Crown Liability and Proceedings Act

Daniel Jutras*

Table of Contents

• I. PRELIMINARY COMMENTS
  • Introduction
  • 1. Normative uniformity
    • A. Textual unity and normative uniformity
    • B. Textual duality and normative uniformity
  • 2. Normative diversity
    • A. Textual unity and normative diversity
    • B. Textual duality and normative diversity
• II. Crown Liability and Proceedings Act

I. PRELIMINARY COMMENTS

Introduction

The purpose of this article is to analyse the Crown Liability and Proceedings Act from a bilingual and bijural perspective. Before proceeding with this analysis, a few preliminary comments must be made in order to highlight certain observations that flow from it.

First, the question of the normative content of a federal statute must not be confused with that of its form. Professors Morel and Brisson have very clearly shown the extent and limits of the interaction between federal law and civil law in the context of the normative content.^[1] That study makes it possible to draw a very general distinction between two different forms of interaction. In some cases, a federal statute presupposes normative diversity, because it relies on provincial law, which becomes complementary. In other cases, the federal statute distances itself from provincial law and derogates from it, so as to reach a certain normative uniformity, a Canada-wide harmonization of solutions. From this point of view, the Crown Liability and Proceedings Act is a mixture of complementarity and dissociation: at times, it refers to the law applicable in each province; at other times, it makes provision for certain uniform rules governing the civil liability of the federal Crown. The analysis of this Act from a bijural perspective is thus complicated by this first observation: a good part of the normative diversity that flows from the Act is the result of a legislative policy that consists in subordination to provincial law, which varies from one province to the next. In the interpretation of section 13 of the Act, for example, the duality of systems intended by Parliament (by reference) must be distinguished from the duality that flows from the perhaps awkward use of concepts the parameters of which are not the same in civil law as in common law (biens meubles/personal property, biens immeubles/real property).

The second question, namely the form of federal statutes that interact with provincial law, is an essential element in the choice that must be made between textual unity (that is, a single term used in each language to express the norm) and textual duality (that is, a civil law term and a common law term used in each language to express the norm). While the goal of textual unity is to find a neutral term or expression that can make the norm equally accessible to both legal traditions, that of textual duality is to speak to each person in the "language" (of civil law or common law) with which he or she is familiar.^[2]

Both these types of questions arise in the context of the Crown Liability and Proceedings Act, as they do for most federal statutes that involve some interaction with provincial law. The components of the analysis do not fit together in groups of identical pairs as might be thought (textual unity/normative uniformity; textual duality/normative diversity), as it is easy to foresee both the possibility of giving expression to a uniform legal system through four versions of the text (French, English, civil law and common law) and that of giving expression to normative diversity by using neutral terms in each language. It is this framework that I have selected to outline the observations that flow from this preliminary study of the Act.

This being said, before presentation of these observations in greater detail, it will be useful to restate the obvious: the intensity of the relationship between the text and the norm must not be exaggerated. The discussions that took place at the symposium of March 25, 1996, and during the day of work that followed are a good illustration of this. Beyond the commendable political and symbolic objective motivating the review of federal statutes, it would be incorrect to believe that the text and the norm are perfectly interrelated. It is clear, moreover, that the fact of amending legislation does not always result in a corresponding amendment to the norm. More specifically, it might be thought that the reading and interpretation of statutory provisions by jurists (judges and lawyers) also produce normative diversity and uniformity, regardless of the actual text of the enactment. First, normative diversity can arise when each person reads only his or her version while seeking solutions within his or her legal tradition, regardless of the intended uniformity of the text. Second, normative uniformity can arise when the practice of bijural interpretation in a single forum (the Federal Court, for example, or the contracting practices of the Department of Justice) leads to a harmonization beyond that provided for in the legislation and even beyond what Parliament intended.

1. Normative uniformity

The harmonization of substantive solutions within federal law interacting with provincial law can be expressed in a single text in both English and French. Drafters can also strive for harmonization by stating the same idea in each legal tradition in a text with two voices for each language.

A. Textual unity and normative uniformity

The first difficulty, from this perspective, is to render the same idea in both languages. Beyond any difficulty engendered by interaction between the two legal traditions, the Crown Liability and Proceedings Act suffers from certain weaknesses in translation. In particular, one can point to the disparity between the content of the two versions of section 13 and the terminological waltz involving the terms "private person","personne physique","particulier", "person", and "subject" (s. 3) and the terms "fait générateur" and "cause of action" (ss. 12 and 22). Moreover, the search for a single, but appro­priate, term quickly leads to problems relating to bijuralism. The Crown Liability and Proceedings Act, which was quite obviously first drafted in English and on the basis of the common law, presents many examples of these problems.

- The first type of problem involves terms that have no content in one of the two legal traditions, but which are nonetheless inserted into the Act in both languages. Here, the translation reflects only one legal tradition. This is the case, inter alia, with the terms "dommages-intérêts spéciaux/special damages" (s. 31(3)), "particulier/private person" (s. 5),"real property" and "personal property" (s. 13), and "ordonnance d'exécution" (s. 22(1)), which have no content in the civil law tradition.

- The second type of problem arises when a term exists in both legal traditions, but the meaning varies from one tradition to the other. For example, the Act contains the terms "représentant/representative" (ss. 10 and 11), "occupation" (ss. 3 and 13),"possession" (s. 3) and "detention" (s. 14), which do not have the same meaning in civil law as in common law. An interesting aspect of this problem is demonstrated by the statutory definition of "préposé/servant" (s. 2), in which the semantic content of words that are more or less equivalent is rendered heterogeneous by a perhaps unnecessary effort to obtain legislative symmetry.

- The third type of problem is that of "semi-bijural"; translation, which relies on a single term in each language but associates each language with a legal tradition. This occurs with "privilège" and "lien" (s. 14), with "organisme mandataire de la couronne" and "agency of the Crown" (s. 9), and with "bien meuble" and "personal property" or "bien immeuble" and "real property" (s. 13).

- The final type of problem relating to textual unity is the attempt to find a neutral term that can convey the same normative content in both legal traditions. Some terms are neutral in that a given concept has exactly the same content, and uses the same terminology in both the civil law and the common law. One example of this is the pair "préposé/servant" (at least under the Civil Code of Lower Canada). However, it is also possible to find terms that do not have specific roots in either legal tradition and can convey a single concept: one example of this is "fait préjudiciable", which was used in the previous version of the Act but was unfortunately translated as "tort".

B. Textual duality and normative uniformity

Considering its history and the fact that it is based on the common law, the Crown Liability and Proceedings Act contains very few cases of textual duality, that is, the use of terms connected with both legal traditions in each language. Those that are included essentially support the normative diversity of the Act.

2. Normative diversity

A. Textual unity and normative diversity

Two examples of this phenomenon come to mind. To begin with, the Act makes an express reference to provincial law, and thus to the normative diversity that results therefrom. This is the case, inter alia, with interest (s. 31), in respect of which a single text in both languages refers to provincial law. In other cases, normative diversity results from a single text, but on the basis of the presumed intention of Parliament. Thus, the concepts of "dommage/damage" (ss. 4 and 9) have very different meanings in civil law and common law even though expressed in the same terms. However, it might be thought that the reference made by Parliament presupposes that the Act is to be applied differently from one province to another. The same reasoning applies to the meaning of "duty attaching to the . . . occupation . . . of property/devoirs liés à . . . l'occupation . . . de biens" (s. 3), which varies not only between civil law and common law, but also from one common law province to another.^[3]

B. Textual duality and normative diversity

Considering the importance of the complementarity of provincial law in the Crown Liability and Proceedings Act, particular attention must be paid to the identification of terms (or doublets of terms, to be more precise) that will ensure that both versions refer to the same notions despite the diversity of the legal systems to which they are referring. Sections 3 and 13 are interesting in this regard. The definition of "délit civil/tort" (s. 2) will also be considered from this perspective. As this definition is the basis for the reference in section 3, it can be said to have two very prominent flaws.

The first of these flaws relates to the fact that the doublet is not symmetrical in the two languages. Whereas the English version includes the expression "delict and quasi-delict", the French version defines "délit civil" in civil law terms. However, this first flaw is explained in part by the second: the single term, which is defined using doublets, is itself not neutral. To avoid this problem, it would be preferable to use a single neutral term (such as "acte ou fait préjudiciable/damaging event") and to define it using a truly symmetrical doublet: "tort, délit ou quasi-délit"/"tort, delict or quasi-delict".

This then is a broad outline of the main observations that flow from an examination of the Crown Liability and Proceedings Act. A more detailed survey can be found in the discussions relating to the Act itself, which are appended to these brief preliminary comments. I have taken Gaspard Côté's enlightening comments^[4] into account in preparing this discus­sion. In order to avoid unnecessary repetition, the commentary touches in so far as possible upon aspects of the analysis of this Act that were not dealt with in detail in Côté's paper. The two papers must therefore be read together. Moreover, even though such divisions are always somewhat artificial, the comments are divided into three subjects for ease of consultation. Thus, there are comments on bilingualism (translation difficulties in French or in English), bijuralism (translation difficulties in civil law and common law) and the new civil law (difficulties flowing from the coming into force of the new Civil Code of Québec).^[5]

Bilingualism

Liability = responsabilité civile

In the civil law, the term "responsabilité civile" is translated as "civil liability" and covers both contractual civil liability and extracontractual civil liability. It is probably not necessary to amend the English title to reflect this practice. Likewise, the term "contentieux administratif" has a connotation in French that is broader than "crown proceedings", since it also covers proceedings connected with the judicial review of administrative decisions. Moreover, the word "proceedings" means actions, as opposed to "procédures applicables" [applicable procedures]. Once again, this is not an inconsequential difference. Finally, the words "État" in French and "Crown" in English do not convey the same reality.^[6] This last minor problem has already been mentioned by Professors Kasirer and Brierley in their study on the Federal Real Property Act.^[7]

Bilingualism

The French version of the definition of "navire de l'État" [Crown ship] could be interpreted as though the word "exclusive" qualified both "possession" and "propriété" [ownership]; this interpretation cannot be retained in light of the English version. The ambiguity could be significant, as it would then be necessary to attribute a meaning to the concept of "propriété exclusive".

Bijuralism

Tort = délit civil

The definition in doublet form is not symmetrical, as the English version adds to the normal meaning of "tort" by including "delict and quasi-delict", whereas the French version suggests that "délit civil" is the same thing as "délit ou quasi-délit".

Possession = possession

The word "possession" has a technical meaning in the civil law (it is the actual exercise of a real right that a person claims to hold). This is not necessarily the meaning Parliament intended to give this word in the Act. Should it instead be understood to mean the actual control of the thing?

Servant = préposés

Although the seventh paragraph of article 1054 of the Civil Code of Lower Canada provided that masters and employers were responsible for the fault of their "domestiques et ouvriers" [servants and workmen], the "préposé" concept has been known to Quebec commentators and courts for a long time. As for article 1463 of the Civil Code of Québec, it presupposes that the "préposé" concept is identical to that of "servants and agents". This new translation, which is different from that used in the Civil Code of Lower Canada ("servants and workmen"), introduces a neologism into the English civil law terminology of Quebec. The Civil Code of Lower Canada did contain the term "agent" (arts. 1735 et seq.), but it had a very different meaning. In any event, the expression "servants and agents" should probably be consi­dered the equivalent of the word "préposé" in the new Civil Code, whereas at common law the concepts of "servant" and "agent" are quite distinct.^[8] This difference between the two legal traditions leads to an asymmetrical definition of "préposé/ servant" in the Act, because the inclusion of "mandataires" in the definition of "préposés" (in the French version but not in the English version) adds to this latter concept. Does this necessarily mean that Parliament intended the Crown to be liable for a "mandataire" who is not its "préposé"? The question is somewhat more acute now due to the changes that flow from the coming into force of the Civil Code of Québec (see below). It should also be noted that the civil law equivalent in English for "mandataire" is "mandatary".

New civil law

Délit ou quasi-délit

This expression and its English equivalent [delict and quasi-delict] have disappeared from the new Civil Code. It is not absolutely necessary to adapt the Act to the new Quebec civil law terminology, as the terms "délit" and "quasi-délit" have well-known meanings in the civil law. However, in addition to the possibility that some may find that the utilization of terms no longer being used in Quebec law is inelegant, there is still the danger that some may conclude from the continued use of these terms in the Act that the reference to Quebec law is not dynamic and does not include the new Quebec law.^[9] As for deciding which term or expression should be used to replace these words if necessary, it would not necessarily be wise to follow the example of the Quebec legislature, which in section 423 of the Act respecting the implementation of the reform of the Civil Code,^[10] suggests using the words "faute au sens de la responsabilité civile extracontractuelle/fault in the context of extra-contractual civil liability". Under the former Civil Code, "délits ou quasi-délits" covered types of extracontractual civil liability based on fault as well as those that could arise in the absence of fault. Be that as it may, paragraph 3(a) has generally been interpreted as requiring proof of the servant's fault (here understood in a narrow sense analogous to the "negligence" of common law).^[11] It is important to be precise, because in common law, liability in tort can include certain types of no-fault liability. Assuming that what is desired in this respect is normative uniformity and that the Crown can be held liable for its servant's acts even in the absence of obvious fault on the servant's part, the expression "fait générateur de responsabilité civile extracontractuelle" [act attracting extracontractual civil liability] would be more appropriate.

Préposés et mandataires

The inclusion of "mandataires" [mandataries] in the definition of "préposés" raises another problem: are mandators liable for mandataries who are not their "préposés"? It is possible for a civil law mandatary to have a freedom of action that a "préposé" would not have. Under the former Civil Code, mandators were liable for the fault of their mandataries pursuant to article 1731 C.C.L.C. The ambiguity of this provision gave rise to some controversy. The new Code resolves the controversy: it draws a clear distinction between a mandatary who is equivalent to a «préposé», for whose acts the mandator is liable irrespective of fault (under article 1463 C.C.Q.), and a mandatary who is not the mandator's "préposé", for whose fault the mandator is liable only if unable to rebut the presumption of fault provided for in article 2164 C.C.Q. From the perspective of an open or dynamic reference to Quebec's jus commune, the extent to which this change affects the scope of the federal Crown's liability in Quebec will have to be determined.

Bilingualism

Private person = personne physique

The term "personne physique" is usually translated as "natural person". "Private person" does not have a clear meaning in the civil law and might lead to confusion with the concept of a "legal person established for a private interest" referred to in the Civil Code of Québec. This problem has already been pointed out by Professors Brierley and Kasirer in relation to the Federal Real Property Act.^[12] Any revision of the Act in this respect must be done very carefully in light of the importance of consistently using the same expressions in all federal statutes. The problem is especially acute here, since the translation of "private person" varies from section to section within the Act ("personne physique" in sections 3 and 4, and "particulier" in sections 5 and 21; the term "particulier" is itself translated as "persons" in sections 22 and 30, and as "subject" in sections 31, 31.1, 32 and 34 of the Act).

The Crown is liable in tort for the damages... = en matière de responsabilité civile délictuelle, l'État est assimilé...

The words "for the damages" affect the scope of the relief that can be sought from the Crown, restricting it to compensation (the payment of damages). The French version is broader, as it does not limit the relief normally available for delictual liability, including specific performance of the obligation. However, this disparity is of little consequence, since section 22 of the Act makes it impossible to obtain an order for specific performance against the Crown. Nevertheless, it should be noted that the possibility of awarding punitive damages pursuant to section 3, as was done in Peeters v. Canada (1993), 108 D.L.R. (4th) 471, would probably be more restricted in the civil law.

Bijuralism

Breach of duty = manquement aux obligations

The expression "manquement aux obligations" is a bit awkward from a civil law point of view. The courts interpreted the original wording of the 1953 Act, which read "un manquement au devoir afférent à la propriété ... ", quite narrowly, as Côté has mentioned in his analysis.^[13] The use of the singular in the French version led the Supreme Court of Canada to exempt the federal Crown from the application of a provincial statute that imposed certain specific duties that were not of general application.^[14] It has been suggested that this decision should be read as limiting the reference to the provincial jus commune, which would make it necessary to distinguish obligations that flow from the jus commune from those that flow from specific rules.^[15] Moreover, the Federal Court relied on the former wording to hold that article 1055 C.C.L.C. did not apply to the federal Crown. In Pratte J.'s view, the possibility that an owner would be responsible under article 1055 for the fault of another conflicted with the idea of a "duty" within the meaning of paragraph 3(1)(b) [now 3(b)] that is directly imposed on the owner and would attract liability if breached.^[16]

Both of these very narrow interpretations, which have the effect of rejecting the complementarity of Quebec civil law to a certain point, are possibly less acceptable today in light of the new French wording, which refers to "obligations" in the plural. This term is more consistent with the liability to reparation for injury that flows from article 1466 C.C.Q. Nonetheless, the English version still contains the term "duty", the scope of which is potentially narrower, at least in the civil law.

One possible solution to this problem would be to draft section 3 in the form of a doublet with paragraphs. In my opinion, if this solution were accepted, it should be used only for paragraph (b) and should be in as simple a form as possible. It could refer in clear language to "la responsabilité pour le préjudice causé par le fait des biens que l'État a sous sa garde ou dont elle est propriétaire, ou par la faute de l'État à l'un ou l'autre de ces titres" [liability for injury resulting from the act of property over which it has control or of which it is the owner, or from the fault of the Crown in such capacity]. Moreover, this wording appears to me to be consistent with the common law, and could probably be translated in bijural language.

Ownership, occupation, possession, or control of property = propriété, occupation, possession, garde de biens

This list was clearly first drafted from a common law perspective, and it is an exact copy of the English and provincial legislation in this area.^[17] It is therefore problematic from a civil law point of view. The concepts of "occupation" and "possession" in particular have a technical meaning in the civil law that is incongruous in the context of civil liability. However, this incongruity does not seem to have caused any problems of interpretation for the courts.^[18] Moreover, "control of property" does not necessarily convey the same concept as "garde de biens". In the civil law, the term "care" (1054(1) C.C.L.C.) or "custody" (1465 C.C.Q.) is usually used to convey this reality.

New civil law

Tort committed by a servant of the Crown = délits civils commis par ses préposés

Gaspard Côté has raised the possibility of adding the words "dans l'exécution de ses fonctions" [in the performance of the duties of his office] here to ensure the consistency of the reference with provincial law.^[19] This is a valid observation, but it is certainly not imperative that this amendment be made. Since the Crown is likened to a private person in this context, there is no risk that it will be found liable for the fault of its "servants" outside the normal duties of their offices as long as provincial law makes this condition a factor in an employer's liability. Moreover, it should be noted that contrary to the Civil Code of Lower Canada, article 1463 C.C.Q. makes the fault of the "agent or servant" an essential condition of a principal's liability. Consequently, it might be thought that a master is not liable when his or her "servant" is personally liable in the absence of fault. The term "délit civil", as defined in the Act, is broader than the concept of extra­contractual fault and would make it possible to hold the Crown liable toward third parties where its "servants" are personally liable even in the absence of fault. Finally, article 1464 C.C.Q. probably does not apply directly to the federal Crown if its effect is to extend its liability beyond the scope set out in the Act (which is open to question).

Responsabilité civile délictuelle

Reference in the former law to "responsabilité civile délictuelle" [delictual liability] was generally interpreted liberally as including quasi-delictual liability (see the title of the book by Jean-Louis Baudouin); technically, however, the expression covers only liability flowing from an intentional act. In light of the change in terminology in the Civil Code of Québec, the term "responsabilité extracontractuelle" [extracontractual liability] would probably be more appropriate. Whichever term is used, they both cover non-contractual liability in the broad sense, that is, liability based on fault and liability based on particular systems of presumption and of strict liability.

Bilingualism

Private person = personne physique

See discussion under section 3.

Damage = dommages

The word "dommages" in the plural is ambiguous in the civil law, as it also is at common law: it can refer either to an injury or to damages, that is, an amount paid to a victim as compensation for an injury. Although this ambiguity is not serious in the context of section 4, it would be preferable to remove it. The best solution would be to use the word "dommage/damage" in the singular. Use of the word "préjudice/ injury" would have certain consequences from a common law point of view.

Damage sustained by any person by reason of a motor vehicle = dommages causés par un véhicule automobile

The French version places no restrictions on the nature of the injury sustained, which may be material, moral or bodily, to use the categories found in the Civil Code of Québec. The English version may be narrower in that it can be interpreted as restricting the relief available to that for personal injury, that is, bodily injury.

New civil law

Gaspard Côté has already pointed out the problems resulting from the decision of the Exchequer Court in Lamoureux v. R., [1964] Ex.C.R. 641.^[20] The validity of this decision may once again be questioned in light of Schmitz v. R., [1974] 2 F.C. 898, Stuart v. Canada, [1989] 2 F.C. 3, and in particular R. v. Nord-Deutsche Versichersungs-Gesellschaft, [1971] S.C.R. 849. Nevertheless, Côté is right to suggest that section 4 should be amended in order to remove all ambiguity as to the open nature of the reference contained in this section.

Bilingualism

Private person = particulier

See discussion under section 3. It should be noted that "private person" has been translated here as "particulier" rather than "personne physique".

Bilingualism

Power or authority conferred on the Crown by any statute = pouvoir... qui s'exercerait au titre... d'une disposition législative

The French version uses the term "pouvoir", whereas the English version refers to a "power or authority". It should be determined whether these two concepts are identical. However, there is a more significant textual difference: the English version refers to a "power or authority conferred on the Crown by any statute", but the French version does not restrict the application of the section to the "pouvoirs" conferred on the Crown by statute.^[21] This can be compared with the wording of the final part of the French version, which refers to "faits commis dans l'exercice d'un pouvoir dévolu à l'État" ["anything done or omitted in the exercise of any power or authority exercisable by the Crown"].

Bilingualism

Death, injury, damage or loss = perte - notamment décès, blessures ou dommages

The French version does not have the same structure as the English version and is potentially broader, although it is hard to imagine a type of injury that would be covered by only one of the versions.

Bijuralism

Death, injury, damage or loss = perte - notamment décès, blessures ou dommages

The term "perte/loss" does not have a specific technical meaning in the civil law, although it is used, for example, in articles 1611 and 1612 of the Civil Code of Québec, in opposition to a loss of profit. Section 9 quite clearly refers to "dommage/ damage", and that term could replace the enumeration in both versions. It may be preferable to the "préjudice/ injury" doublet, which may have a more restrictive connotation in common law and be associated with bodily injury.

Agency = mandataire

These two expressions are commonly used together, but the proper translation of "mandataire" in the civil law is "mandatary". However, one might ask whether "mandataire/ agency" is in fact a reference to provincial private law or whether it is not instead a term with a distinctive meaning in federal law.

Bijuralism

Personal representative = représentants

This problem has already been pointed out by Gaspard Côté, and not much can be added to what he has written on the issue.^[22] In contemporary Quebec civil law, the term "représentant/ representative" refers to a person who performs a juridical act in the name and on behalf of another person. Such a person may be a tutor, a curator, or even a mandatary. In the former Civil Code, this term sometimes meant a successor (article 1030 C.C.L.C.), and it also appeared in the specific successional context of representation (articles 619 C.C.L.C. et seq.). The reality covered by the term "representative" is somewhat different at common law, as it also includes the persons responsible for administering an estate. Parliament's intention should be clarified in order to determine the meaning these words should be given. Considering the context, it would probably be advisable, as Côté suggests, to adopt a neutral term that applies to a succession or estate in both legal traditions.

New civil law

Cause of action in tort = action en responsabilité civile délictuelle

See discussion under section 3.

Bilingualism

Damage = dommages

See discussion under section 4.

Damage sustained by any person by reason of a motor vehicle = dommages causés par un véhicule automobile

See discussion under section 4.

Bijuralism

Personal representative = représentants

See discussion under section 10.

Bilingualism

The claim arose = fait générateur du litige

Both expressions contain the same ambiguity, namely how to determine the time when the claim can be said to have arisen. As the same type of problem is likely to arise in applying the provisions of the Act concerning the jurisdiction of the courts, interest and prescription, it would be advisable to use consistent language. However, "fait générateur" is translated in subsection 21(2) as "cause of action". Elsewhere in section 21, "cause d'action" is translated as "claim". Section 31 contains the term "créance/claim", and the words "faits générateurs" have become "faits générateurs de l'instance" which is not a common usage in the civil law. All these provisions should be studied together with section 32 to ensure that the terminology is consistent.

Employee of the department or agency who is in control or charge of the property = agent du ministère ou de l'organisme qui en est responsable

There are a few disparities here between the two versions, which may acquire different meanings. First, "agent" is not a common translation for "employee" in the civil law. Second, the terminology of section 10, specifically the term "organisme mandataire/agency of the crown", has not been repeated here.

Bijuralism

Administering the property = gestion du bien

Professors Kasirer et Brierley have already pointed out with respect to the Federal Real Property Act that these two expressions are not necessarily equivalent, especially in light of the new provisions of the Civil Code of Québec relating to the administration of the property of others.^[23]

New civil law

The requirement that notice in writing of the claim be served in such a short period is inconsistent with article 2930 C.C.Q., but it should be mentioned that article 2930 cannot prevail over a specific rule of a federal statute that provides otherwise.

Bilingualism

Paragraph 3(b) is not applicable in respect of any property owned by the Crown, unless... = l'alinéa 3b) ne s'applique qu'aux biens appartenant à l'État

There is a fundamental difference between the French and English versions, which has already been pointed out by Professors Dussault and Borgeat.^[24] In the French version, ownership of the property by the Crown is an essential condition of liability under paragraph 3(b). On the other hand, the English version suggests that if the property belongs to the Crown, paragraph 3(b) is not applicable unless the conditions set out in section 13 are met, but it does not restrict the application of paragraph 3(b) in other cases. This error must be corrected immediately in a direction that respects Parliament's intention. Under Quebec civil law, the effect of the French version is to exclude the Crown from liability for the autonomous act of the thing where the Crown has custody of the property (this is what "responsabilité matérielle" probably means) but is not the owner thereof. Similarly, this version excludes the owner of an animal or an immovable from liability under articles 1466 and 1467 C.C.Q. where the owner does not have custody ("responsabilité matérielle") of the property or does not occupy the immovable.

Physical control = responsabilité matérielle

The French term does not have a clear meaning in the civil law, and it is not clear that this is a proper translation of the English version even at common law.

Bijuralism

Personal property = biens meubles / Real property = biens immeubles

This is a case of a "semi-bijural" translation; its consequence is that the conditions of application of each paragraph are not the same at common law and in the civil law, since the terms do not have the same meanings in both languages.

Entered into occupation = a eu l'occupation

See discussion under section 3. It should also be noted that the verb tenses used here do not necessarily refer to the same point in time, as the English version suggests a continuity in occupation that is not clear from the French version.

Bijuralism

Detention = détention

The word "detention" has a technical meaning in the civil law: "[a]ctual control of a thing" or "[d]etention based on a title which implies acknowledgement . . . of the superior rights of another in the thing held".^[25] It is not clear that this is what this word should be understood to mean in the context of section 14.

New civil law

Lien = privilège

Since the term "privilège" [privilege] has disappeared from the new Civil Code, its replacement should be considered here, as elsewhere in federal legislation. A term consistent with the meaning of the "privilège" concept in this particular statute must be found, and given a bijural translation. It would probably not be sufficient for this purpose to replace "privilège" with "priorité" [prior claim] without amending the English version, which disregards the civil law, and without considering the intention of Parliament concerning the guaranteed rights dealt with in section 14.

Sections 16 to 19

Bilingualism

Loss or damage (sections 17 and 18) = dommage ou perte

See discussion under section 9.

New civil law

Article 1621 C.C.Q. will undoubtedly be taken into account in assessing the quantum of the damages due to a person who incurred the loss or damage in question, to a maximum of five thousand dollars for each such person as set out in section 17. Furthermore, since this section makes it possible to order the Crown to pay, as the servant's employer and without personal fault, the punitive damages awarded against the servant, it can be argued that here it goes beyond the provincial jus commune in this area.

Articles 20.1 à 20.4 :

aucun commentaire

Bilingualism

Private person = particulier

See discussion under section 3.

Cause of action = fait générateur / Claim = cause d'action

See discussion under section 12.

Bilingualism

Persons = particuliers

See discussion under section 3.

Bijuralism

Injunction or order for specific performance = injonction ou ordonnance d'exécution

This wording is based entirely on the common law, as it refers to two concepts that are distinct at common law but that overlap in the civil law. At common law, "injunction" refers to the general power of the courts to order that a thing be done, whereas "specific performance" is a term of contract law relating to the performance of specific contract obligations. In the civil law, "specific performance" includes all forms of performance in kind, including the performance in kind of an extracontractual obligation, which will in most cases be obtained by means of an injunction. The term "ordonnance d'exécution". has no specific meaning in the civil law and could be replaced by "exécution en nature" without affecting the provision's bijuralism.

Bilingualism

Agency of the Crown = organisme mandataire

See discussion under section 9.

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Bilingualism

Person = particulier

See discussion under section 3.

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Proceedings...in respect of any cause of action = Instance...dont le fait générateur

See discussion under section 12.

Liquidated claim = créance d'une somme déterminée

Although a civil law jurist would understand the expression "créance d'une somme déterminée", it is not the usual term, which is "créance liquide/liquid claim".

Bijuralism

Special damages = dommages-intérêts spéciaux

This concept is unknown to the civil law in this form. At common law, it is the opposite of "general damages", that is, those damages that are presumed to be the natural consequence of a "wrong" committed by a person. In this sense, "special damages" are damages that flow from the specific circumstances and situation of the victim, which often require specific proof and prior notice at common law. A distinction is sometimes made between special damages, which can be assessed precisely (pre-trial expenses and losses), and general damages, which are said not to be susceptible of precise assessment (loss of future earning capacity, pain and suffering, etc.).

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Cause of action = fait générateur

See discussion under section 12.

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Cause of action = fait générateur

See discussion under section 12.

Bijuralism

Prescription and the limitation of actions = Prescription

In the civil law context, the French term covers both acquisitive prescription and extinctive prescription. The English phrase has the appearance of a doublet in this respect, but it also evokes two distinct common law realities that do not necessarily have the same content as the civil law concept of prescription.

Bilingualism

The extent to which the Crown is bound by an Act of Parliament = degré d'obligation imposé à l'État par les lois fédérales

As Côté has pointed out, the French version is a rather poor rendering of Parliaments intention to preserve the scope of the Crown's immunity with respect to federal legislation.^[26] It should be redrafted.

Bilingualism

Between subject and subject = entre particuliers

See discussion under section 3.

Bilingualism

Agency of the Crown = organisme mandataire de l'État

See discussion under section 9.

Footnotes

• * Analysis prepared for the Department of Justice of Canada, March 1996.

• ^[1] A. Morel and J.M. Brisson,"Federal Law and Civil Law: Complementarity and Dissociation," paper prepared for the Department of Justice of Canada, March 1995.

• ^[2] On this subject, see the article by L. Levert, "Le bijuridisme législatif", presented in Montreal on March 25, 1996, from which I have borrowed the methodology.

• ^[3] Five provinces have statutory schemes for an occupant's liability: British Columbia, Alberta, Ontario, Manitoba and Prince Edward Island.

• ^[4] G. Côté, "Révision législative des lois fédérales eu égard aux dispositions du Code civil du Québec. Loi retenue: Loi sur la responsabilité civile de l'État et le contentieux administratif." Study prepared for the Department of Justice of Canada, March 1995.

• ^[5] On this last subject, i.e. the impact of the new law, the comments assume that the reference to Quebec law, at least for that part of Quebec law that can be described as the jus commune, is evolving or dynamic. Despite the controversy that has raged over this question, it seems that this solution is the one that has received the most support from commentators and the courts, and that the Crown is hesitant to apply it today. See in particular R. Dussault and L. Borgeat, Administrative Law: a Treatise, 2nd ed. (Toronto: Carswell, 1990), Vol. 5, at pp. 66-76. Whatever the case, should reference to the new civil law be considered closed, the comments relating to it can be disregarded.

• ^[6] The expression "État" is translated as "Crown" throughout the Act.

• ^[7] J.E.C. Brierley and N. Kasirer,"Review of the Federal Real Property Act / Loi sur les immeubles fédéraux in light of the coming into force of the Civil Code of Québec," study prepared for the working group on the revision of federal statutes, April 1995, at page 779.

• ^[8] On the meaning of the word "agent" and how it relates to the subordination concept inherent in the master-servant relationship, see H. Immarigeaon. La responsabilité extra-contractuelle de la Couronne au Canada (Montreal: Wilson & Lafleur, 1966), at pp. 91-93. It should be noted that the 1953 Act used the term «agent» in both English and French.

• ^[9] This danger was raised by A. Morel in "La révision de la législation fédérale à la lumière du Code civil du Québec," final report submitted to the Department of Justice of Canada, March 1995, at p. 22.

• ^[10] S.Q. 1992, c. 57.

• ^[11] On this question, see H. Immarigeon, supra note 8, at pp. 116-117, and G. Pépin and Y. Ouellette, Principes de contentieux administratif (Montreal: Yvon Blais, 1979), at pp. 365-370.

• ^[12] Brierley et Kasirer, supra note 7, at pp. 784-85.

• ^[13] G. Côté, supra note 4, at pp. 8-15.

• ^[14] See R. v. Breton [1967] S.C.R. 503. The English version of the provision does not support this analysis: it refers to a "breach of duty" rather than "breach of the duty".

• ^[15] See Dussault and Borgeat, supra note 5, at p. 107.

• ^[16] Domestic Converters Corp. v. Arctic Steamship Line, [1984] 1 F.C. 211. See also Commission des accidents du travail v. Conseil des ports nationaux, [1982] C.S. 22. On the broader question of the inapplicability to the Crown of liability systems based on a presumption, see Dussault and Borgeat, supra note 5, at pp. 76-82.

• ^[17] The wording used in the English version evokes forms of liability in which human intervention is less important and suggests a category unique to common law. See, for example, Duncan v. The Queen, [1966] Ex.C.R. 1080 (rule in Rylands v. Fletcher), and Mart Steel Corp. v. The Queen, [1974] 1 F.C. 45 (T.D.) (nuisance). On this subject, see in particular H. Immarigeon, supra note 8, at p. 120.

• ^[18] See, for example, on the liability of an "occupant", Air Canada v. Canada (1993), 61 F.T.R. 97, and Deslauriers-Drago v. The Queen, [1963] Ex. C.R. 289.

• ^[19] G. Côté, supra note 4, at p. 8.

• ^[20] G. Côté, supra note 4, at p. 16.

• ^[21] See Baird v. La Reine, [1984] 2 C.F. 160, in which this distinction is discussed briefly.

• ^[22] G. Côté, supra note 4, at p. 20.

• ^[23] J.E.C. Brierley and N. Kasirer, supra note 7, at p. 790.

• ^[24] R. Dussault and L. Borgeat, supra note 5, at pp. 111-113.

• ^[25] Private Law Dictionary and Bilingual Lexicons, 2nd ed., Quebec Research Centre of Private and Comparative Law (Cowansville: Yvon Blais, 1991).

• ^[26] G. Côté, supra note 4, at p. 36.