An Introduction to
Canadian Private Law:
Common, Civil & Mixed
Professor David Lametti
Faculty of Law
PLAN
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•
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•
I: A Brief Introduction to Canada
II: An Introduction to Canadian Law
III: An Overview of Canadian Private Law
IV: Quebec Civil Law
• VI: Civil Law Property (skip)
• V: Common Law Property (skip)
• Postscript: McGill’s role in Quebec Civil Law (skip)
I: A Brief Introduction to Canada
• 10 provinces, 3 territories across the North
• Most recently territory: Nunavut (1999)
• 35 million people
• 6 million in Quebec
Language & Culture
• Mainly English-speaking, but:
– One officially French speaking province (Quebec), with
large anglophone, “allophone” minorities
– One officially bilingual by choice (NB)
– One officially bilingual by judicial decision (Manitoba);
Manitoba Language Ref. (SCC 1984)
– One functionally bilingual with about 1 million
francophones (Ontario)
– Pockets of French speakers in Manitoba, Sask, Alta, NS
“francophones hors Québec”
Aboriginal Peoples
• Many “peoples” (Nations, tribes, etc.)
• “First Nations” with varying practices from sedentary
agriculture to nomadic hunters and fishers
• Some came to treaties with the English settlers (no formal
treaties with the French); others never did, especially in
Quebec and British Columbia
• Indian Act: status “Indian” and “Métis”
• MANY outstanding legal issues (more later)
• Not a nice part of our history (Non è una bella storia…)
Settlement Patterns
• French came first; Jacques Cartier “discovered” in
16th Century
• Fish and furs
• Settlements in Acadie, then Quebec City and
Montreal in 17th century (Samuel de Champlain)
• Other pockets of settlement in Ontario, West
• Brought French language, Catholicism, precodal Civil law
Settlement Patterns (2)
• English came next
• Newfoundland (fish)
• Began to settle south of the border (the 13
colonies), crept northward
• And around James Bay creeping southward,
in search of furs
Settlement Patterns (3)
• Inevitable conflict; Natives took sides
• English conquered Acadie & “expelled” the
Acadians (1758), New France (1759), Treaty of
Paris (1763)
• English brought English language, governance
institutions, Protestant religions, a more
complex, mercantile trading structure, common
law
Population and Expansion
• 1867: British North America Act creates
“Confederation”, Dominion of Canada
• 4 provinces: Ontario, Quebec, New Brunswick and
Nova Scotia
• Successive provinces carved out of
territories of Rupert’s Land (Hudson Bay
Company) and North West territory
Canada 1867
Canada 1871
Canada 1905
Immigration
• English, Irish
• Turn of the century
– Germany, Ukraine, Europe (Italy)
• Post-War:
– Europe, especially Italy, Greece, Portugal
• 70s: South-east Asia, South Asia
• More recent: Africa (esp. French-speaking),
Caribbean, South America, Asia, etc.
Immigration
• Profound impact on country; changing
character
• Multicultural “mosiac”, enshrined in
Charter of Rights and Freedoms
• Strong tendency to keep mother tongues
• Strong tendency towards tolerance
• World Cup, European Cup are arguably
more fun in Montreal and Toronto!
Our neighbour to the south…
• Overwhelming impact throughout Canadian
history
• Preponderant Political, Economic, Social,
Cultural impact
• Created interesting cultural reactions…
• “a mouse in bed with and elephant”: be
careful when the elephant rolls over!
Canadian “Context”
• Pluralistic
– Culturally, socially, linguistically, politically
• Large country
• Relatively under-populated (space for
tolerance)
II: An Introduction to
Canadian Law
• Federal system
– Federal statutes and regulations
– Provincial statutes and regulations
• How these evolved?
• Some detail …
Back to History
• French brought Civil law
– Pre-codal, Coutume de Paris was the law of the
colony
– Seigneurial (feudal) system in place resembling
manorial legal system in Europe; seigneurial
courts
Arrival of the English
• Common law in Nova Scotia, Newfoundland,
New Brunswick; not feudal (land grants in fee)
• (but in Quebec, confusion!)
• Unlike Acadia, English moved quickly to
guarantee the French language, Civil law,
Roman Catholic religion in Quebec
– Treaty of Paris 1763
– Quebec Act 1774
British North America
• Influx of United Empire Loyalists from the
US after 1776
• New colony: Upper Canada split from
Lower Canada
• But even within Quebec, UELs were given
land grants in “free and common socage”
(fee) and used the common law
• Formal “reception” of common law
Civil Code of Lower Canada
•
•
•
•
1866
Based on Napoleonic Code of 1804
Classical lines of civilian tradition
Drafted in both English and French
Confederation 1867
• “Table is set” by historical context
• Partly written constitution; partly unwritten
– Unwritten: parliamentary tradition, rules and
procedures
– Written: division of powers
Canada 1867
BNA Act, 1867 (now Constitution Act,1867)
• Act of the British Parliament
• Division of Powers: S. 91: federal powers
– Peace, Order, and good Government of Canada
– Trade and Commerce
– Banking, Incorporation of Banks, and the Issue of
Paper Money
– Bankruptcy and Insolvency.
BNA Act, 1867 (2)
– Patents of Invention and Discovery, Copyrights
– Indians, and Lands reserved for the Indians
– The Criminal Law, except the Constitution of
Courts of Criminal Jurisdiction, but including
the Procedure in Criminal Matters
– Residual category
BNA Act, 1867 (3)
• S. 92: provincial powers
– The Incorporation of Companies with Provincial
Objects
– Property and Civil Rights
– Administration of Justice in the Province, including the
Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal
Jurisdiction, and including Procedure in Civil Matters in
those Courts.
Public Law
• Federal:
– Constitutional
– Criminal (from English common law, but
codified)
– Administrative
– Income Tax
– Aboriginal matters
Private Law
• Provincial
– “property and civil rights”
• But the following are federal…
– Bankruptcy
– Trade and commerce
– IP (patent and ©, but also TM)
• Therefore overlap, formal mixing, even in Quebec
• Quebec jurists know a great deal about the
common law
Private Law (2)
• Quebec: Civil law
– Civil Code of Lower Canada had been enacted
the previous year, 1866
• Other provinces: common law
– Reception was both formal and informal
Courts
• The Court System itself : s 92 – Provincially run
• BUT…
• 96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province,
except those of the Courts of Probate in Nova Scotia and
New Brunswick.
• 101. The Parliament of Canada may, notwithstanding
anything in this Act, from Time to Time provide for the
Constitution, Maintenance, and Organization of a General
Court of Appeal for Canada, and for the Establishment of
any additional Courts for the better Administration of the
Laws of Canada.
Courts (2)
• Each province (s.96):
– Superior court of general jurisdiction
• First court in all kinds of cases
– Appeal Court
– (s.92) Lower courts for minor matters
• Traffic offences, minor disputes
– Effectively a common law model, even in Quebec
Courts (3)
• Supreme Court of Canada:
– A s.101 court
– 9 judges, traditionally 3 from Quebec
– Other traditional balances: 3 from Ontario, 2 from the
West, one from the East
– 5 judges on Civil law cases (3 Quebec + 2 others)
– Some appeals as of right, the rest by way of “leave to
appeal”
Courts (4)
• Federal Court of Canada:
– Also a s.101 court
– Different divisions:
• (1) Tax (old exchequer court)
• (2) Federal Court: IP, aboriginal matters,
administrative law and tribunal review
– Federal Court of Appeal
Courts
Supreme Court
of Canada
(Fed)
Federal Court
of Appeal
(Fed)
Federal Court
Trial Division
(Fed)
Tax Court
(Fed)
Admin. Tribunals
(Fed)
Provincial
Courts of Appeal
Quebec Court
of Appeal
(Prov-Adm,
Fed-App’t)
(Prov-Adm,
Fed-App’t)
Superior/
Supreme Courts
Quebec:
Cour supérieure
(Prov-Adm,
Fed-App’t)
(Prov-Adm,
Fed-App’t)
Provincial Courts
(Prov.)
Cour de Québec
(Prov.)
Legal Professions and Education
• Common law provinces
– “Barristers & solicitors”, but unified in powers
– Specialization in some practices depending on size of
firm and location
• Education: North American model
– Second or third degree; no recommended prior degree
– Effectively a type of graduate (UK: “post-graduate”)
education
– All English, though Common law in French at Moncton
(NB), Ottawa and also McGill (de facto)
Legal Professions and Education
(2)
• Quebec
– “Avocats” and “notaires”
• Education: European model
– Usually a first degree; entry after Junior College
(CEGEP)
– Exception: McGill
• Very few CEGEP entrants (20-30/170)
• Mainly degree holders
– All education in French language except McGill, where
it is done in both (traditional English Civil law school)
Legal Professions and Education
(3)
• Judiciary
– English Common law model: 10 years after call
one is eligible
– Fiercely independent and high-quality
– Especially SCC: highly scrutinized, though not
part of formal process (yet)
– Frank Iacobucci (first Italian Canadian SCC
judge from 1991-2004)
Future of Canadian “Law”?
• Still important changes to come
• Unfinished constitution re
– Quebec: some symbolic recognition as a “distinct society” or
“people” is probable (French language & culture, Civil law); but
will this amount to legal powers?
– Aboriginal peoples: symbolic as well as real legal powers over
resource management, criminal procedure, social structure
– Western alienation: power changes as population increases
• Added to ongoing evolution of private law
III: An Overview of Canadian
Private Law
• Common Law in the 9 provinces;
“received” usually in a formal statute, as of
a certain date
• Civil law in Quebec (but with a common
law style administration; both courts and
judges…)
• What of the Civil law itself?
Common Law
• Generally an English-inspired common law
system + Equity
• Provincial
• Legal rules still mainly un-codified; found
in the cases
• Supplemented by statutes
• Pleading and factum-writing is common law
Common Law (2)
• Doctrine of Precendent
– binding and persuasive authority
– Bound within one’s own province, SCC
– Other provincial Courts of Appeal very
persuasive, other courts persuasive
Common Law (3)
• House of Lords and English Court of
Appeal decisions are still very persuasive
authority
• Other major common law jurisdictions: US,
Australia
• No civil law trials by jury
Common Law (4)
• Substantive law: more British-looking than
American
• No Restatements
• British-inspired Sale of Goods Act
• Still no strict liability (English position preEU Directive)
Common Law (5)
• Exceptions where US has been influential:
– Class actions (Quebec since 1978; 1992 in
Ontario; other provinces adopting legislation)
– Punitive damages (but still less than US)
– Secured lending: UCC- inspired (Article 9)
system in provincial PPSAs
Common Law (6)
• Law of Property
– Much like the UK, pre-1925
– Property estates (mainly fee simple, life estate)
– Leaseholds, but traditional leaseholds in the English
experience not common
• Innovation on trusts
– Use of the constructive trust perhaps more common in
Canada than UK
• Civil law: economic loss, good faith
Civil law
• CCLC: 1866
– Codification by three collaborators: two
francophones, one anglophone
– Drafted in either English or French and then
translated
– Classic lines: persons, things, obligations
– Followed the CN
– But had a section on corporate law (later
excised)
Civil law (2)
• Distinctively civilist code
– Institutions would be familiar to most civilian
jurists
– Property institutions, Obligations (Contracts
and civil responsibility)
Civil law (3)
• “La doctrine”
– Also classically Civilist
– Commentary on the Code, furnishing examples
and clarifying texts
– Primarily in French, but also English
– Also looked to French doctrinal texts, Pothier,
frères Mazeaud
– True today with Carbonnier, Terré & Simler
Civil law (4)
• “La doctrine au Québec”
– Now some very established traditional texts
– Jean-Louis Beaudouin on Obligations
– D.-C. Lamontagne on Biens (previously Marler,
an English-language text on property…)
– also scholarly articles in both languages
Civil law (5)
• Common law influence
• Procedurally
– Judges act like common law judges; do not
inquire; adversarial
– Cases: reported from the beginning
– Treated as authoritative from the beginning
– Common law way of thinking
Civil law (6)
• Common law influence
• Doctrinally too
– Doctrines under constant scrutiny
– Ex: secured lending in CCQ is similar to PPSA
and UCC article 9
– Damages: the norm in compensation in practice
• Recommended reading: Quebec Civil Law,
edited by Brierley & Macdonald
Civil law (7)
• Common law intrusions
– The trust
– Very powerful, very wealthy anglophone
community in Montreal that wanted to use the
trust, often for beneficial purposes
– (many McGill-related trust cases, including the
main building which houses the Law Faculty!)
– Trust provisions added very early on to CCLC
Civil law (8)
• The Trust
– Defined skeletally, only in terms of its powers,
etc
– No mention of patrimony
– No mention of ownership
– Courts: eventually ruled that trust corpus was
“owned” by the trustee, but said nothing about
the patrimony
– Common law: used to fill out the body of rules
relating to trusts in Quebec
Civil Code of Quebec 1991-4
• Long process of reform
• History/inspiration
– Rise of Quebec nationalism
– Some sense of pride in the Civil law as a
distinctive part of Quebecois culture (along
with language and religion, though like France
is very secular)
– Some sense that this tradition was under threat
(like language)
Civil Code of Quebec 1991-4 (2)
• Civil Code Revision Office
– Draft Civil Code (Prof. Paul-André Crépeau)
– Family law parts implemented quickly
– Others languished in the 70s and early 80s
• Finally whole code re-written, rather hastily
in the late 80s by fonctionnaires and only in
French; passed in 1991; promulgated in
1994
Civil Code of Quebec 1991-4 (3)
• French version very wordy, inelegant
• English translation poorly and hastily done
– Government argued that the French version was
authoritative
– SCC: Doré c. Verdun, Brierley, Boodman,
Kasirer et al. (1997) corrected this: both
languages official
– Government has since taken steps to improve
the English text
CCQ
• Most important element of Quebec Civil Law
• 10 books: persons, family, successions, property,
obligations, prior claims and hypothecs, evidence,
prescription, publication of rights, PrIL
• But also doctrine and cases, droit commun, older
statutes
• Also a Code of Civil Procedure
CCQ (2)
• Attempts to modernize certain doctrines
• Resolution of option-cumul debate: 1458 CCQ
– Bound by the contract (Crépeau)
– Foreseeability of damages (contract foreseeable; direct
and immediate)
• Codification of PrIL (mainly judge-made in
France; very European – Swiss PrIL, Hague
Conventions
CCQ (3)
• Attempts to modernize certain doctrines
• Products liability: copies European
Directive
• Economic loss is allowed: Spar Aerospace
• Secured lending
• Property: trust, usufruct, substitution,
divided co-ownership (condos)
• Some attempt to codify basic doctrines
Conclusions: Canadian Private
Law
• 9 common law jurisdictions, 1 mixed
• Virtually all of the influence runs one way
– Common law (SCC) has flirted with economic
loss in a number of cases, but it is not clear
– Otherwise, little Civil law influence on the
common law
– Vast majority of anglophone Canadians do not
speak French
Canadian Private Law (2)
• Most likely trend is increasing influence of
US common law and especially via statutes,
arbritration mechanisms in the FTA and
NAFTA on all jurisdictions
• Economies are increasingly integrated
• (Will Civil law in Mexico have a
moderating influence on US legal
expansion/influence?)
Quebec Civil Law (1)
• Future of Quebec Civil law? Is the mixed
jurisdiction sustainable?
• Mixed? Or just mixed up?!
Quebec Civil Law (2)
• Factors pointing to sustainability?
– Positive: Pride, Tradition and Language
– Part of how Québecois define themselves;
société distincte, un peuple, un pays
– Language keeps active ties to Continent;
lawyers and universitaires
– (unlike Louisiana, for example…)
Quebec Civil Law (3)
•
•
•
Modern Civil law in a mixed system
Quite exportable, especially because of
French & English, affinity with
common law
Strong future, VERY-well entrenched in
Quebec and in Canada
IV: Quebec Civil law
• CCQ, cases, doctrine, CCLC and previous
statutes
• French influence, common law influence,
other European influence, but not much
yet– BGB ?
PRELIMINARY PROVISION
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.
Le Code civil du Québec régit, en
harmonie avec la Charte des
droits et libertés de la personne et
les principes généraux du droit,
les personnes, les rapports entre
les personnes, ainsi que les biens.
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.
Le code est constitué d'un
ensemble de règles qui, en toutes
matières auxquelles se rapportent
la lettre, l'esprit ou l'objet de ses
dispositions, établit, en termes
exprès ou de façon implicite, le
droit commun. En ces matières, il
constitue le fondement des autres
lois qui peuvent elles-mêmes
ajouter au code ou y déroger.
CCQ: Basic Doctrines & Rights
1. Every human being
possesses juridical
personality and has
the full enjoyment of
civil rights.
1. Tout être human
possède la
personnalité juridique;
il a la pleine
jouissance des droits
civils.
CCQ: Basic Doctrines & Rights
(2)
2. Every person has a
2. Toute personne est
patrimony.
titulaire d’un patrimoine.
That patrimony may be
divided or appropriated
to a purpose, but only to
the extent provided by
law.
Celui-ci peut faire l’objet
d’une division ou d’une
affectation, mais dans la
seule mesure prévue par la
loi.
CCQ: Basic Doctrines & Rights
(3)
3. Every person is the holder
of personality rights, such
as the right to the
inviolability and integrity
of his person, and the right
to the respect of his name,
reputation and privacy.
These rights are
inalienable.
3. Toute personne est
titulaire de droits de la
personnalité, tels le droit à
la vie, à la inviolabilité et
à l’intégrité de sa
personne, au respect de
son nom, de sa réputation
et de sa vie privée.
Ces droits sont incessibles.
CCQ: Basic Doctrines & Rights
(4)
“In our view, the right to one’s image, which
has an extrapatrimonial and a patrimonial
aspect, is an element of the right to
privacy under s. 5 of the Quebec Charter.”
Aubry v. Vice-Versa, [1998] S.C.C
CCQ: Basic Doctrines & Rights
(5)
•
•
•
•
Still very much civilist in both spirit
and letter
Some significant attempts to modernize
Some recognition of context, especially
proximity to the common law
Registration systems: immovables, and
now movables (Computer and internetbased)
V: Common Law Property
• Historical Context: History of Common
Law Property, Local Conditions, Reception,
Overlap with Aboriginal rights
The Domains of Common Law
Property
• Overlapping Domains
PUBLIC & PRIVATE
The Domains of Common Law
Property
• Overlapping Domains
PUBLIC & PRIVATE
ABORIGINAL
Aboriginal Rights
• Of increasing significance, symbolic and
economic
• S. 35: (1) The existing aboriginal and treaty rights
of the aboriginal peoples of Canada are hereby
recognized and affirmed.
• (2) In this Act, "aboriginal peoples of Canada"
includes the Indian, Inuit and Métis peoples of
Canada.
Landmark Aboriginal cases
• Delgamuukw (1997): Aboriginal Title, Interpretation
• Van der Peet (1996), Sparrow (1990): Aboriginal
Rights
• Powley (2003): Métis rights case
• Impact is really quite important; forcing negotiations
between governments and aboriginal peoples??
Landmark Aboriginal cases
• Delgamuukw (1997): Aboriginal Title, Interpretation
• Van der Peet (1996), Sparrow (1990): Aboriginal
Rights
• Powley (2003): Métis rights case
• Impact is really quite important; forcing negotiations
between governments and aboriginal peoples??
Common Law Property
• Reflects HISTORY of CL and Equity
• Reflects the law of property at the date of reception
– Means that some English reforms may not be incorporated (1925,
but also previous Acts!)
– But some reception statutes restricted to “local conditions”, such
that some classic statutes (Quia Emptores 1290, Statute of Tenures
1660) might not apply
• Reflects specific Imperial Statutes
• Reflects ongoing absorption of English (and to a lesser
extent US, Australian, NZ) common law
Structure of Common Law
Property
• Real versus Personal Property
• Realty: Doctrine of estates; held of the
Crown
• Personalty: held directly, absolute
Realty or Real Property
• Corporeal (hereditaments) (possessory)
– estates
• Incorporeal (non-possessory): (iura in re
aleina) easements, profits à prendre,
restrictive covenants
Corporeal Hereditaments
Freehold Estates:
– Fee simple, free and common socage: most
absolute
– Life estates
– No fee tail
– Protected by real action
Personalty or Personal Property
• Chattels Personal
– Chose in possession (tangible)
– Chose in Action (intangibles such as shares,
debts, bonds, promissory notes and now IP)
• Chattels Real
– Leasehold Estates
– Protected by writ of ejectment
VI: Civil Law Property
• Historical Context: Domains
• Legal Context: Public Law, Civil Code of
Quebec & Emerging notion of Aboriginal
Title and Aboriginal Rights
The Domains of Quebec Civil
Law Property
• Overlapping Domains
PRIVATE (Civil Law)
The Domains of Quebec Civil
Law Property
• Overlapping Domains
PUBLIC (Common
Law)
PRIVATE
The Domains of Quebec Civil
Law Property
• Overlapping Domains
PUBLIC (Common
Law)
PRIVATE (Civil Law)
ABORIGINAL
Aboriginal Interests: Few treaties
in Quebec!!
• Aboriginal Rights: rights often tied to practices
on land
• Aboriginal Title: interests in land
• Reserve Lands: Mohawk, Cree, Huron, Innu,
Innuit
• Few historical treaties; recent ones with the
James Bay Cree over hydro-electric resources
947
Ownership
Co-ownership [1010]
Special
Modes
Superficies [1011]
Real Rights
Patrimonial
Rights
Usufruct [1120]
Dismemberments
Personal
Rights
[1119]
Emphyteusis [1195]
Servitude [1177]
Extra-patrimonial
Rights
[Aubry v. Vice-Versa]
Innominate
Real Rights?
Ownership: Basic Provision
947. Ownership is the
right to use, enjoy and
dispose of property fully
and freely, subject to the
limits and conditions for
doing so determined by
law.
947. La propriété est le
droit d’user, de jouir et de
disposer librement et
complètement d’un bien,
sous réserve des limites et
des conditions d’exercice
fixées par la loi.
Ownership may be in
various modes and
dismemberments.
Elle est susceptible de
modalités et de
démembrements.
Divided Co-ownership
• Conflicts with the Charter & with the law of
contractual obligations?
• Anselem (2004) SCC
– Posh condo units in an area of Montreal with a very
large orthodox Jewish population
– Condo rules say no structures on balcony; Anselem:
Sukkah erected for Jewish holiday Sukkot
– Contract of purchase; freedom of religion creeps in
Limited Real Rights
1119. Usufruct, use,
servitude and
emphyteusis are
dismemberments of
the right of ownership
and are real rights.
1119. L’usufruit,
l’usage, la servitude et
l’emphytéose sont des
démembrements du
droit de propriété et
constituent des droit
réels.
(Real) Servitude
1177. A servitude is a charge
imposed on an immovable, the
servient land, in favour of another
immovable, the dominant land,
belonging to a different owner.
Under the charge the owner of the
servient land is required to tolerate
certain acts of use by the owner of
the dominant land or himself
abstain from exercising certain
rights inherent in ownership.
A servitude extends to all that is
necessary for its exercise.
1177. La servitude est une charge
imposée sur un immeuble, le fonds
servant, en faveur d’un autre
immeuble, le fonds dominant, et
qui appartient à un propriétaire
différent.
Cette charge oblige le propriétaire
du fonds servant à supporter, de la
part du propriétaire du fonds
dominant, certains actes d’usage ou
à s’abstenir lui-même d’exercer
certains droits inhérents à la
propriété.
La servitude s’étend à tout ce qui
est nécessaire à son exercice.
(Real) Servitude (2)
• Restraint of trade clauses
• “Steinberg servitude”
• Standard Life: Quebec Court of Appeal
(2004)
– Not a real servitude as it does benefit the
immovable
Property: Common vs Civil
• Novel claim?
– Personality Right
– Spleen
– IP rights
• Difference in substance; method
• Attitude: Haldane vs Mignault on numerus
clausus
Numerus Clausus?
• Matamajaw case
– Quebec case, through Supreme Court all the
way to the Judicial Committee of the Privy
Council
– Sir George Stephen, Lord Mount Stephen buys
a right to fish …for $25,000 Cdn in late 19th
century
Matamajaw: Comparative Judicial
Method
• Civilians: fit in the categories and see
– Was this a species of co-ownership?
– Did contract create a usufruct, real servitude?
• Common lawyers: why not?
– Intention of parties
– Was it meant to be permanent?
947
Ownership
Co-ownership [1010]
Special
Modes
Superficies [1011]
Real Rights
Patrimonial
Rights
Usufruct [1120]
Dismemberments
Personal
Rights
[1119]
Emphyteusis [1195]
Servitude [1177]
Extra-patrimonial
Rights
[Aubry v. Vice-Versa]
Innominate
Real Rights?
Numerus Clausus ?: No
• SCC: Migneault: a usufruct, but then would end when
Lord Mount Stephen dies
• (Stephen dies) On to Privy Council …for a trial by “His
Peers”
• Viscount Haldane; actually confused concepts – thought a
usufruct as a personal right (“personal sertivude” still used
in Quebec civil law for usufruct & use, emphy.); thought
this was a “real right of servitude”
• Result: new innominate right analogous to a profit-àprendre in the common law
• Common law analysis, and way of thinking
Trusts
• Trusts have always been popular in Quebec:
wealthy anglophones expected to be able to use
them
• Added to CCLC in late 19th Century
– CCLC approach: no ruling on patrimony, Tee is
effectively the owner
• Now in CCQ
– CCQ approach: no owner, just a listing of rights,
powers, responsibilities
– Patrimony affected to a purpose
Trusts
1260. A trust results from an act
whereby a person, the settlor,
transfers property from his
patrimony to another patrimony
constituted by him which he
appropriates to a particular purpose
and which a trustee undertakes, by
his acceptance, to hold and
administer.
1260. La fiducie résulte d'un acte par
lequel une personne, le constituant,
transfère de son patrimoine à un
autre patrimoine qu'il constitue, des
biens qu'il affecte à une fin
particulière et qu'un fiduciaire
s'oblige, par le fait de son
acceptation, à détenir et à
administrer.
1261. The trust patrimony, consisting
of the property transferred in trust,
constitutes a patrimony by
appropriation, autonomous and
distinct from that of the settlor,
trustee or beneficiary and in which
none of them has any real right.
1261. Le patrimoine fiduciaire, formé
des biens transférés en fiducie,
constitue un patrimoine
d'affectation autonome et distinct
de celui du constituant, du
fiduciaire ou du bénéficiaire, sur
lequel aucun d'entre eux n'a de
droit réel.
Trusts (2)
• Other provisions describe powers without
elaborating on concept
• Unique: practical, functional, aconceptual
• However, still looks like some sort of real
right
• A Civil law Trust?
• Common law & Equity will still be used to
fill in gaps
Postscript: McGill’s role in
Quebec Civil Law
(A mixed law school in a mixed jurisdiction)
• Traditionally anglophone, Civil law faculty
• Leading scholars & jurists
• Experiment teaching common law in the 1920s failed for political
reasons
• 1960s: began teaching common law as well as Civil law
• 1980s: more integrated teaching; still two degrees
• 1999: integrated, trans-systemic programme taken by all students
leading to two degrees
• Teaching in English (75%) and French (25%) to a very diverse
population
Grazie
Domande?
david.lametti@mcgill.ca
© 2005 Educational Fair Dealing & Use Permitted
Primary Links
• Canada
– Canada.ca, canada.gc.ca
– laws.justice.gc.ca
• Quebec
– Gouv.qc.ca