Dear Lionel;
Thanks very much for this- I was hoping someone who knew something about the Quebec legal system would be able to offer some comments. Much appreciated. I was indeed interested to note at [34]-[35] the differing positions offered on what common lawyers would call "breach of statutory duty" between Quebec and France. (An interesting parallel to the way Canadian common law in Saskatchewan Wheat Pool has parted ways with the rest of the common law world?)
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Lionel Smith <lionel.smith@mcgill.ca> 26/11/08 1:33 >>>
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 Canada¹s 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 Œpreliminary
provision¹ of the Code, which is effectively article zero:
³The 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.²
It is rather strange to see ³jus commune² in an English text; in French it
says ³droit commun²; but one can understand why, in English, the legislator
wished to avoid the phrase ³common law².
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 Œjust¹ a translation, it is codal text.
In French art. 976 says,
³Les 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.²
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:
³Every 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. ...²
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 CA¹s
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