Today I did a contracts masterclass, which was absolutely excellent and made me happy in ways only other law nerds can understand. (Estoppel! Pre contractual representations! Insolvency! Evidentiary matters! Whee!)
Among the cases mentioned was Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 80, and as a throwaway line the person speaking mentioned he had trouble reading the judgement because it mixes the civil law of Quebec and the common law of Canada.
Which leads me to my question, how does that even work? Do Canadian Supreme Court justices have to understand both sets of laws laws? How does Quebec law handle the Canadian constitution, which is not a civil code? What about precedent? Cross border issues?
I think that maybe US law would have the same issue with Louisiana, now that I’m actually typing this out and thinking about it, so US law talking Dopers are welcome to chime in if that’s relevant.
How do general law countries hand having a civil law state?
Wait a minute, Dell Computers was an arbitration and PIL case. A fairly well known one. I so not see how there could be a common/civil law confusion here.
AK84, the citation that Gleena provided was a Supreme Court of Canada case. As such, it is good law across Canada, unless it was totally based in Quebec law, see, e.g. Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791.
I am proud to be a Canadian legal Doper, but not being conversant in Quebec civil law, I will defer to my fellow Canadian legal colleagues for the answer to Gleena’s question.
As an aside, Gleena, you might want to check the Canadian Supreme Court Reports at your law library yourself. You’ll find that they are printed with French and English side-by-side. An experienced student or lawyer should have no problems reading the judgments in English. If it is a Quebec-only issue, the judgment will indicate that (usually through cites to lower courts).
Looking forward to an answer for the OP from my Canadian colleagues!
Yes, I am aware of that. My question to Gleena was how a civil/common law confusion could arise for a reader when the main point in the case from what I recall was referral to arbitration and PIL issues, which would not really raise a civil/common law divide as other areas of law would.
Yes, Canadian Supreme Court justices have to understand both sets of laws.
The Canadian constitution is federal, so common law applies. Same for criminal law and many others. Our constitution sets out which matters are covered by federal law and which matters are covered by provincial law. If federal law, then common law; if provincial law then civil law in Quebec and common law elsewhere in Canada. When federal legislation is drafted, bijural harmonization is attempted.
In civil law, one looks to the statute and then considers how it has been interpreted, as opposed to the common law system of precedent. In Quebec, when enough civil law interpretations of a statute follow the same path, the general interpretation is considered to be settled law – jurisprudence constant, but this does not equate jurisprudence constant with stare decisis.
For cross-border issues that fall under Quebec law, Quebec’s Code’s conflict of law rules apply (e.g. choice of law, choice of jurisdiction, and recognition of foreign judgments). Note that the Code does not apply to federal laws.
He meant (I presume) that he had trouble understanding the crossover of civil/common law, not that he couldn’t read the words. It was a throwaway line, as I say. It just sparked my curiosity. I haven’t read the case, but I have read other CSC cases. On Westlaw (here) they are all in English, I’ve never seen a side by side one.
I don’t know - as I say, it was mentioned in a presentation, I haven’t read the case, and the barrister mentioned the civil/common law issue was one he encountered and I was intrigued and toddled off over here to ask, rather than do my own research.*
The masterclass was a work thing, actually, because in my day job I do contracts work, although not as a lawyer (since I’m not yet.) I used my awesome persuasion skills and convinced my boss to let me go, although it was a bit of a streeeeeetch. My boss in an accountant.
*Hey, I’m on a semester break until Monday, I refuse to do research on my own time!
Thanks Muffin! That’s really interesting and I appreciate it.
In essence then, lawyers in Quebec almost have to be both civil and common lawyers, if I understand what you’re saying? Unless they have a speciality (land law, maybe, or conveyancing or something) that’s entirely provincial in nature, they’d have to understand both types of law?
Purchaser was in Quebec. Vendor was outside of Quebec. Contract had an arbitration clause which was essentially an American model. The purchaser did not want this, so tried to have Quebec’s civil code’s conflict of laws apply to get out of the American modeled arbitration. SCC found that arbitration is territorially neutral, so Quebec’s conflict of laws legislation did not apply.
I don’t see this as being a civil/common law issue. IMHO it is a conflict of laws issue that happens involve a civil law jurisdiction, but just as easily could have involved a common law jurisdiction.
Except there is a kind of “sub-lawyer”, called notaries that deal with property transfers, wills, and perhaps other similar things. A full-blown lawyer will not be involved (usually) in such cases, so I imagine all lawyers must be conversant with both laws.
It is important to point out that, unlike the US, all criminal law is federal. Although prosecution is provincial. When after three tries to convict Henry Morgenthaler of performing an illegal abortion all resulted in acquittal (overturned on appeal–no prohibition of double jeopardy here) or hung juries, the province declined to try him again and abortions became effectively legal here. Sometime later the federal anti-abortion law was repealed and it became legal (though not always available) everywhere.
Unlike the Supreme Court of the United States, the Supreme Court of Canada is a “court of general appeal,” Constitution Act, 1867, s. 101. That means that any question of law can be appealed to the Supreme Court, even one that deals purely with the interpretation of a provincial law, such as the Civil Code of Quebec.
As well, the SCC is composed of nine justices, of whom three must come from Quebec. The quorum for the Court is five justices. That means that even if the Chief Justice sets only a panel of five justices to hear a Quebec case dealing with the Civil Code, at least two of the judges will not likely have any formal training in the civil law, coming from the common law provinces.
Different Chief Justices take different approaches to this issue. My impression is that former Chief Justice Dickson tended to appoint five-judge panels for Quebec Civil Code matters, but that the current Chief Justice’s preference is for the full Court to sit on all cases, regardless of origin. That means that Civil Code cases will be decided by a Court where the majority of the judges do not have formal training in the civil law. (it works the other way as well, of course: for common law cases from the other provinces, if the full Court sits, a third of the Court will likely not have any formal training in the common law.)
All of which is a long-winded way of saying that the judges of the Supreme Court have to be familiar with both legal systems, regardless of the limitations of their own legal training.
I’m not sure I understand your question, but I’ll take a stab at it.
The starting point is the Constitution, not the Quebec law. Quebec’s authority to enact the Civil Code of Quebec is derived from the Constitution of Canada, and must comply with the Constitution.
Section 92(13) of the Constitution Act, 1867 gives the provinces exclusive legislative authority over “Property and civil rights in the Province.” That turn of phrase dates back to an Act of the British Parliament, the Quebec Act, 1774, s. VIII, which guaranteed that the civil law of the province of Quebec would continue to be the civil law of “Canada” - i.e. the French civil law in use in New France, based on the coûtume de Paris, prior to the Conquest. (Sorry if all the different terms for the same colony are a bit confusing. )
In essence, this grant of exclusive provincial jurisdiction means that each Province has the constitutional authority to determine the laws relating to contract, property, tort, wills and estates, family law, limitations of actions, consumer protection law and so on (note that I’m using the common law terms here to assist in comprehension, not the equivalent civil law terms which are actually used in Quebec).
Since 1774, Quebec has continued to be a civil law jurisdiction, originally by virtue of the British Quebec Act, then by the passage of the Civil Code of Lower Canada in 1866 by the Province of Canada, and most recently by the Civil Code of Quebec, enacted in 1990 by the Province of Quebec.
The other provinces and territories are common law provinces, also operating under the authority granted by s. 92(13) of the Constitution Act, 1867.
For all the provinces, the laws they enact under the authority of s. 92(13) must be consistent with the Constitution of Canada: they cannot exceed the provincial powers and intrude on federal areas of jurisdiction under the federal division of powers, and they must comply with the Canadian Charter of Rights and Freedoms.
The Quebec Act, 1774 provided that the public law of Quebec would continue to be based on the public law of England. That includes the court structure, which is based on the English court system, not the French court system. That court structure continues today, with the system of superior courts being constitutionally entrenched by the judicature provisions of the Constitution Act, 1867.
As a result, the Quebec courts do not operate in the same way as the French civil courts, but more akin to the English courts. For instance, the highest French civil court is the Cour de Cassation, (the “breaking court”), which can “break” the lower court decision and then remit it to the lower court for further proceedings consistent with the Cour de Cassation’s decision. However, the Supreme Court of Canada, being a “general court of appeal” can not only set aside the lower court decision; it can go further and substitute its own ruling on the issues, much like the House of Lords in its former judicial capacity. The lower courts in Quebec are then required to follow that SCC precedent.
Again, I’m not sure what you’re asking about here, but the general rule is that the Canadian courts have applied the rules of comity from English private international law to the decisions of courts from other provinces, Quebec included. More recently, there has been a trend in the Legislatures to enact laws governing reciprocal enforcement of judgments, choice of jurisdiction, and so on.
The issue in Dell was whether the arbitration clause in Dell’s sales contracts was valid in Quebec, and therefore barred the Quebec purchaser from instead beginning a class action in the civil courts of Quebec. That in turn depended on two provisions of the Civil Code of Quebec, and therefore the validity of the arbitration clause depended on the civil law of Quebec.
The first issue was art. 3149 of the Civil Code, which regulates arbitrations. Art. 3149 provides that if there is a significant foreign element to the arbitration clause, and the arbitration clause required that a matter be submitted to a foreign authority, rather than to a Quebec authority, then the arbitration clause was a nullity and the party to the contract was entitled to bring the action in the Quebec courts.
There was also a provision in the Code which provided that in contracts of adhesion, if there was an “external clause” that could not easily be found by the consumer, the contractual provision in question was a nullity. In this case, the arbitration clause was not included in the written contract for the sale of the computer, but was accessible by an internet link in the contract. Did that qualify as an “external clause” that was not easily found, thereby potentially rendering the arbitration clause a nullity under art. 1453 of the Civil Code?
Thus, both of these issues about the validity of the arbitration clause turned on the civil law of Quebec, since arbitration clauses are contractual in nature and therefore a matter of “property and civil rights within the Province.”
By way of background, one of the big reasons for the concern was that the arbitration clause in issue stated that the arbitration would be governed by the U.S. federal Arbitration Act, and would be conducted in English. Quebec consumer protection law and the Charte de la Langue française provide significant guarantees for residents of Quebec to insist on service in French. The argument was that those statutory provisions were matters of ordre public under Quebec civil law, and therefore the purchasers were not bound by the arbitration clause. “Ordre public” is another civil law concept, similar to “public policy” in common law, but with much more normative force.
Now, these provisions of the Quebec Civil Code were triggered at least in part by Canada’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 U.N.T.S. 3 (“New York Convention”), and the UNCITRAL Model Law on International Commercial Arbitration, U.N. Doc. A/40/17 (1985), Annex I (“Model Law”). To the extent the provisions of the Civil Code were designed to implement those treaties in Quebec’s domestic law, the SCC decision is certainly relevant to the interpretation of those treaties. Nonetheless, the provisions were part of the Civil Code, and had to be interpreted under the principles of Quebec civil law.
Ultimately, the Court split 6-3 in holding that the arbitration clause was valid under the Civil Code of Quebec. The majority was written by Deschamps J. (McLachlin C.J. and Binnie, Abella, Charron and Rothstein JJ. concurring). The dissent was written by Bastarache and LeBel JJ. (Fish J. concurring). Note that Deschamps, LeBel and Fish JJ. were the three Quebec justices, so two of the three Quebec justices were in dissent on the interpretation of the civil law of Quebec. (Bastarache and Charron JJ., although of French-Canadian origin, were not from Quebec and were not trained in the civil law, but in the common law.)
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As an aside, Gleena, you might want to check the Canadian Supreme Court Reports at your law library yourself. You’ll find that they are printed with French and English side-by-side.
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See the pdf on-line report for the Dell case, which reproduces the SCR report, with the two-column bilingual format.
The SCC has recently announced that they’re no longer going to publish the SCR’s. I don’t know if that means they’ll no longer have the two-column bilingual format available. I hope they will maintain it, as I think it is useful to have the two versions on the same page, rather than have separate English and French versions of the same judgment.
It depends entirely on the type of law the lawyer is practising. Quebec is best characterised as a “mixed” jurisdiction, rather than a pure civil law jurisdiction.
If a Quebec lawyer is practising criminal law, then the lawyer is essentially practising the same type of criminal law as anywhere else in the Commonwealth or the US which has inherited the English criminal law. The Quebec Act, 1774, s. XI, as a counter-point to preserving French civil law, provided that the English criminal law would continue to be used in Quebec. That has been the case ever since. Today, the criminal law of Canada is entirely a matter of federal law, but it’s based ultimately on English criminal law.
However, if the lawyer is practising mainly in the civil area, the lawyer only needs to know civil law principles. So if the lawyer’s practice is confined to contracts, torts, property, wills and estates, and family law, the lawyer needs to know the Quebec civil law in these areas (plus the federal Divorce Act, which is based on English divorce law).
The law degrees at most of the Quebec law schools only teach civil law principles in these areas: droit d’obligations (conventions, quasi-conventions, delits, quasi-delits, and presciption); droit de biens; droit de successions; droit de la famille. They don’t teach the common law equivalents. (The exceptions are McGill, which requires all students to learn both common law and civil law, and Université d’Ottawa, which has some common law requirements for its civil law students and vice versa.) But if you went to a school like Université Laval (which I went to), you’re only taught the Civil Code; you’re not taught the equivalent common law stuff.
Notaires are not sub-lawyers. They are a different branch of the legal profession, and actually are required to have four years of legal training, instead of the three years required of avocats. The existence of the notaires (which are nothing like notaries public in the rest of Canada, the U.S. and other common law jurisdictions) is one of the strongest civil law components of the Quebec system.
They aren’t required to be conversant with “both laws” as there is only one Civil Code in Quebec, based on the civil law, and that is the basis for their work.
There is a prohibition on double jeopardy in Canada, but it is based on the English double jeopardy model of the 19th century, which allowed for Crown appeals. However, once there has been a final decision on the case (which can be at the appellate level), double jeopardy attaches and there cannot be further prosecutions for the same allegations/facts.
As well, the abortion provision was found to be unconstitutional by the Supreme Court in a subsequent Morgentaler case, this time from Ontario. The provision has never actually been repealed; it is still found as s. 287 of the Criminal Code.
Yes, thanks, indeed. As always, I’m glad NP has no other demands on his time, such that he can explain the intricacies of Canadian law at length with such wisdom and style.
I haven’t read the case, but I have read other CSC cases. On Westlaw (here) they are all in English, I’ve never seen a side by side one.