Drafting against a background of differing legal systems: Canadian bijuralism Marc Cuerrier

Some major differences between common law and civil law

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Some major differences between common law and civil law

There are numerous differences between the civil and the common law systems; similarly, there are also many differences between common law jurisdictions and civil law jurisdictions as between themselves. For the purpose of our discussion we will look at the most important differences that form the general characteristics belonging to the family of common law and of civil law systems.

The civil law tradition, it has been said, can be distinguished from the common law tradition essentially by its method, that is, its rules of interpretation, the different hierarchy of its sources and its inductive reasoning.33

The primary source of civil law is not case law but legislation. Case law is only a secondary source of law although it enjoys a growing importance, as does legislation in common law systems. The civil law system is organized in the form of a single corpus of legislated rules, a code that purports to unify, systemize and prioritize these rules, thereby providing a global approach to, and vision of, the law. Civil law strives to present law as a complete and logical suite of rules set out in clearly defined categories and expressed as general rules that show a distinct taste for structure and normative synthesis.34 Common law by contrast is less preoccupied by structure and organization and focuses on the case at hand and how it relates to previous cases.

The difference in the primacy of legislated law as a source of law is another fundamental characteristic of civil law. It explains differences in how the silence of the law or how uncertainties in the law are addressed. The code is the starting point of all legal enquiries as it contains the “common law” or jus commune, the general law or the law of general application that governs all matters in the absence of special legislation.35 In other words it contains rules of general application that act as a default system or that apply a priori in all matters. In the common law system, statute law or legislated law does not supplement the common law. It will usually be the opposite. Codifications, however extensive, are never really independent from the common law. The common law, as discovered, expressed and reformulated by the judges, provides the fundamental normative basis that supplements the uncertainties and silences of statute law. Thus the attitude towards legislated law and the approach to the interpretation of legislation is markedly different in civil and common law. The civil law system’s view of the legislated law as the primary source of law and as the jus commune requires considerable sympathy for the intention of the legislator, whereas the common law system’s vision of the primacy of judge-made law and the often purely derogatory role of statute law has encouraged, historically, a narrower interpretation of the legislated rules.36 Although this suspicious attitude, leading to narrow interpretation of legislated law, has tended to fade off with the proliferation of modern legislation, statute law or legislated law is still often regarded as a secondary source of law, not as the law of general application.

A final aspect of the differences in method between common and civil law is the inductive reasoning typical of the common law and the deductive reasoning that characterizes civil law. Common law is created (or discovered) incrementally from the bottom up through the process of generalizing common points with previous cases. A general rule is inferred from the ratio decidendi of previous
32 See 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, 2nd publication, booklet 4, pp. 4, 5, 6; available online: Canadian Legislative Bijuralism Site: www.bijurilex.gc.ca. 33 Bastarache, supra note 15 at 19. 34 Brierley & MacDonald, supra note 1 at p. 99, and Alain François Bisson in his contribution “Caractéristiques et méthodes du droit civil” to Louise Bélanger-Hardy and Aline Grenon, (ed.) Éléments de common law, (Toronto: Carswell 1997), at pp. 155-156. 35 Bisson, ibid. 36 Pierre-André Coté, The Interpretation of Legislation in Canada, (Scaborough, Carswell, 2000).

instances. This process is pragmatic and provides the flexibility and durability characteristic of common law rules. Civil law, on the other hand, follows the opposite route in the application of the norm: from the top down. A general rule is interpreted and, from that general rule, the law applicable to the particular instance is inferred. The civilian process requires that the legislated rules be broad and abstract enough to be adaptable through time and social changes as the legislated rules cannot be reopened as often and do not provide the same flexibility; the redeeming feature, however, is that judges may nonetheless interpret the legislation very generously so as to adapt the broad norms to social changes.37

Differences in the methodology and in the related structure and classification of rights and obligations between civil and common law are reminiscent of the differences that exist between the English garden and “le jardin français”. While they have different structures, and different internal organization, and while they represent different ways of thinking about law (or gardening), both are as autonomous, specific and beautiful. Like beautiful gardens, our different legal systems are organically bound in federal legislation as a result of our legal and constitutional history.

The interaction of federal legislation with provincial private law

As part of the harmonization initiative, two key concepts have been developed to describe the interaction between federal legislation and provincial private law: “complementarity” and “dissociation”. These terms address two very different relationships.38 Federal legislation is either completed or complemented by provincial private law (complementarity) or it is separated or dissociated from provincial private law (dissociation).

Federal legislation in Canada is rarely autonomous; it does not often stand alone, complete and independent from the influence of provincial private law. In fact federal legislation is usually made up of a combination of public and private law rules, principles and concepts that govern matters over which the federal Parliament has jurisdiction. The private law component of the federal norm usually involves rules, principles and concepts drawn from provincial private law (the law that regulates relationships between persons as opposed to public law that regulates relationships with the State). This provincial private law component usually refers to or acknowledges the private law of general application (the private jus commune or common law). For example, the Income Tax Act,39 in setting out the rules of taxation (public law), refers to numerous private law concepts such as trusts, partnerships or contracts (private law concepts) in the substantive tax rules without defining these private law concepts. This leads to inclusion of private law concepts, rules or principles into the federal norm such that federal legislation depends on these private law concepts, rules and principles for meaning and context. Federal law is not an island unto itself.40 This reference to private law rules or concepts is not problematic when they are the same or similar across the country, but when they are not, incoherence may arise.

Inasmuch as most private law in Canada is under the legislative authority of the provinces, federal legislation is therefore inextricably linked with provincial private laws and prone to connecting to varying private law standards. When federal legislation is silent or incomplete, for example, provincial private law rules and concepts will kick in with supplemental rules drawn from the private law of the province where the federal legislation is being applied. This type of interaction is referred to as complementarity in our jargon because provincial private laws complete federal laws. In a
37 Bisson, supra note 34 at p. 157. 38 See Jean Maurice Brisson and André Morel , “Federal Law and Civil Law: Complementarity, Dissociation” in

The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Collection of Studies (Ottawa: Department of Justice,1999) 217 and Louise Maguire Wellington, supra note 32; both available online at the Canadian Legislative Bijuralism Site: www.bijurilex.gc.ca. 39 R.S.C. 1985 (5th supp.) c. 1. 40 Henry L. Molot, “Clause 8 of Bill S-4 (which became the First Harmonization Act): Amending the Interpretation Act” in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, 2nd publication, booklet 6 at p. 15 in fine, available online at the Canadian Legislative Bijuralism Site: http://www.justice.gc.ca/en/dept/pub/hfl/fasc6/fascicule_6b.html.

complementarity relationship, federal legislation

depends on provincial private law for meaning and content

. The private law of each province serves as a backdrop, a legal infrastructure for federal law.41

As we have seen above, the provincial private law rules and concepts that complete federal laws are drawn from the common law in common law jurisdictions and from civil law in Quebec. Not only are they bijural, but they may also vary from a common law province to another. Federal norms must accordingly be articulated around two legal systems with potentially different streams of meaning, and leading to separate pools of private law rules and concepts, the civil law of Quebec and the common law(s) of the 12 other jurisdictions.

Differences in the application of federal legislation are better understood given this intricate interaction and architecture of the federal norm. It is also important to note, however, that not all differences in provincial private laws will lead to material differences in the impact of federal legislation. Not surprisingly, the federal legislator may take exception to, or derogate from, some or all of this provincial private law and may set out its own separate and independent private law rules or concepts for its own federal purposes where the coherent application of federal policies is at risk, and policy gaps or discrepancies are looming.42 When federal legislation is dissociated from provincial private laws it may be dissociated from one legal system or the other (partial dissociation) or from both (complete dissociation). This second type of interaction is called “dissociation” in our jargon.

Examples of both complementarity and dissociation may be found in subsection 136(1) of the Bankruptcy and Insolvency Act which on the one hand sets out an elaborate rule of priority for the whole of Canada.

136. (1) Subject to the rights of secured creditors, the proceeds realized from the property of a bankrupt shall be applied in priority of payment as follows:

[10 paragraphs follow setting out an extensive list of creditors]

This rule was found to be a separate and independent federal rule dissociated from individual provincial private law priority schemes. On the other hand, the reference in this subsection to “secured creditors” is only defined very generally in the Federal Act and has been interpreted as referring back to provincially developed private law rules and definitions of secured creditors and therefore provides complementarity with the private laws of each province.43 This example illustrates how the rules and concepts of federal legislation may be linked to and influenced by its various provincial private laws.

The metaphor of an iceberg comes to mind where the tip of the iceberg is the concepts or rules in the federal enactment and the underside is a mixed infrastructure made up of the private laws and concepts of each province that are necessary to give meaning and effect to the federal rule or concept.

Many more compelling examples of the tricky interaction that may exist between federal legislation touching upon private law rules and concepts can be found throughout the federal statute book but for the sake of simplicity we will examine 2 basic scenarios where the relationship of complementarity may pose distinct challenges to a drafter of bijural legislation. First, there is the situation where the federal provision uses a concept that has a different meaning or that is associated with different rules in civil law and in common law such as, for example, the concepts of ownership, contract, trust, servitude and gift. Secondly, the federal legislation may refer to common law rules or concepts that have no meaning in civil law such as an “estate” or “an interest in land” (fee simple, life estate, remainder or leasehold interests), “real and personal property”, or “equity and equitable or beneficial ownership”, etc. Similarly, harmonization problems arise where the legislation refers to civil law concepts that have no meaning in common law such as “dismemberments of ownership” (usufruct, emphyteusis, substitution, or right of use), “patrimony”, “movable or immovable property”, etc.
41 Brisson et Morel, supra note 38. See also Roderick A. Macdonald, “Harmonizing The Concepts and Vocabulary of Federal and Provincial Law: The Unique Situation of Quebec Civil Law” in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Collection of Studies, (Ottawa: Department of Justice, 1999), p. 29. 42 See Hogg, supra note 10. An example is the concept of common law spouse defined in federal legislation in order to avoid incoherent tax treatment and discussed infra at pp. 32 and 33. 43 Re Giffen [1998] 1 S.C.R. 91 and D.I.M.S. Construction Inc. supra note 27 at paras 11 and 12.

Moreover, complementarity between federal legislation and the provincial private laws of 13 different jurisdictions raises the thorny policy issue of uniformity (equality under and before the law) versus diversity. In a federal system that recognizes two legal traditions and 13 provincial or territorial jurisdictions, uniformity is constantly in competition with the value of legal diversity. The policy for the harmonization of federal legislation with provincial private law in Canada is influenced by our legal and constitutional framework and must pay tribute to fundamental principles like the recognition of the equality of our legal traditions and equal access to justice and to the law for the citizens of each legal tradition and of each official language. The federal legislator may promote the uniformity of private laws among common law provinces.44 In addition, the Uniform Law Conference of Canada has been steering the development of proposals in a legislative form (models and uniform statutes) for the uniformity of provincial legislation particularly in the field of commercial law.45 Other important proponents in the development of a harmonization policy for federal legislation are the federally established courts. The Supreme Court of Canada, the Federal Court of Canada and the Tax Court of Canada are all required to apply the principles of both legal systems in the interpretation of federal legislation. As we have seen earlier, the policies of the federal legislator and of the judiciary in relation to the interaction of federal legislation with civil and common law, have gradually evolved. Courts first interpreted federal laws as requiring a uniform application; later, the specificity of civil law and the equality and autonomy of each legal system was gradually recognized in applying federal legislation in Quebec; now, bijuralism is viewed as a dialogue between legal cultures.46

Convergence or divergence

In most cases the use of the civil law norm alongside the common law norm will suffice to give full effect to federal legislation and policies but where substantial differences exist between these two norms, significant conflicts arise, with possible discrepancies and gaps in federal laws or programs. How should these conflicts be resolved? The harmonization of federal legislation has spurred a debate in academic circles on how to resolve such conflicts. Should any legal system prevail over the other? Should there be convergence towards common rules, towards a common system? There is evidence in the Supreme Court of Canada decisions that the development of the common law and of the civil law is not oblivious to the solutions adopted by the other legal system in Canada and that there is a considerable degree of cross-pollination or influence, exercised by legal systems on each other in our legal environment. It would be an overreaction to consider that the harmonization of federal legislation with provincial private law aims at ultimately merging civil and common law into a unique federal norm. Whether there will or should be greater convergence between Canadian common law and Quebec civil law and whether divergences in the application of federal legislation should be eliminated by borrowing rules and concepts from one system to the other is often beyond the immediate purposes of harmonization of federal legislation. Harmonization may well be achieved by simply bridging gaps between the legal systems using rules and concepts that are specific to each legal system without necessarily borrowing rules and concepts foreign to a particular legal tradition or forging new hybrid substantive law. But harmonization may also be achieved by the creation of a new federal norm dissociated from existing provincial private law concepts or rules, so long as the new federal norm is complete, and accessible to and understandable by the users of each legal tradition.

In a recent article analyzing the jurisprudence of the Supreme Court of Canada on the question of convergence and divergence, Justice Louis Lebel of the Supreme Court of Canada states that the recognition of civil law has encouraged the emergence of a dialogue between the two legal systems. This dialogue has influenced the parallel evolution of both common law and civil law by promoting limited exchanges of solutions between legal systems and the use of comparative law arguments.
44 Constitution Act s. 94, supra note 13. 45 The Uniform Law Conference of Canada was formed in 1918-19 under the auspices of the Canadian Bar Association. more information is available on its website at: http://www.ulcc.ca/en/home/index.cfm?sec=1.46 Lebel and Le Saunier, supra note 25. See also France Allard, supra note 25 p. 202 and Ruth Sullivan, The Challenges of Interpreting Multilingual, Multijural Legislation, (2004) 29 Brooklyn Journal of International Law 985 (Sullivan, Challenge) at p. 1043.

Justice Lebel adds that convergence is very limited and focused primarily on aligning solutions or seeking equivalent legal effects to common problems (developing comparative law arguments). In the end, he suggests, the autonomy, the sources and legal methods of each system are preserved and respected rather than merged into a new mixed system or norm. He concludes that systematic and true convergence of the civil and common law is not prevalent in Supreme Court decisions and happens only in respect to limited legal issues (the law of damages is cited as an example). This analysis suggests that while there are significant cross-influences between common law and Quebec civil law, harmonization in the sense of convergence and fusion of the two systems by way of judge-made law in the Supreme Court is so limited because of the important structural and historic differences and because the decision to develop a new harmonized norm belongs primarily to the legislator. True harmonization, it is said, is the one that will result from the will of the legislator.47

Since the responsibility for substantive private law in our constitution lies with provincial legislatures, the federal legislator is not as well positioned as the provincial legislator to legislate substantively in private law matters. However, the Supreme Court of Canada, in its appellate capacity over provincial private law matters, does play a leading role in the development of substantive provincial private law policies. The federal Government’s involvement in substantive private law has been limited to a few heads of jurisdiction (divorce, marriage, bankruptcy and letters of exchange). The federal Government has also been active in supporting the work of the Uniform Law Conference of Canada and in negotiating and adopting international treaties (private international law).48 Despite its authority to do so in section 94 of the Constitution Act 1867, there has been no direct and substantive intervention in the development of provincial private law by the federal legislator. Harmonization of private law and the decision to promote convergence or divergence between our two private law systems is a complex and unpopular subject that requires the concerted efforts of legislatures, the judiciary, the profession and academia, not to mention the involvement of several interest groups, such as business associations and bankers.

The federal lawmaker’s intervention in private law making is incidental to the development of federal legislative policies. It does not much focus on convergence or divergence of legal systems; rather it aims at closing gaps and eliminating disparities that could interfere in federal legislation and programs. For example, the extension of the common law concept of “disclaimer” to include a civil law “renunciation” in subsections 248(9) and (10) of the Income Tax Act, or the definition “common law partner” in that Act and in federal pension legislation, were introduced to level the playing field (establish a common denominator among divergent concepts) for the limited purposes of federal tax and pension policies. Where federal policies and legislation are at risk of incoherent application due to divergent provincial private laws, the harmonization approach is functional and it adapts federal policy and legislation to ensure that it works in both the civil and the common law environment, without forming any value judgment. Federal harmonization is “legal system neutral”, and focuses on achieving effective and equitable federal legislative policy results. This will usually be done by using equivalent (as opposed to identical) civil and common law rules, concepts and principles. In the unlikely event that equivalent rules, concepts and principles may not be found or created, harmonization efforts might turn to the reformulation of the rule or policy, moving away from narrow legal terms and concepts to avoid incoherence. Economic rules and concepts are very flexible and potent harmonization tools. At the limit, if all else fails, borrowing a unijural rule or concept from common law or civil law and spelling it out in a complete code as a uniform private law rule for specific federal purposes is also a possibility. An important difficulty with the latter solution is that one legal community is bound to be unable to fully understand the unijural rule or concept as it would be foreign to their private law system. Such an approach, needless to say, might not achieve equal access to justice and could be at odds with the constitutional division of powers.

In summary, the motivation and methodology of harmonization of federal legislation is unbiased or neutral in terms of which legal system should provide the better mode of expression of the federal
47 Lebel and Le Saunier, supra note 25. 48 See Valerie Hughes, “Harmonization of Private Rules Between Civil and Common Law Jurisdictions: A Canadian Perspective” in Contemporary Law / Droit Contemporain (Cowansville, Éditions Yvon Blais, 1992),

p. 83 at p. 90.

norm. A strong case is made that the federal norm must adapt to each legal system, and that it must be compatible with both. Some degree of convergence of legal systems may or may not occur in the process as a by-product of harmonization.

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