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Legal cross-fertilization at Supreme Court of Canada: Recent trends | Lawrence David

Thursday, September 19, 2019 @ 2:12 PM | By Lawrence David

Lawrence David %>
Lawrence David
The Supreme Court of Canada (SCC) gives Canadians many reasons to be proud of its important work. For one, Canadians can boast about their Supreme Court being the only bilingual and bijuridical apex judicial institution in the world. Appeals are heard in English and French and, reflecting Canada’s legal diversity, from both the common law and civil law traditions.

The SCC’s jurisdictional eclecticism further strives to balance two of the institution’s core responsibilities: (1) ensuring uniformity and consistency in the application and development of law across Canada; and (2) serving as the protector of the integrity of Quebec’s civil law system and culture. This neat and elegant division does not, however, tell the whole story: at the intersection of these two important tasks lies a fascinating dimension of judicial activity, referred to as here as “legal cross-fertilization.”

Cross-fertilization comes in different forms. The court may, for instance, harmonize the common law and civil law rules governing an area of law, whether substantive or procedural. The common law may, for instance, be made to incorporate civil law rules, or as is more often the case, the civil law will be made to adopt the rules applicable at common law. This tendency can be particularly beneficial for practitioners involved in interprovincial transactions with Quebec actors, or for Quebec actors doing business with actors in English Canada.

Several examples of legal cross-fertilization appear in the SCC’s case law released in the last five years or so. First, in Econolodge, the court extended to the civil law of Quebec the common law standards of appellate review of contractual interpretation established in Ledcor.

The interpretation of standard form contracts will therefore be subject to correctness review whether in Quebec or otherwise. In Payette v. Guay, the court harmonized the common law and civil law governing restrictive covenants.

As a result, the rules governing restrictive covenants will be more flexible or stricter depending on whether the covenant was made in a commercial or employment context, respectively.

The harmonizing tendencies of legal cross-fertilization extend to the law of insurance. In Excel Cleaning Service, the court held that the words “care, custody and control” appearing in exclusion clauses found in insurance contracts require that responsibility and control for the care of property be transferred sufficiently to effect a change of legal custody therein. The same is true in Quebec since the SCC’s decision in Econolodge. Case law from the common law provinces interpreting and applying such clauses may, therefore, be useful to Quebec insurance law practitioners.

The law of evidence and civil procedure is another fruitful area of legal cross-fertilization. Owing to its common law roots, the SCC has, for example, harmonized the rules and elements of the offence of civil contempt. In Carey v. Laiken, the court defined the offence as consisting of the intentional doing of an act prohibited by a court order.

The same is true in Quebec, as confirmed in Morasse v. Nadeau-Dubois, where a divided panel was unanimous on the common law of contempt being interpreted harmoniously under the rules contained in Quebec’s Code of Civil Procedure. Following the court’s decision in White Burgess Langille Inman, the common law duty of expert witnesses to provide fair, objective and non-partisan assistance to the court also applies uniformly in Quebec law.

But legal cross-fertilization is not a fait accompli — as the court held in the Reference re Supreme Court Act, ss. 5 and 6, the protection of Quebec’s distinct legal culture and traditions means that certain rules, doctrines, or areas of law can simply not be harmonized. Where, for example, the Quebec legislature has provided for specific rules differing from the common law (or equity), the latter cannot generally be expected to supplement the statutory rule.

Take the remedy of rectification in the federal tax context. In Fairmont Hotels, the court noted the desirability of ensuring consistency and uniformity in the application of federal tax legislation requires that the remedy be available in both Quebec and common law Canada. Uniformity was not, however, achieved at the expense of displacing the Quebec rules; rather, the court held that “both equity and the civil law are ad idem, despite each legal system arriving at th[e] same conclusion via different paths.”

Indeed, whereas equity focuses on the correction of a document, the civil law of Quebec determines rectification based on the interpretation of the contract and on the degree to which it correctly records the parties’ intentions (Jean Coutu Group (PJC) Inc. v. Canada (Attorney General)).

The SCC’s practice of legal cross-fertilization reconciles its essential duty to ensure the uniform and consistent development of the law across Canada, with its duty to preserve the province of Quebec’s distinct civil law tradition. So far, the cross-fertilization has mostly occurred from the common law to its civil law counterpart. The Quebec Court of Appeal has, however, announced its intention to begin to publish its judgments in English for the first time. Might this, over time, affect the civil law’s influence in Canada’s common law provinces? Que sera sera ...

This is part one of a two-part series.

Lawrence David is legal counsel at the Department of Justice Canada and part time professor of law, criminal law and procedure, University of Ottawa, Faculty of Law — common law section. He can be contacted at

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