Canadian Legal System: A Comparative Analysis of Common Law and Civil Law in Canada, Slides of Civil Law

Download Canadian Legal System: A Comparative Analysis of Common Law and Civil Law in Canada and more Slides Civil Law in PDF only on Docsity! An Introduction to Canadian Private Law: Common, Civil & Mixed Docsity.com PLAN • I: A Brief Introduction to Canada • II: An Introduction to Canadian Law • III: An Overview of Canadian Private Law • IV: Quebec Civil Law • VI: Civil Law Property (skip) • V: Common Law Property (skip) • Postscript: McGill’s role in Quebec Civil Law (skip) Docsity.com Language & Culture • Mainly English-speaking, but: – One officially French speaking province (Quebec), with large anglophone, “allophone” minorities – One officially bilingual by choice (NB) – One officially bilingual by judicial decision (Manitoba); Manitoba Language Ref. (SCC 1984) – One functionally bilingual with about 1 million francophones (Ontario) – Pockets of French speakers in Manitoba, Sask, Alta, NS “francophones hors Québec” Docsity.com Aboriginal Peoples • Many “peoples” (Nations, tribes, etc.) • “First Nations” with varying practices from sedentary agriculture to nomadic hunters and fishers • Some came to treaties with the English settlers (no formal treaties with the French); others never did, especially in Quebec and British Columbia • Indian Act: status “Indian” and “Métis” • MANY outstanding legal issues (more later) • Not a nice part of our history (Non è una bella storia…) Docsity.com Settlement Patterns • French came first; Jacques Cartier “discovered” in 16th Century • Fish and furs • Settlements in Acadie, then Quebec City and Montreal in 17th century (Samuel de Champlain) • Other pockets of settlement in Ontario, West • Brought French language, Catholicism, pre-codal Civil law Docsity.com Population and Expansion • 1867: British North America Act creates “Confederation”, Dominion of Canada • 4 provinces: Ontario, Quebec, New Brunswick and Nova Scotia • Successive provinces carved out of territories of Rupert’s Land (Hudson Bay Company) and North West territory Docsity.com Canada 1867 Docsity.com Canada 1871 Docsity.com Immigration • Profound impact on country; changing character • Multicultural “mosiac”, enshrined in Charter of Rights and Freedoms • Strong tendency to keep mother tongues • Strong tendency towards tolerance • World Cup, European Cup are arguably more fun in Montreal and Toronto! Docsity.com Our neighbour to the south… • Overwhelming impact throughout Canadian history • Preponderant Political, Economic, Social, Cultural impact • Created interesting cultural reactions… • “a mouse in bed with and elephant”: be careful when the elephant rolls over! Docsity.com Canadian “Context” • Pluralistic – Culturally, socially, linguistically, politically • Large country • Relatively under-populated (space for tolerance) Docsity.com Arrival of the English • Common law in Nova Scotia, Newfoundland, New Brunswick; not feudal (land grants in fee) • (but in Quebec, confusion!) • Unlike Acadia, English moved quickly to guarantee the French language, Civil law, Roman Catholic religion in Quebec – Treaty of Paris 1763 – Quebec Act 1774 Docsity.com British North America • Influx of United Empire Loyalists from the US after 1776 • New colony: Upper Canada split from Lower Canada • But even within Quebec, UELs were given land grants in “free and common socage” (fee) and used the common law • Formal “reception” of common law Docsity.com Civil Code of Lower Canada • 1866 • Based on Napoleonic Code of 1804 • Classical lines of civilian tradition • Drafted in both English and French Docsity.com BNA Act, 1867 (now Constitution Act,1867) • Act of the British Parliament • Division of Powers: S. 91: federal powers – Peace, Order, and good Government of Canada – Trade and Commerce – Banking, Incorporation of Banks, and the Issue of Paper Money – Bankruptcy and Insolvency. Docsity.com BNA Act, 1867 (2) – Patents of Invention and Discovery, Copyrights – Indians, and Lands reserved for the Indians – The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters – Residual category Docsity.com BNA Act, 1867 (3) • S. 92: provincial powers – The Incorporation of Companies with Provincial Objects – Property and Civil Rights – 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. Docsity.com Private Law (2) • Quebec: Civil law – Civil Code of Lower Canada had been enacted the previous year, 1866 • Other provinces: common law – Reception was both formal and informal Docsity.com Courts • The Court System itself : s 92 – Provincially run • BUT… • 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. • 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. Docsity.com Courts (2) • Each province (s.96): – Superior court of general jurisdiction • First court in all kinds of cases – Appeal Court – (s.92) Lower courts for minor matters • Traffic offences, minor disputes – Effectively a common law model, even in Quebec Docsity.com Courts (4) • Federal Court of Canada: – Also a s.101 court – Different divisions: • (1) Tax (old exchequer court) • (2) Federal Court: IP, aboriginal matters, administrative law and tribunal review – Federal Court of Appeal Docsity.com Courts Supreme Court of Canada (Fed) Federal Court of Appeal (Fed) Provincial Courts of Appeal (Prov-Adm, Fed-App’t) Quebec Court of Appeal (Prov-Adm, Fed-App’t) Federal Court Trial Division (Fed) Superior/ Supreme Courts (Prov-Adm, Fed-App’t) Quebec: Cour supérieure (Prov-Adm, Fed-App’t) Admin. Tribunals (Fed) Tax Court (Fed) Provincial Courts (Prov.) Cour de Québec (Prov.) Docsity.com Legal Professions and Education • Common law provinces – “Barristers & solicitors”, but unified in powers – Specialization in some practices depending on size of firm and location • Education: North American model – Second or third degree; no recommended prior degree – Effectively a type of graduate (UK: “post-graduate”) education – All English, though Common law in French at Moncton (NB), Ottawa and also McGill (de facto) Docsity.com Future of Canadian “Law”? • Still important changes to come • Unfinished constitution re – Quebec: some symbolic recognition as a “distinct society” or “people” is probable (French language & culture, Civil law); but will this amount to legal powers? – Aboriginal peoples: symbolic as well as real legal powers over resource management, criminal procedure, social structure – Western alienation: power changes as population increases • Added to ongoing evolution of private law Docsity.com III: An Overview of Canadian Private Law • Common Law in the 9 provinces; “received” usually in a formal statute, as of a certain date • Civil law in Quebec (but with a common law style administration; both courts and judges…) • What of the Civil law itself? Docsity.com Common Law • Generally an English-inspired common law system + Equity • Provincial • Legal rules still mainly un-codified; found in the cases • Supplemented by statutes • Pleading and factum-writing is common law Docsity.com Common Law (4) • Substantive law: more British-looking than American • No Restatements • British-inspired Sale of Goods Act • Still no strict liability (English position pre-EU Directive) Docsity.com Common Law (5) • Exceptions where US has been influential: – Class actions (Quebec since 1978; 1992 in Ontario; other provinces adopting legislation) – Punitive damages (but still less than US) – Secured lending: UCC- inspired (Article 9) system in provincial PPSAs Docsity.com Common Law (6) • Law of Property – Much like the UK, pre-1925 – Property estates (mainly fee simple, life estate) – Leaseholds, but traditional leaseholds in the English experience not common • Innovation on trusts – Use of the constructive trust perhaps more common in Canada than UK • Civil law: economic loss, good faith Docsity.com Civil law (3) • “La doctrine” – Also classically Civilist – Commentary on the Code, furnishing examples and clarifying texts – Primarily in French, but also English – Also looked to French doctrinal texts, Pothier, frères Mazeaud – True today with Carbonnier, Terré & Simler Docsity.com Civil law (4) • “La doctrine au Québec” – Now some very established traditional texts – Jean-Louis Beaudouin on Obligations – D.-C. Lamontagne on Biens (previously Marler, an English-language text on property…) – also scholarly articles in both languages Docsity.com Civil law (5) • Common law influence • Procedurally – Judges act like common law judges; do not inquire; adversarial – Cases: reported from the beginning – Treated as authoritative from the beginning – Common law way of thinking Docsity.com Civil law (8) • The Trust – Defined skeletally, only in terms of its powers, etc – No mention of patrimony – No mention of ownership – Courts: eventually ruled that trust corpus was “owned” by the trustee, but said nothing about the patrimony – Common law: used to fill out the body of rules relating to trusts in Quebec Docsity.com Civil Code of Quebec 1991-4 • Long process of reform • History/inspiration – Rise of Quebec nationalism – Some sense of pride in the Civil law as a distinctive part of Quebecois culture (along with language and religion, though like France is very secular) – Some sense that this tradition was under threat (like language) Docsity.com Civil Code of Quebec 1991-4 (2) • Civil Code Revision Office – Draft Civil Code (Prof. Paul-André Crépeau) – Family law parts implemented quickly – Others languished in the 70s and early 80s • Finally whole code re-written, rather hastily in the late 80s by fonctionnaires and only in French; passed in 1991; promulgated in 1994 Docsity.com CCQ (2) • Attempts to modernize certain doctrines • Resolution of option-cumul debate: 1458 CCQ – Bound by the contract (Crépeau) – Foreseeability of damages (contract foreseeable; direct and immediate) • Codification of PrIL (mainly judge-made in France; very European – Swiss PrIL, Hague Conventions Docsity.com CCQ (3) • Attempts to modernize certain doctrines • Products liability: copies European Directive • Economic loss is allowed: Spar Aerospace • Secured lending • Property: trust, usufruct, substitution, divided co-ownership (condos) • Some attempt to codify basic doctrines Docsity.com Conclusions: Canadian Private Law • 9 common law jurisdictions, 1 mixed • Virtually all of the influence runs one way – Common law (SCC) has flirted with economic loss in a number of cases, but it is not clear – Otherwise, little Civil law influence on the common law – Vast majority of anglophone Canadians do not speak French Docsity.com Quebec Civil Law (2) • Factors pointing to sustainability? – Positive: Pride, Tradition and Language – Part of how Québecois define themselves; société distincte, un peuple, un pays – Language keeps active ties to Continent; lawyers and universitaires – (unlike Louisiana, for example…) Docsity.com Quebec Civil Law (3) • Modern Civil law in a mixed system • Quite exportable, especially because of French & English, affinity with common law • Strong future, VERY-well entrenched in Quebec and in Canada Docsity.com IV: Quebec Civil law • CCQ, cases, doctrine, CCLC and previous statutes • French influence, common law influence, other European influence, but not much yet– BGB ? Docsity.com CCQ: Basic Doctrines & Rights (2) 2. Every person has a patrimony. That patrimony may be divided or appropriated to a purpose, but only to the extent provided by law. 2. Toute personne est titulaire d’un patrimoine. Celui-ci peut faire l’objet d’une division ou d’une affectation, mais dans la seule mesure prévue par la loi. Docsity.com CCQ: Basic Doctrines & Rights (3) 3. Every person is the holder of personality rights, such as the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable. 3. Toute personne est titulaire de droits de la personnalité, tels le droit à la vie, à la inviolabilité et à l’intégrité de sa personne, au respect de son nom, de sa réputation et de sa vie privée. Ces droits sont incessibles. Docsity.com CCQ: Basic Doctrines & Rights (4) “In our view, the right to one’s image, which has an extrapatrimonial and a patrimonial aspect, is an element of the right to privacy under s. 5 of the Quebec Charter.” Aubry v. Vice-Versa, [1998] S.C.C Docsity.com The Domains of Common Law Property • Overlapping Domains PUBLIC & PRIVATE Docsity.com The Domains of Common Law Property • Overlapping Domains PUBLIC & PRIVATE ABORIGINAL Docsity.com Aboriginal Rights • Of increasing significance, symbolic and economic • S. 35: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. • (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. Docsity.com Common Law Property • Reflects HISTORY of CL and Equity • Reflects the law of property at the date of reception – Means that some English reforms may not be incorporated (1925, but also previous Acts!) – But some reception statutes restricted to “local conditions”, such that some classic statutes (Quia Emptores 1290, Statute of Tenures 1660) might not apply • Reflects specific Imperial Statutes • Reflects ongoing absorption of English (and to a lesser extent US, Australian, NZ) common law Docsity.com Structure of Common Law Property • Real versus Personal Property • Realty: Doctrine of estates; held of the Crown • Personalty: held directly, absolute Docsity.com Realty or Real Property • Corporeal (hereditaments) (possessory) – estates • Incorporeal (non-possessory): (iura in re aleina) easements, profits à prendre, restrictive covenants Docsity.com VI: Civil Law Property • Historical Context: Domains • Legal Context: Public Law, Civil Code of Quebec & Emerging notion of Aboriginal Title and Aboriginal Rights Docsity.com The Domains of Quebec Civil Law Property • Overlapping Domains PRIVATE (Civil Law) Docsity.com The Domains of Quebec Civil Law Property • Overlapping Domains PUBLIC (Common Law) PRIVATE Docsity.com Patrimonial Rights Extra-patrimonial Rights [Aubry v. Vice-Versa] Real Rights Personal Rights Ownership 947 Special Modes Co-ownership [1010] Superficies [1011] Dismemberments [1119] Usufruct [1120] Servitude [1177] Emphyteusis [1195] Innominate Real Rights? Docsity.com Ownership: Basic Provision 947. Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Ownership may be in various modes and dismemberments. 947. La propriété est le droit d’user, de jouir et de disposer librement et complètement d’un bien, sous réserve des limites et des conditions d’exercice fixées par la loi. Elle est susceptible de modalités et de démembrements. Docsity.com Divided Co-ownership • Conflicts with the Charter & with the law of contractual obligations? • Anselem (2004) SCC – Posh condo units in an area of Montreal with a very large orthodox Jewish population – Condo rules say no structures on balcony; Anselem: Sukkah erected for Jewish holiday Sukkot – Contract of purchase; freedom of religion creeps in Docsity.com (Real) Servitude (2) • Restraint of trade clauses • “Steinberg servitude” • Standard Life: Quebec Court of Appeal (2004) – Not a real servitude as it does benefit the immovable Docsity.com Property: Common vs Civil • Novel claim? – Personality Right – Spleen – IP rights • Difference in substance; method • Attitude: Haldane vs Mignault on numerus clausus Docsity.com Numerus Clausus? • Matamajaw case – Quebec case, through Supreme Court all the way to the Judicial Committee of the Privy Council – Sir George Stephen, Lord Mount Stephen buys a right to fish …for $25,000 Cdn in late 19th century Docsity.com