1、An Introduction to Canadian Private Law: Common, Civil & Mixed,Professor David Lametti Faculty of Law,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) P
2、ostscript: McGills role in Quebec Civil Law (skip),I: A Brief Introduction to Canada,10 provinces, 3 territories across the North Most recently territory: Nunavut (1999)35 million people 6 million in Quebec,Language & Culture,Mainly English-speaking, but: One officially French speaking province (Que
3、bec), 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,
4、 Alta, NS “francophones hors Qubec”,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, espec
5、ially in Quebec and British Columbia Indian Act: status “Indian” and “Mtis” MANY outstanding legal issues (more later) Not a nice part of our history (Non una bella storia),Settlement Patterns,French came first; Jacques Cartier “discovered” in 16th Century Fish and furs Settlements in Acadie, then Q
6、uebec City and Montreal in 17th century (Samuel de Champlain)Other pockets of settlement in Ontario, WestBrought French language, Catholicism, pre-codal Civil law,Settlement Patterns (2),English came next Newfoundland (fish) Began to settle south of the border (the 13 colonies), crept northward And
7、around James Bay creeping southward, in search of furs,Settlement Patterns (3),Inevitable conflict; Natives took sides English conquered Acadie & “expelled” the Acadians (1758), New France (1759), Treaty of Paris (1763)English brought English language, governance institutions, Protestant religions,
8、a more complex, mercantile trading structure, common law,Population and Expansion,1867: British North America Act creates “Confederation”, Dominion of Canada 4 provinces: Ontario, Quebec, New Brunswick and Nova ScotiaSuccessive provinces carved out of territories of Ruperts Land (Hudson Bay Company)
9、 and North West territory,Canada 1867,Canada 1871,Canada 1905,Immigration,English, Irish Turn of the century Germany, Ukraine, Europe (Italy) Post-War: Europe, especially Italy, Greece, Portugal 70s: South-east Asia, South Asia More recent: Africa (esp. French-speaking), Caribbean, South America, As
10、ia, etc.,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!,Our neighbour to the
11、 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!,Canadian “Context”,Pluralistic Culturally, socially, linguistically, pol
12、itically Large country Relatively under-populated (space for tolerance),II: An Introduction to Canadian Law,Federal system Federal statutes and regulations Provincial statutes and regulationsHow these evolved? Some detail ,Back to History,French brought Civil law Pre-codal, Coutume de Paris was the
13、law of the colony Seigneurial (feudal) system in place resembling manorial legal system in Europe; seigneurial courts,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 guar
14、antee the French language, Civil law, Roman Catholic religion in Quebec Treaty of Paris 1763 Quebec Act 1774,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 an
15、d common socage” (fee) and used the common law Formal “reception” of common law,Civil Code of Lower Canada,1866 Based on Napoleonic Code of 1804 Classical lines of civilian tradition Drafted in both English and French,Confederation 1867,“Table is set” by historical context Partly written constitutio
16、n; partly unwritten Unwritten: parliamentary tradition, rules and procedures Written: division of powers,Canada 1867,BNA Act, 1867 (now Constitution Act,1867),Act of the British Parliament Division of Powers: S. 91: federal powersPeace, Order, and good Government of Canada Trade and Commerce Banking
17、, Incorporation of Banks, and the Issue of Paper Money Bankruptcy and Insolvency.,BNA Act, 1867 (2),Patents of Invention and Discovery, CopyrightsIndians, and Lands reserved for the IndiansThe Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Cr
18、iminal MattersResidual category,BNA Act, 1867 (3),S. 92: provincial powersThe Incorporation of Companies with Provincial Objects Property and Civil RightsAdministration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Cr
19、iminal Jurisdiction, and including Procedure in Civil Matters in those Courts.,Public Law,Federal: Constitutional Criminal (from English common law, but codified) Administrative Income Tax Aboriginal matters,Private Law,Provincial “property and civil rights” But the following are federal Bankruptcy
20、Trade and commerce IP (patent and , but also TM) Therefore overlap, formal mixing, even in Quebec Quebec jurists know a great deal about the common law,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
21、 formal and informal,Courts,The Court System itself : s 92 Provincially run BUT96. 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, no
22、twithstanding 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.,Courts (2),Each province (s.96): Superior
23、 court of general jurisdiction First court in all kinds of cases Appeal Court(s.92) Lower courts for minor matters Traffic offences, minor disputesEffectively a common law model, even in Quebec,Courts (3),Supreme Court of Canada: A s.101 court 9 judges, traditionally 3 from Quebec Other traditional
24、balances: 3 from Ontario, 2 from the West, one from the East5 judges on Civil law cases (3 Quebec + 2 others) Some appeals as of right, the rest by way of “leave to appeal”,Courts (4),Federal Court of Canada: Also a s.101 court Different divisions: (1) Tax (old exchequer court) (2) Federal Court: IP
25、, aboriginal matters, administrative law and tribunal reviewFederal Court of Appeal,Courts,Legal Professions and Education,Common law provinces “Barristers no recommended prior degree Effectively a type of graduate (UK: “post-graduate”) education All English, though Common law in French at Moncton (
26、NB), Ottawa and also McGill (de facto),Legal Professions and Education (2),Quebec “Avocats” and “notaires” Education: European model Usually a first degree; entry after Junior College (CEGEP) Exception: McGill Very few CEGEP entrants (20-30/170) Mainly degree holders All education in French language
27、 except McGill, where it is done in both (traditional English Civil law school),Legal Professions and Education (3),Judiciary English Common law model: 10 years after call one is eligible Fiercely independent and high-quality Especially SCC: highly scrutinized, though not part of formal process (yet
28、) Frank Iacobucci (first Italian Canadian SCC judge from 1991-2004),Future of Canadian “Law”?,Still important changes to comeUnfinished constitution re Quebec: some symbolic recognition as a “distinct society” or “people” is probable (French language but will this amount to legal powers? Aboriginal
29、peoples: symbolic as well as real legal powers over resource management, criminal procedure, social structure Western alienation: power changes as population increasesAdded to ongoing evolution of private law,III: An Overview of Canadian Private Law,Common Law in the 9 provinces; “received” usually
30、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?,Common Law,Generally an English-inspired common law system + Equity Provincial Legal rules still mainly un-codified; found in the cases Supp
31、lemented by statutes Pleading and factum-writing is common law,Common Law (2),Doctrine of Precendent binding and persuasive authority Bound within ones own province, SCC Other provincial Courts of Appeal very persuasive, other courts persuasive,Common Law (3),House of Lords and English Court of Appe
32、al decisions are still very persuasive authority Other major common law jurisdictions: US, AustraliaNo civil law trials by jury,Common Law (4),Substantive law: more British-looking than AmericanNo Restatements British-inspired Sale of Goods Act Still no strict liability (English position pre-EU Dire
33、ctive),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,Common Law (6),Law of Property Much
34、 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,Civil law,CCLC: 1866 Codi
35、fication by three collaborators: two francophones, one anglophone Drafted in either English or French and then translated Classic lines: persons, things, obligations Followed the CN But had a section on corporate law (later excised),Civil law (2),Distinctively civilist code Institutions would be fam
36、iliar to most civilian jurists Property institutions, Obligations (Contracts and civil responsibility),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, P
37、othier, frres Mazeaud True today with Carbonnier, Terr & Simler,Civil law (4),“La doctrine au Qubec” 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 lang
38、uages,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,Civil law (6),Common law influence Doctrinally too Doctrines under constant s
39、crutiny Ex: secured lending in CCQ is similar to PPSA and UCC article 9 Damages: the norm in compensation in practiceRecommended reading: Quebec Civil Law, edited by Brierley & Macdonald,Civil law (7),Common law intrusions The trust Very powerful, very wealthy anglophone community in Montreal that w
40、anted to use the trust, often for beneficial purposes (many McGill-related trust cases, including the main building which houses the Law Faculty!) Trust provisions added very early on to CCLC,Civil law (8),The Trust Defined skeletally, only in terms of its powers, etc No mention of patrimony No ment
41、ion 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,Civil Code of Quebec 1991-4,Long process of reform History/inspiration Rise of Quebec nationalism S
42、ome 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),Civil Code of Quebec 1991-4 (2),Civil Code Revision Office Draft Civil Code (Prof. Pau
43、l-Andr Crpeau) 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,Civil Code of Quebec 1991-4 (3),French version very wordy, inelegant
44、English translation poorly and hastily done Government argued that the French version was authoritative SCC: Dor c. Verdun, Brierley, Boodman, Kasirer et al. (1997) corrected this: both languages official Government has since taken steps to improve the English text,CCQ,Most important element of Queb
45、ec Civil Law 10 books: persons, family, successions, property, obligations, prior claims and hypothecs, evidence, prescription, publication of rights, PrILBut also doctrine and cases, droit commun, older statutesAlso a Code of Civil Procedure,CCQ (2),Attempts to modernize certain doctrines Resolutio
46、n of option-cumul debate: 1458 CCQ Bound by the contract (Crpeau) Foreseeability of damages (contract foreseeable; direct and immediate) Codification of PrIL (mainly judge-made in France; very European Swiss PrIL, Hague Conventions,CCQ (3),Attempts to modernize certain doctrines Products liability:
47、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,Conclusions: Canadian Private Law,9 common law jurisdictions, 1 mixed Virtually all of the influence runs o
48、ne 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,Canadian Private Law (2),Most likely trend is increasing influence of US common law and e
49、specially via statutes, arbritration mechanisms in the FTA and NAFTA on all jurisdictions Economies are increasingly integrated (Will Civil law in Mexico have a moderating influence on US legal expansion/influence?),Quebec Civil Law (1),Future of Quebec Civil law? Is the mixed jurisdiction sustainab
50、le?Mixed? Or just mixed up?!,Quebec Civil Law (2),Factors pointing to sustainability? Positive: Pride, Tradition and Language Part of how Qubecois define themselves; socit distincte, un peuple, un pays Language keeps active ties to Continent; lawyers and universitaires (unlike Louisiana, for example),
