Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for December 9, 2010
OTTAWA, Thursday, December 9, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-12, A third Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, met this day at 10:36 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: The Standing Senate Committee on Legal and Constitutional Affairs is continuing its study of Bill S-12.
[Translation]
Today our witnesses are Josée Forest-Niesing, Lawyer and President of the Fédération des associations de juristes d'expression française de common law inc., Aline Grenon, Full Professor and Director of the National Program, Common Law Section at the University of Ottawa, as an individual, and Danielle Manton, Executive Director of the Association des juristes d'expression française de l'Ontario.
Josée Forest-Niesing, Lawyer, President, Fédération des associations de juristes d'expression française de common law inc.: Madam Chair, my name is Josée Forest-Niesing, and I am the President of the Fédération des associations de juristes d'expression française de common law. I am accompanied today by Danielle Manton, the Executive Director of the Association des juristes d'expression française de la province de l'Ontario. Ms. Manton will assist me in answering some of your questions, following my brief opening remarks.
Another witness the committee has invited and with whom I have the pleasure of appearing today is Aline Grenon, Professor at the University of Ottawa. She will certainly have the opportunity to share with you her expertise, which is much greater than my own.
I would like to speak very briefly about the FAJEF and its network, as well as the AJEFO. The FAJEF represents seven French-speaking legal professional associations. They are non-profit organizations whose purpose is to promote and advocate for access to the justice system in French. By way of information, there are French-speaking legal professional associations in Manitoba, Saskatchewan, Alberta, British Columbia, Ontario, New Brunswick and Nova Scotia. The seven associations of French-speaking legal professionals together represent approximately 1,400 legal professionals, and that number has been increasing significantly over the past few years, including in Ontario where the AJEFO currently has about 650 members.
The mandate of the FAJEF and its network is to promote and protect the language rights of francophone minority groups including, but not exclusively, in the area of the administration of justice.
Furthermore, as national and provincial associations of French-speaking legal professionals working the area of common law, the FAJEF and the AJEFO also have as their mandate to support and promote the development of common law in French in Ontario and in Canada.
And it was mainly for that reason that we wanted to speak to you today. Our remarks will focus primarily on the inclusion of French-language common law in federal legislation. That being said, we firmly and unequivocally support a harmonization process that includes the four legal languages of our country.
We would like to point out that, as organizations, the FAJEF and the AJEFO are not harmonization experts. You will find that expertise in places such as law faculties, for example at the University of Ottawa, where Aline Grenon works and whose remarks will follow my own.
However, the FAJEF and Ontario consider it essential to state that they strongly support full respect for Canadian bijurilism and bilingualism within federal legislation.
As you probably already know, Canada has four legal languages, civil law French, common law French, civil law English and common law English. The FAJEF and the AJEFO believe that each of those four legal languages, including common law French, should be respected and acknowledged within all federal legislation.
Furthermore, for the past 30 years or so, significant efforts have been made in Canada to make common law more accessible to francophones living in minority communities outside Quebec. It is thanks to the multiple efforts on the part of legal professionals, universities, researchers and government that common law, despite its English origins dating back centuries, has opened up to the French language. The integration of French-language common law terms into harmonized federal legislation further acknowledges and legitimizes the role played today by French-language common law in Canada. Moreover, integrating French-language common law language into federal legislation makes that legislation more accessible to French-speaking legal professionals who work in common law provinces and to their francophone clients. For those reasons, the FAJEF and its network, including the AJEFO, wish to thank federal legislators for all of the work they have done to harmonize federal legislation. That concludes our opening comments, and we would be happy to answer your questions.
Rather than make opening remarks that would overlap entirely with what we have just stated, Ms. Manton will join us in answering any questions you might have.
Aline Grenon, Professor, University of Ottawa, as an individual: Madam Chair, I am a full professor in the French common law program at the University of Ottawa. I have been there since 1990. I have been a member of the AJEFO since 1981. Unfortunately, I did not have the opportunity to participate in the very first meetings of the AJEFO in 1980 or 1981, but I have been following the work of the AJEFO and the FAJEF very closely for some time now.
I have also long been interested in comparative law in the Canadian context, and it goes without saying given that the two are linked, I am very interested in the federal legislative harmonization process.
It is against that backdrop that I would like to make my opening remarks. In light of what I have just said, I think it is obvious that I agree with my colleagues regarding the importance of French-language common law in the federal legislative harmonization process. I will not say anymore on that because the two other witnesses here today can speak to it.
First and foremost, as an individual, I will speak to certain aspects of the harmonization process, mainly two.
In the written brief that I provided, I stated that federal legislation, in some circumstances, is based on concepts that originated in the areas of property and civil rights. Take, for example, texts that refer to contracts, trusts or the notion of compensation.
Unless federal legislators include a very specific definition in legislation, references made to such terms or concepts will be references to concepts originating in provincial law, or private provincial law.
What that means, because provincial law varies from one province to another — both in common law provinces and territories, as well as in Quebec, where civil law is used — is there can be differences in how federal legislation is applied when that legislation is based on provincial legal concepts.
This is not a recent problem but one that has existed for a very long time. When courts were called upon to interpret bijural federal legislative provisions, they were at times faced with inconsistent underlying provincial law, in other words, a solution being proposed by Quebec may not be the solution being used elsewhere in Canada.
In the past, courts tended to want — and it is perfectly understandable — to standardize federal legislation, and they did so by interpreting the legislation that was based on common law. That is why we ended up with such situations in Canada as maritime law, a system of law that falls entirely under common law.
Obviously, this made it very difficult to reconcile federal legislation and the corresponding provincial law, especially civil law. When a reform of the Civil Code was undertaken in Quebec, very significant changes were made to the terminology. It was very clear that federal legislation was very inconsistent with civil law. There were some very serious problems in that regard.
That is the backdrop, and I think you are all familiar with it, against which the federal government undertook this, in my opinion, positive initiative to harmonize federal legislation. Thus, sections 8.1 and 8.2 of the Interpretation Act were passed.
It is clear — and I noticed it when I read the questions put to Mr. Grammond a few days ago — that some senators have questions regarding this lack of uniformity. I would like to reiterate what Professor André Morel stated during the preliminary studies that led to the first harmonization law. André Morel stated the following:
. . . recognition of the fact that, subject to expressed derogation or necessary implication, the application of federal legislation is not necessarily uniform in all respects throughout Canada, and that this diversity is acceptable as a consequence of federalism itself.
So even before the first harmonization act was passed, people realized that this was possible. I recently did an in- depth study of Canada's Supreme Court legislation that was used in rulings where the court had to interpret bijural federal legislation. I have to tell you that this lack of uniformity probably will not happen very often.
And there are various reasons for that. Quite often, the solutions that are found on all sides are identical, or the discrepancies are relatively minor. There are also certain provisions in section 8.1 to the effect that it is not necessary in some circumstances to use the corresponding provincial law.
On the other hand, there may be cases in which there is a lack of uniformity in applying federal legislation, and I think that can have its advantages, very significant advantages. Allow me to explain.
First, let us take the situation that currently exists, where the concept of compensation in Quebec is not the same as that in common law provinces. There may be a situation in which the application of the Bankruptcy and Insolvency Act would have a different outcome in Quebec than it would in the rest of Canada.
In those circumstances, involving issues with national implications, Canadian legal professionals must take those differences into account. In taking those differences into account, they enter into comparative law, not in theory, but in practice. As Canadian legal professionals take these differences into account more and more often, it creates excellent opportunities to raise awareness. It is also useful because, as soon as you have to compare the solutions put forward under Quebec civil law versus common law, then you automatically have to ask the question: Which is the best solution?
This could lead to situations where Canadian legal professionals say to themselves that, under the Bankruptcy and Insolvency Act, such and such a solution would be preferable to another. And I will come back to that in a few moments. It could also lead to situations where the federal government, realizing that there is in fact a discrepancy, decides that a certain solution is not possible and that the provision has to be applied uniformly throughout Canada.
I read in your notes that the federal government can no longer allow the use of a solution that arises exclusively from common law. Therefore it will have to consider both legal systems. It will have to find a solution that is acceptable under both systems, one that is consistent under both systems.
At the same time, the federal government will attempt to improve the underlying law. So that is why I say that, when there is a lack of uniformity in the provisions, it is not a disaster, quite the opposite. It is the perfect opportunity to do some comparative law and to consider the best solutions for uniform application across Canada.
That brings us to the idea of better law. You have the documents and can ask us questions when the time comes.
The Chair: Your presentation is very helpful to us. And we will now go to questions. We will start with Senator Carignan, followed by Senators Joyal and Angus.
Senator Carignan: My question stems from this particular bill. Just listening to the witnesses singing the praises of the bill, since I have been here, I have rarely seen such tremendous unanimity, among parties, witnesses, practitioners and law professors. It is quite unique. It makes me wonder, with this third bill, whether Canada has not become a model in matters of reconciling two legal systems with two different languages.
Should we not be doing more to promote and export this expertise? I am thinking, for example, of certain African countries with a francophone tradition and some anglophone influences, as a result of change, so with notions of both English law and French law. These countries are still being developed.
Should we not be going further, both in terms of taking action domestically and exporting to other countries?
Ms. Forest-Niesing: I would be happy to answer that. I am sure my colleagues will have something to add. First, with respect to your initial comment on the unanimity of testimony or the nature of the evidence you heard, that does not surprise me at all. We have, in Canada, a legal system that is truly exceptional, enriched by bijuralism and bilingualism, two tremendous features.
I fully agree with the idea of exporting it for the benefit of other countries, which may face similar challenges because of bilingualism, bijurilism or a combination of the two. I do not know how to go about that. I certainly do not claim to be an expert in that area. I really know nothing about it and could not even identify a single country with a legal system similar to ours. I doubt there is anything quite the same. Canada's situation is unique, and that is a great asset for all Canadians.
Danielle Manton, Director General, Association des juristes d'expression française de l'Ontario: I would agree with what my colleague just said. The fact that this is the third harmonization process makes Canada and our federation experts on the subject. I think it is a very good idea, a good suggestion indeed, to transfer Canada's expertise to other countries that have not reached the same level we have.
At AJEFO, we are not experts on the subject, but we would be willing to support the government in such an endeavour.
Ms. Grenon: Obviously, with everything that has been done in Canada in the past 10 years, with the whole harmonization process, we clearly have specialists — experts who would certainly be able to go abroad and to tell other countries about their experience, both in legislative drafting and in comparing different legal models.
I think it is already happening a little bit, on a very small scale. I think there will be much more of it in the years to come. However, in my opinion, we could be doing even more here at home. For example, in an article I recently submitted for publication, I stated that the federal government could perhaps consider creating an independent body for comparative law. In our context, that could be extremely useful. That is clear. I also indicated in the article that faculties of law could do much more to raise awareness among legal professionals, not just about, say, the various legal traditions — and by that, I mean not only common law and civil law, but also the whole aboriginal tradition we have here in Canada. Great things could be done in the faculties of law to raise awareness among all legal professionals, not just to help those who opt for trans-systemic and national training, but also to make all legal professionals aware of the importance of both languages, the three systems and different traditions overall.
Whenever we reach that state of nirvana, Canada will be extremely well positioned to export and explain to other countries what we are doing here. But it is a long-term process, and we have already come a long way.
Senator Carignan: What are the other areas, more specifically, that you would identify as being the next steps in harmonization; what would you say are the biggest problems that the government should be focusing on?
Ms. Forest-Niesing: Judging by the comments of the justice minister, Mr. Nicholson, I would say that this third round of harmonization is the result of a realization that there was some urgency in the area of comparative law, particularly with respect to the Expropriation Act, and at the same time, the nine other acts being amended in this third round of harmonization, which come under the purview of Industry Canada.
So I think it is a plan that will develop not necessarily based on anyone's wishes, but rather based on the specific needs of the legal or legislative system at the time in question.
Ms. Grenon: There will be other harmonization bills because there are still other acts to be harmonized. The number given was 350, I believe. So that is clearly something that will have to be done. This is something that people now know much more about all across Canada, and they are beginning to have a better understanding of the methodology behind the interpretation of this legislation. All of this will combine to raise awareness among all legal professionals, because there is still a lot of work to be done in terms of educating all Canadian legal professionals. It would, of course, go a long way if the federal government could do a bit more in terms of that education.
That brings me back to my idea of a federal body dedicated to comparative law. I think that could be very helpful in terms of raising awareness.
Senator Carignan: Just a supplementary question.
The Chair: A very brief one, because other senators are waiting.
Senator Carignan: Are you talking about comparing the two systems within Canada or with other countries?
Ms. Grenon: First, I think we already have quite a lot of work to do just here in Canada. But once you start doing this type of work, there will inevitably be some international spill-over. We know, for example, that there are a lot of really interesting things going on in the European Union. So this will obviously have some effect, some international impact in the long or medium term.
Senator Joyal: Thank you for being here and for your presentation. Did you get the consultation paper from the Department of Justice, used in the preparation of this bill? Were you involved in the consultation process?
Ms. Grenon: Do you mean the analysis with explanatory notes?
Senator Joyal: Exactly.
Ms. Grenon: I was not involved in the process, but I did get a copy. I have not yet gone through the bill with a fine- tooth comb, but I did take a quick look at it and had a couple of questions about certain things. I had asked the clerk for a copy of the document, and I got one and read it.
Ms. Forest-Niesing: I did not.
Senator Joyal: As an organization, were you not formally consulted like the Canadian Bar Association or the Barreau du Québec?
Ms. Forest-Niesing: To my knowledge, this is the first time FAJEF has participated in or contributed to a discussion on harmonization.
Senator Joyal: So, in the future, you would be interested in being on the list of concerned organizations.
Ms. Forest-Niesing: It is always a pleasure for us to come to Ottawa.
Ms. Manton: The same goes for AJEFO.
Senator Joyal: Likewise, you were not consulted either?
Ms. Manton: No. AJEFO has not been consulted in the past, in harmonization processes. Like FAJEF, this is the first time, but we would be happy and proud to have the opportunity to participate in the future.
Senator Joyal: My second question is for Ms. Grenon. What effect has the harmonization initiative had on legal education? It is all well and good to pass laws as we are doing, but how do they make their way into the system? How are they explained? How are they taught, and how do we ensure that universities incorporate them into their research and publication work?
Ms. Grenon: There is obviously a group of professors who are very, very interested in these issues. I think you have already met a number of them.
In general, it obviously varies from one faculty of law to the next. Clearly, faculties of law in Quebec, at the University of Ottawa, in certain faculties like the University of Toronto's, and possibly some faculties of law out West, are aware of what is happening and have certain professors who are following the process closely. But I would say that it is mainly in courses on legislation where you can really have discussions in class and clearly convey to students what is going on.
In legislation courses, you definitely have to discuss the importance and value of both language versions of federal legislation and also some provincial legislation. You also have to explain why sections 8.1 and 8.2 of the Interpretation Act exist, as well as how to read and properly understand harmonized bijural legislation. It is really in those courses where these things happen.
I know that, at one point, the federal government, the Department of Justice, had prepared a document — in French and in English — that was sent out to all the faculties of law to raise awareness of these issues. I do not know what came of that, whether they surveyed the faculties to find out how helpful those documents were. I know that, in some of my courses, I never pass up an opportunity to mention these provisions.
Senator Joyal: But you cannot tell us how it is perceived, received and communicated in the other faculties elsewhere in Canada?
Ms. Grenon: No. The solution would really be a survey. As a matter of fact, that could make for a very interesting article.
Senator Joyal: I would like to go back to page 3 of the document you prepared for us. In the English version, in subheading (b), a top-down approach. That seems to me to be an important part of what we are dealing with here. You did not address the issue in your presentation. Perhaps you could summarize the argument as you see it?
[English]
A top-down approach instead of a bottom-up approach, if I can use that expression of common law.
[Translation]
Ms. Grenon: I have a hard time seeing how the bottom-up approach could work at this stage, because there is a lack of awareness. As a result, that is why in the past, we ended up with situations where the courts would take various approaches without thinking about the effect their decisions might have on, among other things, Quebec civil law. So, in the current context, it seems to me that the bottom-up process cannot really work.
However, what I do say is that once the federal government decides to take a top-down approach, after consulting — you have probably read the reports, studies and analyses that have been prepared — so once the top-down approach is taken, which is Parliament's choice to make, I think it is really from that point on that the awareness raising can begin.
I think that is where we are at now. We are talking about a systemic problem; a systemic problem cannot be fixed overnight. It is something that will take time and a heightened awareness among Canadian legal professionals to solve.
Senator Joyal: Can I come back to an explanation you gave in the last part of your presentation?
You said that when there was a divergence of solutions across Canada, we had to find a solution that was acceptable to both systems. Then you argued that when there was a lack of uniformity, it provided an opportunity to engage in comparative law and to find the best solutions for uniform law.
I am surprised by the expression ``uniform law,'' because that runs counter to the purpose of harmonization. The purpose of harmonization is not to create uniform law, but to allow both systems to evolve in a complementary fashion, while keeping their own identity and spirit intact.
Could you clarify what you meant by ``uniform law''? I took note of what you said. I do not have the transcript in front of me, but it struck me as being fundamentally contrary to everything we are trying to achieve with this initiative.
Ms. Grenon: I would refer you to page 2 of my brief. You will see there that I indicate:
Parliament itself will probably have to accept, as a general rule, that there will be no uniform result when this occurs, in order to preserve the integrity of each legal system.
That is a given. You have to be realistic, too. You have to understand that, in some circumstances, the divergence may be so great that the federal government would find it unfair to allow that divergence. That is why, on page 2, I go on to say:
On the other hand, if Parliament considers a uniform result to be desirable, or perhaps essential, it will be necessary to amend the relevant provision.
That is when I say that, in those circumstances, Parliament, when it adopts a uniform provision, will have to take into account Quebec civil law and Canadian common law, and ultimately find a solution that does not clash, that will fit in well with both systems. It certainly can be done, but it requires a lot of forethought.
It is really in those circumstances that we could wind up with uniform legal provisions after the fact. But, normally, the federal government would clearly attempt, as much as possible, to respect both systems. I cannot speak for Parliament, but it seems to me that it would attempt, as much as possible, to respect both systems.
Senator Joyal: Are there any examples of that in this bill?
Ms. Grenon: When I went through the text, I noticed changes in terminology. For example, it refers to the ``mandatary,'' There are a lot of references to personal rights, which is a term that comes from French common law. These are really terms that clarify the bijural aspects of the provision in question.
Senator Joyal: So there is no uniform solution in the bill that would violate the spirit or identity of either system?
Ms. Grenon: No. I think the day that happens, it will not be in connection with the harmonization process. It has been made clear, and the Department of Justice has said so, too: the process of harmonizing legislation is really much more technical in nature. If, at some point, Parliament wanted to adopt a uniform solution in a certain context, it would have to do so through a different process. I could give you an example.
Senator Joyal: Yes, please.
Ms. Grenon: We could discuss it later. Do we have time? My comments on the issue have been published. I could send you my published articles.
The Chair: It would be appreciated if you could send them to the clerk.
Senator Angus: Thank you very much for your presentations. My questions are for you, Ms. Grenon. I imagine that, despite your impeccable French, you are comfortable in English.
Ms. Grenon: I am a Franco-Ontarian.
Senator Angus: I am an English-speaking Quebecer, and I practised civil law for 48 years in Quebec, specializing in maritime law.
[English]
That is why I would like to pick up on your reference to maritime law. You have obviously studied this subject.
First, as a general question, it seems to me that you enthusiastically approve of the process of harmonization that is under way and that is represented by this bill.
Ms. Grenon: Absolutely.
Senator Angus: Are you familiar with the case of Resolute Shipping Ltd. v. Jasmin Const. Inc.?
Ms. Grenon: Now you are getting into the area of —
Senator Angus: I am trying to be like Senator Baker, you see, and that is a hard act to follow.
Ms. Grenon: I do not work in that area at all. I am familiar with the controversy, leading to the whole maritime law issue.
Senator Angus: When you touched on it, my eyes lit up.
Ms. Grenon: I gave you an opening.
Senator Angus: Not only that: It is something I have studied a lot. I spoke on the subject at a special sitting of the Federal Court on its twenty-fifth anniversary. It is all reported in a beautiful book that Judge Isaac put out.
In any event, Resolute Shipping Ltd. v. Jasmin Const. Inc. was a maritime law case based on a civil law contract of affreightment, according to the Civil Code of Quebec. The very learned judge, with a Quebec civil law background, in first instance found in favour of the party I represented. When we got into the Federal Court of Appeal, presided over by, as he then was, the late Mr. Justice Wilbur Jackett, I was the respondent's lawyer. The appellant was not even called upon to speak. Judge Jackett turned to your humble servant and said, ``Tell me why I should not maintain this appeal, and don't you dare speak to me about Quebec civil law.'' My stomach began to grumble; I tried to keep my cool.
In any event, it became a very terrible situation. He maintained the appeal. He did not want to hear anything about civil law, even though the first case was based on civil law by Judge Walsh.
I went to the Supreme Court of Canada, and the opposite happened:
[Translation]
``Mr. Angus, we do not need to hear your arguments. This has come to us from the Federal Court of Appeal.''
[English]
This is not inappropriate because I have given this whole story to the biographer of Judge Jackett, Richard W. Pound, and it is all laid out in his book.
My point is this: Is it working now? A great injustice was done, and by the time the Supreme Court reversed the Federal Court of Appeal, the company in question was bankrupt. It was a terrible thing. There was a lot of money involved.
What I am really getting at is whether, in your experience, jurists and people involved with the administration of justice in areas where they interface with the civil law of Quebec and the common law and especially the maritime law — and the maritime law of Canada is the common law of maritime law going back to the laws of Oleron in 1500 — have some acceptance now. Cases such as the one I mentioned underline the injustices that can occur if we do not have this harmonization and an acceptance of the Quebec civil law and the fact that it might be different.
Ms. Grenon: It is certainly happening. There have been a number of interesting cases at the Federal Court, the Court of Appeal. As I mentioned earlier, I recently examined the decisions of the Supreme Court of Canada since 2000 dealing with civil law and common law. It is happening.
One thing I noted in the process of looking at the cases is that the first three decisions of the Supreme Court of Canada really embrace section 8.1. Then there is a series of three or four cases where the Supreme Court seems to be a little reluctant. Now, in the two most recent decisions, it comes back to section 8.1.
There certainly have not been comments made like the ones you referred to earlier, but it is a long process. Even at the Supreme Court level, it takes time for the message to get across. I have analyzed all nine cases in the article, and you can tell that the judges are still struggling with certain concepts. Of course, it is a long-term process because we are dealing with judges who often do not have a background in civil law and common law. Occasionally they do not speak the two languages fluently. As a result, it is a long process, but I would say we are getting there.
Senator Angus: As I understand it, these harmonization statutes are easily applied in cases dealing with statutory law.
Ms. Grenon: Yes.
Senator Angus: You simply take, as we have seen in the appendices, statute by statute by statute and do the concordance of ``real property'' and ``immeubles'' and things like that. However, in the common law and in the great maritime law, which goes back for centuries and whose words have real meaning, it is hard to harmonize. Has any progress been made in maritime law?
Ms. Grenon: Up to now, the process of harmonization has been strictly statutory, but who is to say that at some point, particularly if there was this —
Senator Angus: You and I could write a book.
Ms. Grenon: I have a colleague who has a real interest in maritime law. She could write the book with you. Sorry, I just lost what I wanted to say.
Senator Angus: I am sorry. You were just saying that in the common law it is much harder as opposed to in statutes; is that right?
Ms. Forest-Niesing: Is harmonization possible in maritime law?
Ms. Grenon: Yes, that is right, exactly.
Perhaps, for example, if the federal government created an organisme de droit comparé, to compare the codes, that would be wonderful. Those people could sit down and look very carefully at the whole question of maritime law and try to determine what could be done in order to harmonize.
Senator Angus: It is a huge subject. When you take words like ``Charter party,'' they have a meaning and ``un contrat d'affrêtement.''
They are analogized, and yet they are totally different things, as Judge Jackett found out when he read the Supreme Court decision.
[Translation]
Senator Chaput: I actually have just one question, because one of my other questions was asked by Senator Joyal. First of all, I agree with Senator Carignan's statement that this harmonization initiative is worthy of more recognition. I agree with you, senator, because this is a major initiative. I do not think I had ever realized just how big of an initiative it was, in all the time I have been on this committee. So congratulations to those who are always working on this issue.
[English]
Senator Angus, you have showed once again how complicated the issue is and what can happen out of it.
[Translation]
I totally agree with that, and the fact remains that, in the Canadian context, it is a very good initiative, helping to bring both systems, common law, on one hand, and civil law, on the other, closer together.
Ms. Forest-Niesing, in your presentation, you said that, in the Canadian context, Canada actually has four legal languages: civil law French, common law French, civil law English and common law English. So we actually have four languages, right? And you said that those four legal languages had to be respected and recognized. So my question is this: Is that the case? Is there sufficient respect and recognition? Are we on the right track?
Ms. Forest-Niesing: With this third harmonization bill and with what I expect in the future to be the conclusion of this exercise, which I hope will not take another 10 years, although it would be quite understandable if it did, that would be the desired result.
These features of our legal system enhance it and are worth the effort and the trouble of the required legislative amendments.
Senator Chaput: Do you have anything to add, Ms. Manton?
Ms. Manton: We represent French-speaking common law professionals, and with all of the efforts that have been made over the past 30 years, including by the faculties of French-language common law that we have in Canada, yes, there is recognition. I think the efforts we have made, combined with the efforts the federal government has made in terms of the harmonization process, have indeed led to greater recognition of the four legal languages.
Senator Chaput: I have another question.
The Chair: This will be your last.
Senator Chaput: Senator Watt and I were concerned about the lack of uniformity. What might eventually happen? Ms. Grenon, you said that it creates an opportunity to engage in comparative law and to find better solutions. So I really liked your answer. Do you think that is what happens when there are difficulties?
Ms. Grenon: Yes, I think so, and I could give you the Supreme Court of Canada decision in D.I.M.S. as an example; it involves a compensation provision in the Bankruptcy and Insolvency Act. The Supreme Court of Canada dealt with the provision before it had been harmonized. At issue was compensation in Quebec under the Civil Code. Obviously, the court did not rule on compensation outside Quebec, because it was a decision that applied to Quebec. But currently, we have one situation in Quebec, with compensation under the Civil Code, and elsewhere in Canada, in the context of bankruptcy and insolvency, we have equitable set-off. This concept had already been criticized. The equitable set-off remedy under the Bankruptcy and Insolvency Act had been criticized because it gave very broad discretion to judges, allowing them to circumvent the policy underpinnings of the Bankruptcy and Insolvency Act.
Before, people did not ask a lot of questions about that, but now that there are two different solutions, one that applies in Quebec and another that applies everywhere else, you really do have to ask: Under the Bankruptcy and Insolvency Act, is there any place for equitable set-off? If not, Parliament must make that decision and perhaps state that this is not a situation where uniformity is desirable.
Even if it were to decide, at some point, that uniformity was desirable — which would surprise me in that context, but you never know — a decision would have to be made regarding what is meant by compensation under the Bankruptcy and Insolvency Act. In that case, it would be a definition.
The Chair: This has been very interesting and helpful in terms of our deliberations, and for that, we are most grateful.
[English]
Colleagues, just before we take a brief pause, we will hold a very short in-camera session, that is to say right now, so I will ask all persons who are not senators, members of senators' staff or committee staff to leave the room. After that, we shall pause for a few minutes and then resume our proceedings.
(The committee continued in camera.)
(The committee resumed in public.)
Honourable senators, as you know, the steering committee has agreed that we proceed now to clause-by-clause consideration of Bill S-12, and just before I launch the process, I will ask honourable senators if you think it would be advisable and appropriate to group clauses in our votes.
There are, in this bill, 165 clauses and two schedules. We can do individual votes on every clause, or we can group them, and I will ask if everyone is agreed to grouping them. Agreed?
Hon. Senators: Agreed.
Senator Joyal: I would agree, Madam Chair, that we do group them on the basis that none of the articles, per se, has been the object of testimony or comments. We had debate or studied the bill in its whole. None of the articles has been dissected in a way that we would need to take a formal vote, considering that some question might have arisen. That is the reason why I would suggest that we vote by grouping.
The Chair: I think that is an excellent statement of the fundamental principle upon which we are all operating.
[Translation]
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-12, A third Act to harmonize federal law with the civil law of Quebec?
Some Hon. Senators: Agreed.
[English]
The Chair: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: It is agreed.
[Translation]
Is it agreed, with leave, that the clauses by grouped according to the parts of the bill, as described in the Table of Provisions of Bill S-12?
Some Hon. Senators: Agreed.
[English]
The Chair: It is agreed.
Shall Part 1, which contains clauses 2 to 160 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Part 2, which contains clauses 161 to 166 carry? Senator Joyal?
Senator Joyal: You said 166. I have 164 in French.
The Chair: My apologies, honourable senators.
[Translation]
For your benefit, I will repeat the question. Shall part 2, which contains clauses 161 to 164, carry?
Some Hon. Senators: Agreed.
[English]
The Chair: Carried.
Shall Part 3, which contains clause 165, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall Schedule 1 carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
[Translation]
Shall schedule 2 carry?
Some Hon. Senators: Agreed.
[English]
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Shall the bill carry? All in favour? Any opposed? Abstensions? Carried.
Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
[Translation]
Senator Carignan: If I may, I have some observations. Some have made it known that they wish to continue the process under way.
The Chair: I do not believe that there is consensus on the need to make observations. If you agree, Senator Carignan, we could come back to the issue, as there are several options for that kind of thing. Bear in mind that if we decide to make observations, it will delay the process.
Senator Carignan: I have no observations then.
[English]
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: It is agreed.
Honourable senators, I have two things. Senator Carignan has some thoughts about observations, and I was going to suggest that if the committee is in agreement, if the observations are non-controversial in nature, as I suspect they are, and if the deputy chair is in agreement, the deputy chair and chair might write a letter to interested parties and mention this in the Senate when we are reporting this bill and discussing it at third reading. That would mean that we would not have to delay the presentation of the bill itself.
Would that process be agreeable to honourable senators?
Senator Joyal: I have absolutely no objection, and one other way to do it and to insist upon it is that there be a spokesperson on both sides of the chamber to concur on the observations or on the comments that are generally made, and that of course will be part of the Journals of the Senate, and that could express the views we share on all sides.
The Chair: It is not part of the committee report. This would be a separate initiative but approved by the committee.
There are ways to do this. We can discuss it right now or the steering committee can have a quick discussion with Senator Carignan and anyone else who wishes to discuss it, and I believe that is the way you would prefer to go.
[Translation]
Senator Carignan: Yes.
[English]
The Chair: There is one other rather pleasant piece of business. As you know, honourable senators, this is our last meeting before we break for Christmas and the new year. I am sure you will all want to join me in thanking all the people who do so much to make this committee work. I am always afraid of making lists because you always forget somebody on your list, but the translators, the analysts, the clerks, the stenographers, the pages — there is a cast of dozens and dozens of people. Without them, we could not do what we do, and I am sure you will join me in wishing them a wonderful holiday season.
Hon. Senators: Agreed.
Senator Joyal: It is unanimous.
The Chair: And a wonderful holiday for all of you, colleagues.
(The committee adjourned.)