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Federalism and Legal Unification pp 169–190Cite as

Unification of Laws in Federal Systems: The Canadian Model

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Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 28))

Abstract

Following an overview of Canada’s historical and social situation, the author describes the division of legislative power between the federal Parliament on the one hand and the provincial legislatures on the other. This is followed by a description of the various means and methods of legal unification (federal, provincial, courts, Uniform Law Conference of Canada, legal profession, law schools, among other factors). The chapter ends with the state of unification in Canada. In the chapter, the author emphasizes the difference between the federal and provincial concepts of harmonization. At the federal level, the various harmonization initiatives stem in part from articles 8.1 of the Interpretation Act of Canada, according to which both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada. For the reasons explained in the report, this can give rise in certain circumstances to federal enactments that are applied differently in Quebec and in the common law parts of Canada.

Aline Grenon, Full professor, Faculty of Law, University of Ottawa, Ottawa, Canada; also member of the bars of Ontario and Quebec. A version of this report has been published in Nathalie Vézina, dir., Le droit uniforme: limites et possibilités, Cowansville (Québec), Yvon Blais, 2009, 33–61.

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Notes

  1. 1.

    Section VIII of the Quebec Act, 1774 (U.K.), 14 George III, c. 83, reprinted in R.S.C. 1985, App. II, No. 2. For more detailed descriptions of the legal upheavals during this period, see Henri Brun, “Le territoire du Québec: à la jonction de l’histoire et du droit constitutionnel” (1992) 33 C. de. D. 927; Michel Morin, “Les changements de régimes juridiques consécutifs à la Conquête de 1760” (1997) 57 R. du B. 689; see also Peter W. Hogg, Constitutional Law of Canada, looseleaf, 5th ed. (Toronto: Carswell, 2007) at 2.1–2.10 [Hogg].

  2. 2.

    (U.K.), 31 George III, c. 31, reprinted in R.S.C. 1985, App. II, No. 3.

  3. 3.

    Upper Canada Statutes, 1792, 32 Geo. III, c. I, s. III.

  4. 4.

    The civil law of Quebec was first codified in 1866; see An Act respecting the Civil Code of Lower Canada, S. Prov. C. 1865 (29 Vict.), c. 41.

  5. 5.

    (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [“Constitution Act, 1867”].

  6. 6.

    Statistics Canada, online: www.statcan.ca

  7. 7.

    See Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

  8. 8.

    For a detailed analysis of these issues, see Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996); see also People to People, Nation to Nation. Highlights from the Report of the Royal Commission on Aboriginal Peoples, online: Indian and Northern Affairs Canada (http://www.ainc-inac.gc.ca/ch/rcap/rpt/index_e.html)

  9. 9.

    For more information relating to the distribution of legislative power in Canada, see Hogg, supra note 1 and Patrick J. Monahan, Constitutional Law, 3rd ed. (Toronto: Irwin Law, 2006).

  10. 10.

    Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, reprinted in R.S.C. 1985, App. II, No. 44.

  11. 11.

    Constitution Act, 1871 (U.K.), 34 & 35 Vict., c.28, reprinted in R.S.C. 1985, App. II, No. 11.

  12. 12.

    See Peter W. Hogg, Q.C. & Wade K. Wright ˝Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate About Canadian Federalism˝ (2005) 38 U.B.C. L. Rev. 329 at para. 22; see also Lord Watson in Ontario (A.-G.) v. Canada (A.-G.), [1896] A.C. 348 at 365 (often described as the Local Prohibitions Case).

  13. 13.

    The leading case is Citizens Insurance Co. v. Parsons (1881), 8 App. Cas. 406.

  14. 14.

    Garth Stevenson, “Federalism and Intergovernmental Relations” in Michael Whittington & Glen Williams, eds., Canadian Politics in the 21st Century (Scarborough: Nelson, 2000) 79 at 88. However, this statement is now less accurate with respect to municipal institutions; for example, the 2004 federal budget provided municipalities with a goods and services tax rebate worth $7 billion over 10 years for their areas of greatest need and the 2005 budget provided $5 billion over 5 years in gas tax funds, together with a commitment of up to $800 million for transit funding (see http://www.infc.gc.ca/media/news-nouvelles/gtf-fte/2005/20050823saskatoon-eng.html)

  15. 15.

    See the British North America Act, 1951 (U.K.), 14 & 15 Geo. VI, c. 32 and the Constitution Act, 1964 (U.K.), 1964, c. 73.

  16. 16.

    Quebec Pension Plan, S.Q. 1965, c. 24.

  17. 17.

    The leading case is Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3. See also A.G. Canada v. Hydro Quebec, [1997] 3 S.C.R. 213; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241 at para. 33.

  18. 18.

    It must, however, be noted that the Constitution Act, 1867 refers specifically to criminal and civil procedure. Section 92(14) of [the Constitution] gives jurisdiction to the provinces with respect to the “Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts” [emphasis added]. Section 91(27) gives jurisdiction to the Parliament of Canada with respect to “[…] Procedure in Criminal Matters”.

  19. 19.

    With regard to the absence of federal legislation in this area, see Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, looseleaf (Scarborough, Ont.: Carswell, 2004) at 9–20. With regard to provincial legislation, see for example, Statutory Powers Procedure Act, R.S.O. 1990, c. S-22; see also the model administrative procedure code proposed by the Uniform Law Conference of Canada at http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1m3

  20. 20.

    Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146 at para. 51.

  21. 21.

    On December 5, 2003, the Council of the Federation was created. The Premiers of Canada’s ten provinces and three territories are members of the Council. As stated on its website (www.councilofthefederation.ca), the objectives of the Council are to: “promote interprovincial-territorial cooperation and closer ties between members of the Council, to ultimately strengthen Canada; foster meaningful relations between governments based on respect for the Constitution and recognition of the diversity within the federation; [and] show leadership on issues important to all Canadians”. Such an institution will, it is hoped, prove useful in resolving the many conflicts that arise between the provinces or between the federal and provincial governments.

  22. 22.

    Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121.

  23. 23.

    Sections 55–58 & 90 allow the Parliament of Canada to (1) disallow or nullify any law passed by a province within 2 years of its enactment; (2) disallow provincial laws relating to education and even enact remedial legislation; (3) instruct the lieutenant governors of the provinces to withhold consent to provincial bills or to reserve them for the consideration of Parliament. In addition, section 94 of the Constitution Act, 1867 granted to Parliament the power to enact laws providing for the uniformity of laws dealing with property and civil rights in Ontario, New Brunswick and Nova Scotia (Quebec was excluded). However, such a federal law could only take effect if the provinces in question adopted and enacted it and no such law has ever been enacted.

  24. 24.

    Since the Constitution is silent in this regard, the federal spending power is inferred from other powers (to levy taxes, to legislate in relation to “public property” and to appropriate federal funds). See Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 567; Hogg, supra note 1 at 6.8 “Spending Power”.

  25. 25.

    R.S.C. 1985, c. C-6.

  26. 26.

    See A new division of Canada’s financial resources: report (Quebec, Commission sur le déséquilibre fiscal, 2002), online: Commission sur le déséquilibre fiscal (http://www.desequilibrefiscal.gouv.qc.ca/en/document/rapport_final.htm); see also Alain Noël, Nicolas Marceau, Andrée Lajoie, Luc Godbout, “Déséquilibre fiscal – Le problème demeure entier” Le Devoir (17 June 2008) A7.

  27. 27.

    The Supreme Court of Canada held in 2011 that the proposal of the federal government was not valid under section 91(2) of the Constitution Act, 1867; see Reference Re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837. The federal government has now begun a process of cooperative negotiations with the provinces with a view to creating the Cooperative Capital Markets Regulators (CCMR), to be based in Toronto and to be responsible for overseeing common national rules. This involves the passing of matching provincial legislation allowing the provinces to retain ultimate legislative authority over the subject; see Barrie McKenna et al., ``Ottawa renews push for national securities regulator'', The Globe and Mail (19 September 2013) online: http://www.theglobeandmail.com; see also Gorden Isfeld & Barbara Shecter, ``Jim Flaherty: Ottawa, B.C. and Ontario agree to establish co-operative securities regulator''. Financial Post (19 September 2013) online: http://business.financialpost.com.

  28. 28.

    The terms “bijural” and “bijuralism” are Canadian neologisms coined to reflect the co-existence of civil law in Quebec and the common law elsewhere in Canada with respect to matters of private law (“property and civil rights”). Given the growing importance of aboriginal law in Canada and the existence of variations in the law from one province to the other (not only between Quebec and the other provinces, but also among the common law provinces), Canada is occasionally referred to as being multijural or plurijural. In that particular context, use of the terms “multijural” and “plurijural” is accurate. Although it can be argued that there are three legal traditions in Canada (aboriginal, civil law, and common law) and perhaps more than three if the aboriginal tradition is subdivided into different components, only two legal traditions have primary relevance in the context of property and civil rights, which fall within the jurisdiction of the Canadian provinces. These matters are regulated by the civil law applicable in Quebec, and by the common law applicable elsewhere in Canada. In these circumstances, the term “bijural” and its companion term “bijuralism” are appropriate, since they refer to the two legal traditions that form the basis of provincial jurisdiction in matters relating to property and civil rights.

  29. 29.

    R.S.C. 1985, c. I-21; ss. 8.1 and 8.2 were added to the Interpretation Act by the Federal Law—Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 8.

  30. 30.

    For more information relating to bijural federal legislation and the harmonization process, see Canadian Legislative Bijuralism Site, online: Department of Justice Canada (http://www.bijurilex.gc.ca); see also, Aline Grenon, “The Interpretation of Bijural or Harmonized Federal Legislation: Schreiber v. Canada (A.G.)”, Case Comment, (2005) 84 Can. Bar. Rev. 131 at 134–149.

  31. 31.

    But see infra notes 33 & 34 and accompanying text.

  32. 32.

    Valin v. Langlois (1879), [1880] 3 S.C.R. 1 at 19; Ontario (A.G.) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206 at 217.

  33. 33.

    See e.g. Re Giffen, [1998] 1 S.C.R. 91, where the Supreme Court resolved conflicting approaches of the Ontario and Saskatchewan court of appeals, relating to personal property security.

  34. 34.

    See Lefebvre (Trustee of); Tremblay (Trustee of), 2004 SCC 63, [2004] 3 S.C.R. 326; Ouellet (Trustee of), 2004 SCC 64, [2004] 3 S.C.R. 348.

  35. 35.

    In this regard, see Aline Grenon, La problématique entourant les « sûretés-propriétés » au Québec: Lefebvre (Syndic de); Tremblay (Syndic de) et Ouellet (Syndic de)” (2005) 35 R.G.D. 285.

  36. 36.

    See online: Uniform Law Conference of Canada (http://www.ulcc.ca); for a recent article relating to the ULCC, see Arthur Close, “The Uniform Law Conference and the Harmonization of Law in Canada” (2007) 40 U.B.C. L. Rev. 535 [Close].

  37. 37.

    Jacob S. Ziegel, “Harmonization of Private Laws in Federal Systems of Government: Canada, the USA, and Australia” in Ross Cranston, ed., Making Commercial Law: Essays in Honour of Roy Goode (Oxford: Clarendon Press, 1997) 131 at 145.

  38. 38.

    Ibid. at 154–155.

  39. 39.

    See e.g. the Status of Uniform Acts Recommended by the Commercial Law Strategy, online: Uniform Law Conference of Canada (http://www.ulcc.ca/en/civil-section/27-civil-section-commercial-law-strategy)

  40. 40.

    Ibid.

  41. 41.

    See the websites of these law schools for further information relating to these programs. Law students elsewhere in Canada who wish to acquire such an education have to transfer to another law school.

  42. 42.

    See www.flsc.ca

  43. 43.

    See www.nji.ca

  44. 44.

    See www.ccir-ccrra.org

  45. 45.

    See www.csa-acvm.ca

  46. 46.

    See supra note 26 and accompanying text.

  47. 47.

    See Selected Uniform Statutes in alphabetical order, online: Uniform Law Conference of Canada (http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1i6); see also Close, supra note 36 at 553, n. 44.

  48. 48.

    1 July 1985, Can. T.S. 1993 No. 2, (entered into force in Canada1 January 1993).

  49. 49.

    11 April 1980, Can. T.S. 1992 No. 2, (Also known as the Vienna Convention of 1980, entered into force in Canada 1 May 1992).

  50. 50.

    26 October 1973, Can. T.S. 1978 No. 34, (entered into force in Canada 9 February 1978).

  51. 51.

    Much of the information in this section is contained in the preliminary chapter of the following book: Aline Grenon & Louise Bélanger-Hardy, eds., Elements of Quebec Civil Law – A Comparison with the Common Law of Canada (Toronto: Thomson Carswell, 2008) at 10–21.

  52. 52.

    In this regard, it must be noted that provincial law can vary not only between Quebec and the common law provinces, but also among the common law provinces.

  53. 53.

    2005 SCC 52, [2005]2 S.C.R. 564 [D.I.M.S.].

  54. 54.

    R.C.S. 1985, c. B-3.

  55. 55.

    See John A.M. Judge & Margaret E. Grottenthaler, “Legal and Equitable Set-Offs” (1991) 70 Can. Bar Rev. 91 at 117.

  56. 56.

    See arts. 1672–1682, 2644 C.C.Q.

  57. 57.

    For a recent article pertaining to article 8.1 of the Interpretation Act and its role at the Supreme Court of Canada, see Aline Grenon, “Le bijuridisme canadien à la croisée des chemins? Réflexions sur l’incidence de l’article 8.1 de la Loi d’interprétation”, (2011) 56 McGill L. J. A slightly modified and up-dated English version of this article will be published in 2014 in the Osgoode Hall Law Journal.

  58. 58.

    Frédérique Sabourin, “Les lois de la CHLC et le Code civil du Québec” (Paper presented to the annual meeting of the Uniform Law Conference of Canada, St. John’s, Newfoundland and Labrador, 21–25 August 2005) [original French version available at http://ulcc.ca/fr/poam2/ULCC_Acts_Quebec_Civil_Code_Fr.pdf; English translation available at http://ulcc.ca/en/poam2/ULCC_Acts_Quebec_Civil_Code_En[1].pdf]

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  1. Faculty of Law, Common Law Section, French Common Law Program, University of Ottawa, Ottawa, ON, Canada

    Aline Grenon

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  1. Eric Stein Collegiate Professor of Law, University of Michigan Law School, Ann Arbor, Michigan, USA

    Daniel Halberstam

  2. Hessel E. Yntema Professor of Law, University of Michigan Law School, Ann Arbor, Michigan, USA

    Mathias Reimann

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Grenon, A. (2014). Unification of Laws in Federal Systems: The Canadian Model. In: Halberstam, D., Reimann, M. (eds) Federalism and Legal Unification. Ius Gentium: Comparative Perspectives on Law and Justice, vol 28. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7398-1_7

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