Saturday, October 29, 2011

Library of Parliament Legislative Summary on Federal Law–Civil Law Harmonization Act, No. 3

The Library of Parliament recently prepared a legislative summary of Bill S-3: Federal Law–Civil Law Harmonization Act, No. 3:
"This is the third harmonization bill to be tabled by the Government in conjunction with the harmonization initiative that was begun by the Department of Justice Canada following the coming into force of the Civil Code of Québec in 1994. The two previous harmonization statutes(Federal Law – Civil Law Harmonization Act, No. 1 and Federal Law – Civil Law Harmonization Act, No. 2) came into force in 2001 and 2004 respectively."

"In 1993, in anticipation of the coming into force on 1 January 1994 of the Civil Code of Québec (CCQ), which would replace the Civil Code of Lower Canada (CCLC), the federal Department of Justice created the Civil Code Section to review federal statutes to ensure that they properly reflect both legal traditions, the civil law system in Quebec and the common law system in the rest of Canada (...)"

"Since 1867, the Parliament of Canada has enacted more than 300 statutes that are designed, in whole or in part, to regulate matters of private law. It has done so primarily under Parliament’s exclusive jurisdiction over matters that, had it not been for the division of powers in the Constitution Act, 1867, would have fallen under the provinces’ jurisdiction over property and civil rights. Examples of these matters are marriage and divorce, bankruptcy and insolvency, bills of exchange and promissory notes, interest on money, admiralty law, patents of invention, and copyright. To the same end, though less directly, Parliament has enacted statutes that primarily regulate questions of public law but also include provisions that rest on concepts or regulate relationships governed by private law."

"All these statutes do not create an independent legal system. Because these Acts derogate from or add to the jus commune of each province, they are supplemented by the relevant provincial law, which is used to interpret them and to apply them. There is, therefore, a complementary relationship between federal legislation and the jus commune of the provinces."

"In Quebec, the civil law – the jus commune governing private law – supplements federal legislation in the same way as the common law does in the other provinces. In this way, the jus commune is said to make up for 'the incompleteness of the federal legislation' and to have a 'suppletive role'."

"Harmonization aims to ensure that the existing provisions of federal laws are brought into line with the existing civil law. It also addresses the question of pre-Confederation law and the need to rewrite the French versions of federal statutes in order to reflect the common law."

It is possible to follow the progress of the bill on the LEGISinfo website.

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posted by Michel-Adrien at 3:00 pm


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