List members may be interested to know that St. Lawrence Cement Inc. v. Barrette has been followed very closely here in Quebec as it has gone up the hierarchy of courts, and the Supreme Court of Canada’s judgment is now being dissected in a manner similar to what common lawyers would do with Barker v Corus, Garland v Consumers Gas, or Say-Dee.

In constitutional terms the Civil Code is a statute, but in juridical culture it is not just a statute. It has the same relationship to other statutes as the common law does to statutes in a common law system: it is the background set of norms regulating private law (although some public law comes in to the Civil Code of Québec). See in this regard the ‘preliminary provision’ of the Code, which is effectively article zero:
“The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”
It is rather strange to see “jus commune” in an English text; in French it says “droit commun”; but one can understand why, in English, the legislator wished to avoid the phrase “common law”.

Yes, Quebec is a civil law jurisdiction, as far as its private law is concerned anyway (the nature of our court system, judicial appointments, criminal and administrative law are the same as in common law provinces); but of course civil law as an idea and a tradition is primarily private law; and this case is pure civil law, droit civil, that is to say, private law that is found in the Civil Code. (Quebec lawyers would distinguish, for example, civil law/droit civil from consumer law or company law, that is, things found in special statutes.)
 
As for English and French, the Civil Code is equally authoritative in both; although it is not out of order to note that the English text is not always of the highest quality. A project to address deficiencies is under way in the Quebec Ministry of Justice. So yes, it does sound better in French, but the English text Neil cites is not ‘just’ a translation, it is codal text. In French art. 976 says,
“Les voisins doivent accepter les inconvénients normaux du voisinage qui n'excèdent pas les limites de la tolérance qu'ils se doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.”
You can find the whole Code on line at
http://www.publicationsduquebec.gouv.qc.ca/accueil.fr.html (French)
http://www.publicationsduquebec.gouv.qc.ca/accueil.en.html (English)
under Lois et règlements/Laws and regulations.

Since the Code came into force in 1994 there has been a long-running debate about the nature and basis of art. 976. For example, does it require the proof of fault, which is required in most cases of civil liability, which are governed by the general rule in art. 1457:
“Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. ...”

The holding that art. 976 does not require fault is therefore an important one, and even made the national newspaper as a triumph for the environmental movement (the case concerned dust produced over many years by a cement plant).

Abuse of rights is generally recognized in civilian jurisdictions, although the subject of much debate (eg, is abuse of rights just a way of saying that your right has run out?). In Quebec it was recognized as an extra-codal principle under the previous Code, and is now codified (art. 7); an abuse of right is understood as a fault, generating liability under art. 1457. One reason that  St. Lawrence Cement Inc. v. Barrette is important is that it holds that art. 976 stands quite apart from this regime: you can be strictly liable under art. 976 even if you did not commit an abuse of rights or other fault; but, even if you did not violate art. 976 (eg because the inconveniences caused were not abnormal), you might be liable for fault.

There is much more of importance in the case; for example, a holding that, contrary to what I understand to be the rule in France, the mere violation of a statutory norm does not automatically count as a fault (a debate common lawyers will recognize); and a brief discussion relating to a somewhat obscure part of civil law, in all its ancient and modern manifestations, namely the concept of an obligation in propter rem, or a real obligation (contrasted with a personal obligation). This is the idea that a real (proprietary, more or less) right may be encumbered by an obligation owed to another, so that whoever holds the real right from time to time is the debtor of the obligation. A common lawyer might imagine a positive covenant running with the land  ... The Supreme Court of Canada rejected the CA’s view that this was the correct way to theorize the liability under art. 976.

I stand to be corrected on all of this by those more learned in Quebec law, but I thought the common lawyers might find a basic sketch to be interesting.

Lionel Smith