Legal Research

Federal Law ? Civil Law Harmonization

By Simon Fodden

When the Quebec Civil Code came into force in 1994, replacing the Civil Code of Lower Canada, the Department of Justice began a process to review federal law with an eye to harmonizing it with the new code, essentially in areas where federal law deals with matters that in other respects fall within “property and civil rights within the province.” According to the recent legislative summary [PDF] from the Legal and Legislative Affairs Division Parliamentary Information and Research Service, the aim seems more to acknowledge and “respect” the civil law tradition than it does to correct terminology that has been the source of mischief. (If you’re unfamiliar with this harmonization effort, as I was, you may find the Background section of the summary quite interesting.)

Now a third bill in that harmonization effort, S-12, to deal with various terms found in the Business Corporations Act, the Expropriations Act, and a dozen other lesser laws has received third reading in both houses. Again, this is not a matter of making consequential changes, but rather of adding terms that users of the Code would know and understand as belonging to Quebec law. Thus, for a typical example, here is section 2 of the Expropriation Act first as it now reads and then as it will read:

“registrar” means the registrar or master of deeds or land titles or other officer with whom the title to land is registered or recorded.

?registrar? means the officer with whom the titles relating to real property and immovables are registered or recorded.

——————–

«registrateur » Le registrateur d?actes ou de titres de propriété foncière ou autre fonctionnaire auprès de qui ces titres sont enregistrés.

« registrateur » Fonctionnaire auprès de qui les titres relatifs aux immeubles ou biens réels sont enregistrés.

The “rationale” provided in the Summary is as follows:

An ?immovable? in the civil law is the equivalent to ?real property? in the common law. The problem in much of the legislation addressed by Bill S-12 is that only civil law terminology (?immeuble?) is used in the French version and only common law terminology (?real property?) is used in the English version.

The solutions proposed in the bill are to add the term ?immovables? to the English versions of legislation to reflect the civil law, while adding the term ?biens réels? to the French versions in order to reflect the common law.

At first I wondered why it wasn’t possible simply to deal with matters like this through translation, as it were; that is, to have the English version speak of “real property” and the French version speak of “immeuble” (if “propriété foncière” is inapt), or to set up an authoritative table of equivalences? Then I realized that the aim is not merely to have the same law, the same rules, apply in both arenas, as it were, but also to have each version use and acknowledge terms from the other. And because in truth it’s a matter of Quebec’s sensibilities, it comes down to the wish to have the word “immovable” appear in the English version of the Code, which, unless I have missed something here (as well I might), is very fine indeed and illustrates the tricky nature of Canada’s bijural situation.

Finally, let me be picky and wonder why the English version uses “and” where the French version has “ou.”

Full post as published by Slaw.ca on February 22, 2011 (boomark / email).