes are being made in tax legislation with a view to adapting
federal tax legislation to the legal concepts and rules of Quebec’s private law.
6. New Interpretation Rules
Sections 8.1 and 8.2 of the Interpretation Act constitute the cornerstone and provide the rules
for the interpretation of federal legislation in light of Canadian bijuralism.[97]
Although the existence of Canadian Bijuralism stems from the Quebec Act of 1774, it is not
formally recognized in any statutory provision. The same is true of the principle of
complementarity of federal law with the law of the provinces respecting property and civil
rights. What is more, there are no rules of interpretation to guide those required to apply bijural
legislation. All these reasons led the Department of Justice, after consulting various experts, to
amend the Interpretation Act to add two provisions designed to correct these deficiencies.[98]
§ Section 8.1 of the Interpretation Act[99]
Section 8.1 of the Interpretation Act "has two inseparable objectives: to recognize Canadian
bijuralism and to consecrate the principle of the complementarity of federal law and provincial
law with respect to property rights."[100] The section reads as follows:
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.
This provision states that civil law and common law are equally authoritative in matters of
property and civil rights in Canada, a premise of Canadian bijuralism. In addition, the provision
codifies the principle of complementarity of provincial private law. We emphasize that the
principle of complementarity is cast very broadly so to apply not only in regards to civil law but
to all provincial private law, including general common law and provincial statutory law. In
addition to the principle of complementarity, this provision establishes an ambulatory character
to provincial private law terms used in federal legislation.
The principles that are found in this provision were the object of many judicial debates in the
past. Before the Supreme Court of Canada’s trilogy – Quebec North Shore Paper Co. v.
Canadian Pacific Ltd.,[101] McNamara v. Queen[102] and Queen v. Thomas Fuller
Construction Co. (1958) Ltd.[103] – there were two schools of thought, the first one
supporting the thesis that there existed "a federal common law in all matters falling within the
jurisdiction of the federal government"[104] fully independent of provincial law while the second
one argued for the recognition of the complementary nature of provincial private law in matters
where federal legislation was incomplete or silent. The Supreme Court rejected the first thesis
and "opened the door to the recognition of bijuralism with respect to federal legislation."[105]
A new debate ensued from this recognition: does provincial private law complete only federal
private legislation or does it apply in all cases regardless of the qualification of an act as private
or public legislation? This precise issue has been addressed by the Federal Court of Appeal in
St-Hilaire v. Canada.[106]
o St-Hilaire: Private Law vs Public Law
Mrs. St-Hilaire, a Quebec resident, stabbed her husband during a violent domestic quarrel. She
was charged with second-degree murder and pleaded guilty to a reduced charge of
manslaughter. Mrs. St-Hilaire, as sole heir and surviving spouse, claimed the surviving spouse’s
allowances under the Public Service Superannuation Act.[107]
The Treasury Board refused to pay, on account of the common law rule of public policy that
"no one may profit from his or her crime". Mrs. St-Hilaire applied to the Federal Court Trial
Division for a declaratory judgment that civil law rules applied and that these rules entitled her to
the benefits provided in the PSSA.
Justice Blais allowed Mrs. St-Hilaire’s application and ordered the Treasury Board Secretariat
to pay her the amounts claimed.[108] The Trial Division decided that under the civil law of
Quebec, no rule applied to disallow Mrs. St-Hilaire’s claim. The Federal Court of Appeal
allowed the appeal. The Court was divided on the interpretation of the civil law rules of
succession but unanimous on the issue of the complementarity of federal legislation and
provincial private law where the former is silent on the meaning of a concept.
Justice Décary rejected the argument that provincial private law is to complete only federal
private legislation as opposed to public legislation:
[65] What, in my view, should determine whether or not it is necessary to resort to the private
law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue
but the fact, quite simply, that the federal enactment in a given case must be applied to situations
or relationships that it has not defined and that cannot be defined other than in terms of the
persons affected. In some ways the circle is closed and we come back to the point of
departure, in section VIII of The Quebec Act, 1774: when these affected persons are litigants
and their civil rights are in dispute and have not been defined by Parliament, it is the private law
of the province that fills the void. In short, the civil law applies in Quebec to any federal
legislation that does not exclude it.[109]
He concluded that the concept of "succession" is a private law concept and consequently that it
must be interpreted in light of the private law of the province in which the provision is to be
applied:
[68] I do not think there can be any doubt that this part of the Act, which refers to "succession"
without defining it, should be interpreted in Quebec in light of the civil law. This is a good
example of the danger in concluding that a federal statute is either public law or private law and
that once it is public law any reference to a private law concept must be interpreted in light of
the common law. I have a hard time imagining how, in the case at bar, Mr. Morin's succession
would be determined otherwise than under the Civil Code of Québec. In my opinion, there is
no avoiding the fact that a federal statute, albeit one characterized as public law, that refers to a
private law concept such as succession without defining it, should be interpreted in Quebec in
terms of the civil law.[110]
In keeping with this decision, one will first need to determine if the federal legislation refers to a
private law rule, principle or concept. Then, one will have to determine whether the federal
legislation contains its own private law rule. If federal legislation is silent (as in the St-Hilaire
case) or relies upon provincial private law to complete it, then reference is to be made to
provincial private law.
§ Section 8.2 of the Interpretation Act[111]
Section 8.2 of the Interpretation Act is "intended to facilitate an understanding of the new
drafting techniques designed to reflect Canadian bijuralism in federal legislation."[112] It reads
as follows:
Unless otherwise provided by law, when an enactment contains both civil law and common law
terminology, or terminology that has a different meaning in the civil law and the common law, the
civil law terminology or meaning is to be adopted in the Province of Quebec and the common
law terminology or meaning is to be adopted in the other provinces.
Section 8.2 of the Interpretation Act mentions that where a provision uses civil law as well as
common law terms, the former will be applicable in Quebec and the latter in the other
provinces. The redrafting of certain federal enactments being one of the harmonization tools
chosen, section 8.2 was added so that the redrafting process does not give rise to any ambiguity
with regard to the goal pursued.[113]
Thus, a taxpayer who comes across a double such as "mortgage or hypothec" or "real property
or immovables" will have to read the provision as referring to the concept of "hypothec" or
"immovable" for the Province of Quebec and "mortgage" and "real property" for all other
Canadian provinces. This interpretive approach was recently approved by the Supreme Court
of Canada in Schreiber v. Canada.[114] Although the case does not pertain to taxation, we
believe the decision will apply to all harmonized enactments.
o Schreiber: Interpretation of Harmonized Provisions
Mr. Schreiber had been arrested and detained for one week further to a request from
Germany. He sued Germany and Canada claiming one million dollars in damages. He alleged
that Germany did not have immunity of jurisdiction because the exception to state immunity
found in paragraph 6(a) of the State Immunity Act[115] was applicable. This exception
initially applied to cases of "any death or personal injury". Paragraph 6(a) was amended by the
Federal Law – Civil Law Harmonization Act, No. 1and now excludes from state immunity
proceedings that relate to "any death or personal or bodily injury".
Mr. Schreiber argued that adding "bodily injury" to "death or personal injury" had broadened
the scope of the exception to state immunity. Accordingly, he submitted that "bodily injury"
referred to damage to the human body and "personal injury" to all other forms of damage such
as mental distress and damage to his reputation. Counsel for the Crown, on the other hand,
argued that the insertion of "bodily injury" was intended to "ensure that the wording used in
legislation which relies upon complementary provincial law reflect Canada’s bijural and bilingual
nature."[116]
The Supreme Court agreed with the Attorney General’s interpretation of the provision. The
Honourable Justice Lebel, writing the Court’s unanimous decision, rejected Mr. Schreiber’s
interpretation of the provision because it neither took into account the purpose of the changes
made nor the French version of the provision:
[…] Given that the purpose of the Harmonization Act is to highlight bijural terminology used
by common law and civil law systems, and does not substantively change the law as set out in
the statute, we are left interpreting s. 6(a) of the State Immunity Act using the usual techniques
of interpretation.[117]
The Court then analysed the French version in its attempt to give meaning to the terminology
used in the English version. Since the expression used in the French version (dommages
corporels) clearly referred only to damages to the human body, the Court rejected Mr.
Schreiber’s claim against Germany.
This decision illustrates that where harmonization changes have been made, the nature of the
changes is to be taken into consideration in interpreting the enactment. Such harmonization
changes are not to be construed as substantively changing the law. The insertion of civil law
terminology in the English version and common law terminology in the French version is not to
be interpreted as changing the provisions’ scope.
7. Research Contracts
A number of research projects on various issues pertaining to Canadian bijuralism in the tax field
have been completed and others are in progress. The first reports, most of which have recently
been published, pertained to the following subjects: a comparative study of the civil law and
common law partnerships, the concepts of "right" and "interest", the concepts of "business",
"employee" and "residence", the retroactive effect of conditional obligations and the concept of
licence (property law perspective) as used in the Excise Tax Act.[118]
Students are also invited annually to participate in harmonization research.[119] Projects are
currently in progress namely on the concept of "indefeasibly vested" / dévolution irrévocable
and on time limitation periods.
Four other reports were recently completed and are published hereafter in this Journal.
Professor David Duff analyzes the new interpretation rules and their impact on Canadian tax
caselaw. Me Diane Bruneau’s report deals with the interaction of the trust provisions of the
ITA with Quebec civil law. Professor Catherine Brown analyzes the concept of "beneficial
ownership" from a common law perspective whereas Me Mark Brender focuses on the use of
this concept in tax legislation and underlines the difficulties for the civil law audience.
The Department of Justice will examine the various solutions proposed in these reports with the
Department of Finance and the CCRA to determine the feasibility of harmonization changes to
existing tax legislation.
Conclusion
The enactment of sections 8.1 and 8.2 of the Interpretation Act do not in any way change the
tax policy principles of equity or of neutrality in taxation. That tax legislation must provide for an
equitable distribution of tax burdens and tax benefits in light of a taxpayer’s ability to pay and
irrespective of the province in which income is earned, is not in dispute at all. What is in issue,
however, is the formulation or the expression of the federal tax rules in a bijural environment.
Given the codification of the principles of equality of common law and civil law and of
complementarity of provincial private law with federal legislation, provincial private law
principles, rules and concepts should apply in interpreting federal tax legislation unless other
specific rules are provided by law. This means that federal tax provisions cannot be interpreted
having regard exclusively to common law concepts and terminology and that their interpretation
must also be compatible with civil law concepts and terminology. Accordingly federal tax
legislation must be more "civil law friendly" for purposes of its application in the Province of
Quebec.
It should be emphasized further that the requirement of compatibility with provincial private law
extends not only to Quebec civil law but also to the private law of the other provinces and
territories. If there are material differences in the provincial private law of common law
provinces due for example to the specific statute law applicable in a given province, such
differences must be adequately taken into consideration in tax legislation.
As will be seen in Professor David Duff’s article, our courts have played an important role in
interpreting federal tax legislation in light of Canada’s legal duality. In most cases, the courts
have interpreted federal tax legislation so as to respect the civil law tradition in Quebec and the
general common law in the other provinces. Sometimes, the consequence of respecting
provincial private law will be that the tax treatment will differ depending on the province of
application. In a minority of cases, however, the courts have refused to apply the civil law in
Quebec, favouring an interpretation resulting in uniformity of application, admittedly, for tax
equity reasons.
This interpretative approach must now be reconsidered following the adoption of the principle
of complementarity in section 8.1 of the Interpretation Act. This is not to say that the principle
of complementarity mandates tax inequities. Rather it simply means that respect for the diversity
of provincial private law and the equality of the civil law and the common law are also important
legal principles that must be taken into consideration in interpreting federal tax legislation. The
legislator may always derogate from provincial private law and specifically set out its own rules,
where the application of provincial private law leads to differences in tax treatment. The issue is
not one of choosing between tax equity and the respect of provincial legal diversity[120] but
rather one of understanding that, where federal law is silent or incomplete on a subject matter,
provincial private law will complete it.
In closing it may be said that the rules of interpretation in sections 8.1 and 8.2 of the
Interpretation Act now clearly and broadly set the requirement of compatibility with provincial
private law. These rules not only apply to the traditional interpreters like the courts but also to
drafters, policy makers, tax administrators and all readers of bijural tax enactments. These rules
should also inform and influence the development and articulation of tax policy and of tax
planning for effective national and international transactions.


** This paper was first published by the Canadian Tax Foundation Canadian Tax Foundation.
The authors wish to thank Me André Ouellette, Me Martin Lamoureux and all other members
of the Tax Law Team of the Bijuralism and Drafting Support Services Group for their invaluable
assistance with research and the revision of this paper. The opinions expressed are those of the
authors and do not necessarily correspond to the Department of Justice Canada position on any
of the issues.
[1] RSC 1985, c. 1 (5th Supp.) as amended (herein referred to as "ITA").
[2] The expression "common law provinces" is used to refer to all Canadian provinces except
the Province of Quebec and includes the territories.
[3] The Honourable Mr. Justice Michel Bastarache, Supreme Court of Canada, "Bijuralism in
Canada", in The Harmonization of Federal Legislation with the Civil Law of the Province
of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, (Ottawa: Department
of Justice Canada, 2001), 19; Louise Maguire Wellington, "Bijuralism in Canada:
Harmonization Methodology and Terminology", in The Harmonization of Federal Legislation
with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second
Publication, Booklet 4, (Ottawa: Department of Justice Canada, 2001), 1-2.
[4] Lionel A. Levert, "Harmonization and Dissonance: Language and Law in Canada and
Europe – The Cohabitation of Bilingualism and Bijuralism in Federal Legislation in Canada:
Myth or Reality?", in The Harmonization of Federal Legislation with the Civil Law of the
Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, (Ottawa:
Department of Justice Canada, 2001), 6-7. See also "Policy on Legislative Bijuralism", in The
Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and
Canadian Bijuralism. Second Publication, Booklet 4, (Ottawa: Department of Justice
Canada, 2001), Appendix III, 22-23.
[5] October 7, 1763, reprinted in RSC 1985, App. II, No. 1.
[6] Quebec Act, 1774, 14 George III, c. 83 (U.K.), reprinted in RSC 1985, App. II, No. 2,
S.VIII.
[7] Michel Morin, "Introduction historique au droit civil québécois", in Louise Bélanger-Hardy
& Aline Grenon, Éléments de common law et aperçu comparatif du droit civil québécois,
(Scarborough (Ontario) : Thompson Canada Limited, 1997), 62-63; Levert, supra note 4, at 5.
[8] (U.K.), 30 & 31 Vict., c. 3, reprinted in RSC 1985, App. II, No. 5.
[9] See subsection 92(13) Constitution Act, 1867.
[10] See Constitution Act, 1867, subsections 91(18) Bills of Exchange and Promissory Notes,
91(21) Bankruptcy and Insolvency, 91(26) Marriage and Divorce.
[11] St-Hilaire v. Canada (Attorney General), 2001 4 FC 289 (C.A.).
[12] Policy on Legislative Bijuralism, supra note 4, at 23.
[13] Mario Dion, Associate Deputy Minister, Civil Law and Corporate Management,
Department of Justice Canada, "Preface", in The Harmonization of Federal Legislation with
the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication,
Booklet 1, (Ottawa: Department of Justice Canada, 2001), at v-vi. See also Mario Dion,
Associate Deputy Minister, Civil Law and Corporate Management, Department of Justice
Canada, "Legal Perspective of the New Millennium International Meeting of Francophone
Legal Experts – Harmonization of Federal Law with Quebec Civil Law: Canadian Bijuralism
and its Actualization", in The Harmonization of Federal Legislation with the Civil Law of
the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1,
(Ottawa: Department of Justice Canada, 2001), at 28-29.
[14] SQ 1991, c. 64 (herein referred to as "CCQ" or "Civil Code").
[15] Canada, Senate, Proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue 2 – Evidence, Ottawa, March 14, 2001 (available on the web at
http://www.parl.gc.ca/37/1/parlbus/commbus/senate/Com-e/lega-e/02cv-
e.htm?Language=E&Parl=37&Ses=1&comm_id=11 (date accessed: November 1st, 2002).
[16] The Honourable Stéphane Dion, President of the Queen’s Privy Council for Canada and
Minister of Intergovernmental Affairs, "Symposium on the Harmonization of Federal Legislation
with Quebec Civil Law", in The Harmonization of Federal Legislation with the Civil Law
of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1,
(Ottawa: Department of Justice Canada, 2001), at 2; Morris Rosenberg, Deputy Minister of
Justice and Deputy Attorney General of Canada, "Evolution of Legal Systems, Bijuralism and
International Trade (University of Ottawa)", in The Harmonization of Federal Legislation
with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second
Publication, Booklet 1, (Ottawa: Department of Justice Canada, 2001), at 36.
[17] Apportionment (in percentage) of Political Entities according to their Legal System,
University of Ottawa (available on the web at http://www.uottawa.ca/world-legal-systems/eng-
pourcentage.htm) (date accessed: November 4th, 2002).
[18] The Honourable Stéphane Dion, supra note 16, at 4.
[19] See on this subject Jean-Maurice Brisson & André Morel, "Federal Law and Civil Law:
Complementarity, Dissociation", in The Harmonization of Federal Legislation with Quebec
Civil Law and Canadian Bijuralism. Collection of Studies, (Ottawa: Department of Justice
Canada, 1997), 215-264.
[20] Henry L. Molot, "Clause 8 of Bill S-4: Amending the Interpretation Act", in The
Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and
Canadian Bijuralism. Second Publication,Booklet 6, (Ottawa: Department of Justice
Canada, 2001), at 1.
[21] It is mainly in the fields of the law of property and the law of trusts that this duality creates
important differences with the civil law.
[22] Barbara Pierre, "Classification of Property and Conceptions of Ownership in Civil and
Common Law" (1997) 28 R.G.D. 235 at 247.
[23] A.H. Oosterhoff & W.B. Rayner, Anger and Honsberger Law of Real Property, Vol. 1,
2nd ed., (Aurora, ON: Canada Law Books, 1985), at 12-13.
[24][1991] 3 SCR 534.
[25] 41 OR 3d 161.
[26] See for example articles 975 and 1434 CCQ.
[27]Articles 900 to 906 CCQ.
[28] Article 907 CCQ states that "All other property, if not qualified by law, is movable".
[29] Bruce Ziff, Principles of Property Law, 3rd ed. (Scarborough, ON: Carswell, 2000), 73.
[30] Michel Bastarache & Andréa Boudreau Ouellet, Précis du droit des biens réels, 2e Éd.,
(Cowansville QC : Yvon Blais, 2001), 15.
[31] Bastarache & Boudreau Ouellet, supra note 30, at 14; Oosterhoff & Rayner, supra note
23, at 9.
[32] Bastarache & Boudreau Ouellet, supra note 30, at 14; Oosterhoff & Rayner, supra note
23, at 9.
[33] Personal property is not subject to the doctrines of estates and tenures and are thus
considered to be under absolute ownership; Bastarache & Boudreau Ouellet, supra note 30, at
18.
[34]Oosterhoff & Rayner, supra note 23, at 6.
[35]Oosterhoff & Rayner, supra note 23, at 6.
[36] Bastarache & Boudreau Ouellet, supra note 30, at 18.
[37] Oosterhoff & Rayner, supra note 23, at 6 & 11.
[38] Oosterhoff & Rayner, supra note 23, at 7.
[39] Article 1119 CCQ.
[40] Article 1120 CCQ.
[41] Article 1172 CCQ.
[42] Article 1009 CCQ.
[43] Article 1010 CCQ.
[44] Articles 1011 & 1110 CCQ.
[45] Green v. Russell [1959] 2 QB 226, at 241, [1959] 2 All E.R. 525 (CA); Tobin Tractor
(1957) Ltd. v. Western Surety co (1963), 42 WWR 532 at 542.
[46] For a more detailed discussion, see the article by Catherine Brown published hereafter in
this Journal.
[47] A.H. Oosterhoff & E.E. Gillese, Text, Commentary and Cases on Trusts, 5th Ed.,
(Scarborough, ON: Carswell, 1998), 26.
[48] Marcel Faribault, Traité théorique et pratique de la fiducie ou trust du droit civil dans
la province de Québec, (Montréal : Wilson & Lafleur, 1936), 40-45.
[49] Article 869 Civil Code of Lower Canada (herein referred to as "CCLC") stated that "A
testator may name legatees who shall be merely fiduciary or simply trustee for charitable or
other lawful purposes within the limits permitted by law; he may also deliver over his property
for the same objects to his testamentary executors, or effect such purposes by means of charges
imposed upon his heirs or legatees". Article 964 CCLC stated that "The legatee who is
charged as a mere trustee, to administer the property and to employ it or deliver it over in
accordance with the will, even though the terms used appear really to give him the quality of a
proprietor subject to deliver over, rather than that of a mere executor or administrator, does not
retain the property in the event of the lapse of the ulterior disposition, or of the impossibility of
applying such property to the purposes intended, unless the testator has manifested his intention
to that effect. The property in such cases passes to the heir or the legatee who receives the
succession". See also on this subject Faribault, supra note 48, at 40-45.
[50] Articles 981a to 981n were added to the Civil Code of Lower Canada on January 1st
1889 (SRQ 1888, article 5803) after having been first introduced in a distinct act Acte
concernant la fiducie / An Act respecting Trusts (SQ 1879, c. 29) on October 31st 1879.
See Jacques Beaulne, Droit des fiducies, (Montréal: Wilson & Lafleur, 1998), at 2, footnote
3; Also see Faribault, supra note 48, at 45 & 48.
[51] Beaulne, supra note 50, at 1-4. France Allard, "The Supreme Court of Canada and its
Impact on the Expression of Bijuralism", in The Harmonization of Federal Legislation with
the Civil Law of the Province of Quebec and Canadian Bijuralism. Second
Publication,Booklet 3, (Ottawa: Department of Justice Canada, 2001), at 18-19; For a
comprehensive analysis of the debate see Sylvio Normand & Jacques Gosselin, "La fiducie du
Code civil: un sujet d’affrontement dans la communauté juridique québécoise", (1990) 31 Les
Cahiers de Droit 681-730.
[52] Allard, supra note 51, at 18; Beaulne, supra note 50, at 3-4.
[53]Article 1260 CCQ: "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".
[54]Article 1261 CCQ: "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".
[55]Article 1278 CCQ:
"A trustee has the control and the exclusive administration of the trust patrimony, and the titles
relating to the property of which it is composed are drawn up in his name; he has the exercise of
all the rights pertaining to the patrimony and may take any proper measure to secure its
appropriation.
A trustee acts as the administrator of the property of others charged with full
administration".
[56]Article 1284 CCQ: "While the trust is in effect, the beneficiary has the right to require,
according to the constituting act, either the provision of a benefit granted to him or the payment
of both the fruits and revenues and the capital or of only one of these".
[57]Originally, a lessee could only obtain damages under a personal action further to an eviction
by the lessor. The lease was thus classified as personal property. Over time, it could no longer
be denied that the lessee’s interest was closely attached to the land and the courts recognized
towards the end of the 15th century that a lessee could request repossession of the leased land
(action in rem).
[58] Robert Megarry & William Wade, The Law of Real Property, 4th ed., (London: Stevens
and Sons, 1975), at 613.
[59] Bastarache & Boudreau Ouellet, supra note 30, at 78-79.
[60] M-Jane Mossman and William F. Flanagan, Property Law: Cases and Commentary,
(Toronto, ON: Emond Montgomery Publications Ltd., 1998), at 251.
[61]Article 1851 CCQ provides that the:
"[l]ease is a contract by which a person, the lessor, undertakes to provide another person, the
lessee, in return for rent, with the enjoyment of a movable or immovable property for a certain
time.
The term of the lease is fixed or indeterminate".
[62] Article 1854 CCQ:
"The lessor is bound to deliver the leased property to the lessee in a good state of repair in all
respects and to provide him with peaceable enjoyment of the property throughout the term of
the lease.
He is also bound to warrant the lessee that the property may be used for the purpose
for which it was leased and to maintain the property for that purpose throughout the term of the
lease".
Article 1855 CCQ: "The lessee is bound to pay the agreed rent and to use the property with
prudence and diligence during the term of the lease". See also Pierre-Gabriel Jobin, Le louage,
2nd ed. (Cowansville, QC: Editions Yvon Blais, 1996), 27-29.
[63] Article 1890 CCQ:
"Upon termination of the lease, the lessee is bound to surrender the property in the condition in
which he received it but he is not liable for changes resulting from aging or fair wear and tear of
the property or superior force.
The condition of the property may be established by the description made or the
photographs taken by the parties; if it is not so established, the lessee is presumed to have
received the property in good condition at the beginning of the lease".
[64] This portion of the article pertaining to the mortgage/hypothec was written by Me Joseph
Sirois.
[65] See inter alia in Alberta, Land Titles Act, RSA 1980, c. L-5; in British Columbia, Land
Titles Act, RSBC 1996, c. 250 and in Saskatchewan, Land Titles Act, RSS 1978, c. L-5.
For a discussion on the origins of the Torrens system, see Bastarache & Boudreau Ouellet,
supra note 30, at 247-253. See also François Brochu, "Le système Torrens et la publicité
foncière québécoise", McGill Law Journal, Vol. 47, May 2002, no. 3, 625-665.
[66] Noakes v. Rice, [1902] AC 24, 28, 71 L.J. Ch. 139, 141. Lord Halsbury refers to Lord
Lindley in Santley v. Wilde, [1899] 2 Ch. 474, at 474, 68 L.J. Ch. 681, at 686. See J.E.
Roach, Les hypothèques immobilières en common law (Cowansville, QC: Éditions Yvon
Blais, 1991), 5.
[67] John Augustus Barron and Arthur Henry O’Brien, Barron and O’Brien on Chattel
Mortgages and Bills of Sale: a Treaties on the General Law of Mortgages and Sales of
Personal Property, 3rd Edition (Toronto, ON: R.M. Willes Chitty) 2; Sands v. Standard Ins.
Co., 26 Gr. 116; Martin v. Bearman, 45 U.C.Q.B. 205, at 212. Centre de traduction et de
terminologie juridique, Lexique anglais-français de la common law, 2ième éd., (École de droit,
Université de Moncton, 1990).
[68] Article 2660 CCQ.
[69] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
[70] Notes for a speech by the Honourable Anne McLellan, Minister of Justice Canada, at a
"Conference on the Harmonization of Federal Legislation with the Quebec Civil Law and
Canadian Bijuralism", Montreal (Quebec), November 24 1997. (available on the web at
http://canada.justice.gc.ca/en/news/sp/1997/bijur.html)
[71] Maguire Wellington, supra note 3, at 10-11.
[72]Maguire Wellington, supra note 3, at 11.
[73]Maguire Wellington, supra note 3, at 12.
[74] Maguire Wellington, supra note 3, at 8.
[75] Maguire Wellington, supra note 3, at 9; Levert, supra note 4, at 7-8.
[76] Maguire Wellington, supra note 3, at 9.
[77] Maguire Wellington, supra note 3, at 9-10; Levert, supra note 4, at 7-8.
[78] The issue of highlighting terms was raised, among others, by Professor Claude Fabien of
the Law Faculty of the University of Montreal when he was presenting evidence as a witness
before the Standing Senate Committee on Legal and Constitutional Affairs on March 1st 2001.
See Canada, Senate, Proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue 1 – Evidence, Ottawa, March 1st, 2001 (available on the web at
http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/lega-e/01evb-
e.htm?Language=E&Parl=37&Ses=1&comm_id=11 (date accessed: December 19th, 2002).
[79] This issue was also raised by Professor Fabien while appearing before the Standing Senate
Committee on Legal and Constitutional Affairs on March 1st 2001. See Canada, Senate,
Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue
1 – Evidence, Ottawa, March 1st, 2001 (available on the web at
http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/lega-e/01evb-
e.htm?Language=E&Parl=37&Ses=1&comm_id=11 (date accessed: December 19th, 2002).
[80] To that effect see the evidence presented by Professor Alain-François Bisson of the Law
Faculty, Civil Law Section of the University of Ottawa in Canada, Senate, Proceedings of the
Standing Senate Committee on Legal and Constitutional Affairs, Issue 1 – Evidence,
Ottawa, March 1st, 2001 (available on the web at
http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/lega-e/01evb-
e.htm?Language=E&Parl=37&Ses=1&comm_id=11 (date accessed: December 19th, 2002).
Ajouter ici brièvement les autres raisons citées dans la lettre de la ministre
[81]Furthermore, there are several technical difficulties with a marking system. To be effective,
a marking system would have to be applied consistently and failure to mark a legal concept
would be worse than having no marking at all because it could lead to erroneous conclusions.
As well, there would be serious difficulties in determining whether a term or concept should be
marked or not. Finally, a marking system would most certainly enhance the complexity of the
legislation.
[82] Canada, Senate, Proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue 2 – Evidence, Ottawa, March 14 2001 (available on the web at
http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/lega-e/02cv-
e.htm?Language=E&Parl=37&Ses=1&comm_id=11) (date accessed: December 19th, 2002).
[83] http://www.canada.justice.gc.ca/en/ps/bj/harm/.
[84] Infra, note 88.
[85] Infra, note 90.
[86] André Ouellette & Mathieu Legris,« La place du droit privé au sein des lois fédérales :
l’affaire St-Hilaire et les fiches terminologiques bijuridiques », (2002),vol. 23, no 1, Revue de
planification fiscale et successorale, Montréal, Association de planification fiscale et
financière, 2002, pp. 197-216.
[87]Schreiber, infra note 114.
[88] A First Act to harmonize federal law with the civil law of the Province of Quebec
and to amend certain Acts in order to ensure that each language version takes into
account the common law and the civil law (herein referred to as "Federal Law – Civil Law
Harmonization Act, No. 1"), SC 2001, c. 4, which was assented to on May 10th, 2001 and
came into force on June 1st, 2001.
[89] RSC 1985, c. I-21.
[90] Income Tax Amendments Act, 2000, SC 2001, c.17, which was assented to on June
14th, 2001.
[91] RSC 1985, c. E-15 (5th Supp.) as amended (herein referred to as "ETA").
[92] RSC 1985, c. 2 (5th Supp.) as amended.
[93] An Act to amend the Customs Act and to make related amendments to other Acts,
SC 2001, c. 25, which was assented to on October 25th, 2001.
[94]RSC 1985, c. 1 (2nd Supp.).
[95] An Act Respecting the Taxation of Spirits, Wine and Tobacco and the Treatment of
Ships’ Stores, SC 2002, c. 22, which was assented to on June 13th, 2002.
[96] RSC 1985, c. E-14.
[97] Marie-Claude Gervais, "Harmonization and Dissonance: Language and Law in Canada
and Europe – Program to Harmonize Federal Legislation with the Civil Law of the Province of
Quebec, Assumption of Complementarity and Methodological Issues", in The Harmonization
of Federal Legislation with the Civil Law of the Province of Quebec and Canadian
Bijuralism. Second Publication, Booklet 1, (Ottawa: Department of Justice Canada, 2001),
at 18.
[98] Marie-Noëlle Pourbaix, "S-4: A First Harmonization Bill", in The Harmonization of
Federal Legislation with the Civil Law of the Province of Quebec and Canadian
Bijuralism. Second Publication, Booklet 6, (Ottawa: Department of Justice Canada, 2001),
at 7.
[99] For a comprehensive analysis of section 8.1 of the Interpretation Act see Molot, supra
note 20, at 12-19.
[100] Pourbaix, supra note 98, at 7.
[101][1977] 2 SCR 1054.
[102][1977] 2 SCR 654.
[103][1980] 2 SCR 695.
[104] Allard, supra note 51, at 22.
[105]Allard, supra note 51, at 23.
[106] St-Hilaire, supra note 11.
[107] RSC 1985, c. P-36 (herein referred to as "PSSA").
[108][1999] 4 FC 23 (TD).
[109]St-Hilaire, supra note 11.
[110]St-Hilaire, supra note 11.
[111] For a comprehensive analysis of section 8.2 of the Interpretation Act see Molot, supra
note 20, at 12-19.
[112] Pourbaix, supra note 98, at 8.
[113] Gervais, supra note 97, at 17.
[114] Karlheinz Schreiber v. Canada (Attorney General), 2002 SCC 62.
[115] RSC 1985, c. S-18.
[116]Schreiber, supra note 114, paragraph 69.
[117]Schreiber, supra note 114, paragraph 77.
[118] Most of the research reports have been published by the Department of Justice in
collaboration with the APFF: The Harmonization of Federal Legislation with Quebec Civil
Law and Canadian Bijuralism: A Collection of Studies in Tax Law (Montreal, QC: APFF,
2002).
[119] The Department of Justice Canada established the Program of Research Contracts on
Canadian bijuralism to assist the Department in its harmonization work deriving from the
coexistence of Canada’s two private law systems: civil law and common law. The purpose of
this program is also to promote the development of expertise in Canadian bijuralism among law
students and to contribute to the dissemination of knowledge on the subject matter through
publication of legal texts. For more information see the Justice Canada website at
http://canada.justice.gc.ca/en/dept/rc/index.html.
[120]The Honourable Mr. Justice Michel Bastarache, Supreme Court of Canada, stated the
following on the question of legal diversity: "Our objective is legal duality, not necessarily to
achieve one rule to be applied uniformly across Canada; this requires respect for the character
and uniqueness of the concepts and principles of each legal system. The fact that provincial
legislatures may pursue distinctive legal policies which might each be different as well as different
from those of Parliament, is a principal justification for federalism. […] If uniformity was our
goal, what would be the purpose of our federal system and bijural culture? The need to
recognize diversity should not, however, inhibit the need for coherence and the need to reduce
conceptual and linguistic incongruence.", supra note 3, at 24.