Скачать презентацию An Introduction to Canadian Private Law Common Civil Скачать презентацию An Introduction to Canadian Private Law Common Civil

b52edf9738a7bf1846bb99bdeb5d42d8.ppt

  • Количество слайдов: 109

An Introduction to Canadian Private Law: Common, Civil & Mixed Professor David Lametti Faculty An Introduction to Canadian Private Law: Common, Civil & Mixed Professor David Lametti Faculty of Law

PLAN • • I: A Brief Introduction to Canada II: An Introduction to Canadian PLAN • • 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: Mc. Gill’s role in Quebec Civil Law (skip)

I: A Brief Introduction to Canada • 10 provinces, 3 territories across the North 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), 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 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 16 th Century • Settlement Patterns • French came first; Jacques Cartier “discovered” in 16 th Century • Fish and furs • Settlements in Acadie, then Quebec City and Montreal in 17 th 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 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 & 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 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 1867

Canada 1871 Canada 1871

Canada 1905 Canada 1905

Immigration • English, Irish • Turn of the century – Germany, Ukraine, Europe (Italy) Immigration • English, Irish • Turn of the century – Germany, Ukraine, Europe (Italy) • Post-War: – Europe, especially Italy, Greece, Portugal • 70 s: 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 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, 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 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 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 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 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 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 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 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 Canada 1867

BNA Act, 1867 (now Constitution Act, 1867) • Act of the British Parliament • 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 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 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) 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 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 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… 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 • 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 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 – 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) Provincial Courts of Appeal Federal Court Trial Division Courts Supreme Court of Canada (Fed) Provincial Courts of Appeal Federal Court Trial Division (Fed) Tax Court (Fed) Admin. Tribunals (Fed) Quebec Court of Appeal (Prov-Adm, Fed-App’t) Federal Court of Appeal (Fed) (Prov-Adm, Fed-App’t) Superior/ Supreme Courts Quebec: Cour supérieure (Prov-Adm, Fed-App’t) Provincial Courts (Prov. ) Cour de Québec (Prov. )

Legal Professions and Education • Common law provinces – “Barristers & solicitors”, but unified 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 Mc. Gill (de facto)

Legal Professions and Education (2) • Quebec – “Avocats” and “notaires” • Education: European Legal Professions and Education (2) • Quebec – “Avocats” and “notaires” • Education: European model – Usually a first degree; entry after Junior College (CEGEP) – Exception: Mc. Gill • Very few CEGEP entrants (20 -30/170) • Mainly degree holders – All education in French language except Mc. Gill, where it is done in both (traditional English Civil law school)

Legal Professions and Education (3) • Judiciary – English Common law model: 10 years 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 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; 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 • 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 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 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 • Common Law (4) • Substantive law: more British-looking than American • No Restatements • British-inspired Sale of Goods Act • Still no strict liability (English position pre. EU Directive)

Common Law (5) • Exceptions where US has been influential: – Class actions (Quebec 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 – 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 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 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 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 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 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 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 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 Mc. Gill-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 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 – 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 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 70 s and early 80 s • Finally whole code re-written, rather hastily in the late 80 s by fonctionnaires and only in French; passed in 1991; promulgated in 1994

Civil Code of Quebec 1991 -4 (3) • French version very wordy, inelegant • 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, CCQ • Most important element of Quebec Civil Law • 10 books: persons, family, successions, property, obligations, prior claims and hypothecs, evidence, prescription, publication of rights, Pr. IL • 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 (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 Pr. IL (mainly judge-made in France; very European – Swiss Pr. IL, Hague Conventions

CCQ (3) • Attempts to modernize certain doctrines • Products liability: copies European Directive 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 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 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 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 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 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 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 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. 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 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. 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 1. Tout être human possesses CCQ: Basic Doctrines & Rights 1. Every human being 1. Tout être human possesses juridical possède la personnalité personality and has juridique; il a la pleine the full enjoyment of jouissance des droits civil rights. civils.

CCQ: Basic Doctrines & Rights (2) 2. Every person has a 2. Toute personne 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 3. Toute CCQ: Basic Doctrines & Rights (3) 3. Every person is the holder 3. Toute personne est of personality rights, such titulaire de droits de la as the right to the personnalité, tels le droit à inviolability and integrity la vie, à la inviolabilité et of his person, and the right à l’intégrité de sa to the respect of his name, personne, au respect de reputation and privacy. son nom, de sa réputation et de sa vie privée. Ces droits sont incessibles. These rights are inalienable.

CCQ: Basic Doctrines & Rights (4) “In our view, the right to one’s image, 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 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, 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

The Domains of Common Law Property • Overlapping Domains PUBLIC & PRIVATE ABORIGINAL The Domains of Common Law Property • Overlapping Domains PUBLIC & PRIVATE ABORIGINAL

Aboriginal Rights • Of increasing significance, symbolic and economic • S. 35: (1) The 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), 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), 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 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 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 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 – 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 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 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 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

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 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] 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 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? 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 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 (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: (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 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 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 19 th century

Matamajaw: Comparative Judicial Method • Civilians: fit in the categories and see – Was 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] 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 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 Trusts • Trusts have always been popular in Quebec: wealthy anglophones expected to be able to use them • Added to CCLC in late 19 th 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 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, 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: Mc. Gill’s role in Quebec Civil Law (A mixed law school in a Postscript: Mc. Gill’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 1920 s failed for political reasons • 1960 s: began teaching common law as well as Civil law • 1980 s: 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 Grazie Domande? david. [email protected] ca © 2005 Educational Fair Dealing & Use Permitted

Primary Links • Canada – Canada. ca, canada. gc. ca – laws. justice. gc. Primary Links • Canada – Canada. ca, canada. gc. ca – laws. justice. gc. ca • Quebec – Gouv. qc. ca