Civil Law and Comparative Law Section
Legislative Services Branch
The Federal
Law-Civil Law Harmonization Act, No.
1 came into force on June 1st, 2001, as chapter 4
of the Statutes of Canada 2001. This Act is the first in a series of Acts
that will harmonize hundreds of federal statutes (and regulations). This
exercise is part of the Harmonization Program undertaken as a result of the
coming into force of the Civil Code of Québec in 1994, which
substantially changed the concepts, institutions and terminology of civil
law.
Given the
innovative character of bijural drafting, bijural terminology records have
been published on the Department of Justice Internet website, as a guide to
explain the harmonization provisions brought about by the Federal Law-Civil
Law Harmonization Act, No. 1. The harmonization provisions also take into
account common law in French. Additional terminology records will be published
as further harmonization changes are made. Harmonization changes made in tax
legislation are also included on the Internet website.
One record for all
occurrence of the same solution
These
records deal with changes made to reflect appropriate civil and common law
terminology. There is only one record per term or phrase, if the
harmonization problem raised has been solved in the same way even if it
occurs more than once in the Federal Law-Civil Law Harmonization Act, No.
1 or in tax legislation. For example, there is only one record for :
real property /immovable
immeuble/ bien réel
even though
these terms are found in several harmonized legislative provisions.Words
taken from the original provision that have been harmonized as well as the
solutions adopted in the Harmonization Act are in bold print.
Appropriate terms
for each legal system
In some
cases, common terminology is used for both common law and civil law
(acquisition/ acquisition); in other cases, different terms must be
used in order to reflect adequately the concepts of each legal system. For
example, the terms:
for the common law
: "special
damages" / dommages-intérêts spéciaux
for
the civil law: "pre-trial pecuniary loss" / perte pécuniaire
antérieure au procès.
Precedence of common
law terms in English and precedence of civil law terms in French
Generally, in
provisions that describe a legal concept by using distinct common law and
civil law terminology, the common law term appears first in the English
version and the civil law term appears first in the French version. Examples
of this are "real property and immovable" in the English version
and immeuble et bien réel in the French version.
Concepts with no
corresponding concept in the other system
In certain
cases, a concept found in one legal tradition may have no corresponding concept
in the other. For example, while jurisdiction in equity is relevant in common
law provinces, it is not recognized in private law matters in Quebec. In such
a case, the note "
n/a
" (not applicable)
/ s.o.
( sans objet) will appear for the legal system which does
not have the corresponding concept.
Rules of
interpretation: the bijural tradition in Canada
The
appropriateness of using the solutions adopted in the Federal Law-Civil
Law Harmonization Act, No. 1 in other contexts will need to be
examined on a case-by-case basis.
When
reading federal legislation, one should always keep in mind the new rules of
interpretation that have been brought to the Interpretation Act by
section 8 of the Federal Law-Civil Law Harmonization Act, No. 1.
More particularly, section 8.1 recognizes the duality of legal traditions in
Canada and the application of provincial law in a suppletive manner; section
8.2 is an interpretative tool for bijural legislative provisions.
These new sections
of the Interpretation Act are as follows:
8.1
Both the common law and the civil law are
equally authoritative and recognized sources of the law of property and civil
rights in Canada and, unless otherwise provided by law, if in interpreting an
enactment it is necessary to refer to a province's rules, principles or
concepts forming part of the law of property and civil rights, reference must
be made to the rules, principles and concepts in force in the province at the
time the enactment is being applied.
8.2
Unless otherwise provided by law, when an
enactment contains both civil law and common law terminology, or terminology
that has a different meaning in the civil law and the common law, the civil
law terminology or meaning is to be adopted in the Province of Quebec and the
common law terminology or meaning is to be adopted in the other provinces.
Amendment to one
linguistic version only
In cases where an amendment is made to only
one linguistic version, the other linguistic version is nevertheless
reproduced for ease of consultation, with reference to the amended provision
of the Federal Law-Civil Law Harmonization Act, No. 1.
List of Bijural
Terminology Records
