Volume 18, Number 2-3, 1977

EN:

The purpose of this paper is to examine the implication and details of the consolidation of the statutes of the Province of Quebec which is now under way. Unlike earlier consolidations, this one will be permanent and brought up to date annually, and as he approaches his subject, the author describes what must be understood by keeping up to date and who should be responsible for the task. Next, he discusses the technical aspects which ought to be considered in the process of keeping the consolidation up to date, among which are the moment and methods to inserting new texts, the numbering of sections, and the vehicle for the publication of amending legislation.

In the third part of his paper, the author describes what important changes would have to be made to the present situation, should the proposed system be adopted. These changes are both documentary (a new presentation of the Quebec official Gazette is advocated) and legislative (new duties of the Quebec Official Printer are stressed).

Finally there is established a link between the permanent consolidation and a policy for non-official consolidations. The author concludes with the expression of a point of view on the access of the people to the law.

EN:

This comment of the "Report on Private International Law" prepared by the Private International Law Committee of the Civil Code Revision Office is in answer to the Committee's request for voiced reactions to its project. The comments follow the draft's order and constitute, after a short survey, a series of remarks and suggestions for improvement.

EN:

Emphasis has recently been placed on the danger of governmental agencies moving in the direction of what may be termed "judiciallisation", as a result of the growing tendency of the government to become involved in adjudication. Meanwhile, very little attention has been given to the independence of the judiciary, the watchdog over the governmental processes.

On the one hand, professors Brun and Lemieux realize that the prerequisites of the independence of some governmental activities are just maintained and that the Courts have adapted different tests to different type functions. On the other hand, they realize that the independence of the judiciary is at the same time more and more endangered. Government designations of judges, interventions in, and associations with, the judiciary may convince many people that the latter is but a branch of the former. Moreover, the Courts themselves generally show too dormant an attitude in this area.

EN:

When called upon, to ascertain the ambit of the application of section 96 of the B.N.A. Act (1867), our courts have devised a method of reasoning by historical analogy between different types of jurisdictions. In Tomko v. Labour Relations Board (N.S.) and al., the Supreme Court was given the opportunity to make a clear synthesis of the principles underlying such an approach. Although the Court's decision makes no innovations in this respect, it establishes clear guidelines to be followed by the judiciary when it shall next be called upon to pronounce itself on the constitutionnality of the conferral of jurisdiction upon inferior tribunals or provincial administrative organisms in the light of section 96.

The Supreme Court is now hearing the appeal in P.g. du Québec et Tribunal des Transports v. Farrah. In that case, the Court of Appeal held that when the Transport Tribunal hears an appeal from the Transport Commission on questions of law only, it exercises a jurisdiction which is analogous to the superintending power of the Superior Court. The Court of appeal therefore considered that the judges of the Transport Tribunal fall under the application of section 96. If the Supreme Court were to confirm the appeal tribunal's decisions it most probably would also have to examin the constitutionnality of certain "privative" clauses; if it were to refuse to adopt the Court of appeal's view, it would render possible the establishment of an administrative appeal court whose judges would be nominated by the Province.

FR:

La possibilité de lier une compagnie qui n'existe pas par un contrat conclu en son nom avant sa date d'incorporation reste un des problèmes les plus difficiles du droit corporatif contemporain. Au Québec, la question des contrats pré-incorporatifs est en partie traitée à l'article 29 de la Loi des compagnies S.R. 1964 c. 271, qui permet la création d'un fidéicommis en vue d'une constitution en corporation.

L'origine de l'article 29 reste énigmatique : l'historique de cette disposition nous renvoie à l'étude du phénomène des compagnies non-incorporées au Québec et d'une manière plus générale, à l'examen du Bubble Act, première loi des temps modernes à réglementer, pour la protection de l'épargne, les activités des compagnies à but lucratif.

L'introduction historique permet de placer l'article 29 dans sa véritable perspective et nous amène à considérer le fidéicommis pré-incorporatif dans ses applications particulières. Aussi, la jurisprudence et la doctrine ont établi des règles précises concernant l'interprétation, la création et l'effet de ce fidéicommis statutaire et ces divers points sont examinés en détail. Enfin, la discussion aborde le sujet des devoirs des promoteurs à l'égard de la future compagnie et des tiers investisseurs.

Le fidéicommis pré-incorporatif permet donc d'observer, dans un panorama historique qui couvre près de trois siècles, le souci constant des législateurs et des tribunaux de protéger l'investissement contre la cupidité des spéculateurs et fait ressortir, dans les législations contemporaines en la matière, la pérennité des problèmes soulevés et des solutions retenues.

EN:

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review.

If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

EN:

The revocation of an agent frequently raises the question of the legal basis for the right to indemnity by agent so revoked. The existence of such a right as well as the determination of the amount of the indemnity depend on the nature of the relationship between the agent and his client. In the case of an independent agent, this relationship is of a special nature. His function differs from that of a servant and that of an independent trader, who are both currently called agents. The indépendant agent deals with third parties for a client, but does not himself supply the goods and services in which he trades.

The indépendant agent, to whom is recognized the status of commercial intermediary, has a function which is characterized by his own obligational contents. He brings to the execution of his work the duties of a professional. He is subject to an obligation of diligence and, because of his professional status, incurs a certain liability towards the third party he deals with. The qualification of mandate, often given to his contract, cannot take into account the extensive obligations imposed on the agent, particularly the fact that he makes a profession of his agency and that he has a special interest in the success of the affair he négociâtes. The reference to rules of a civil nature in matters that relate to business creates some confusion. The nature of the relationship between the agent and his client is challenged by the notion of common interest which grants to the agent a right to keep up the contract and maintain goodwill.

The proposition of the Civil Code Revision Office for the revision of the legal categories has the advantage of giving new definitions to contracts which are characterized by the autonomy of the obligee in the execution. In the case of the independent agent, it will favour a qualification more adequate of the relationship between him and his client. The revocation of the agent would then be treated like the revocation in other contracts in which work is done in the interest of the other party.

EN:

In the province of Quebec, as elsewhere in Canada, the legislator, authors and judges frequently use terms in a general sense which is always taken for granted. But when the exact meaning of such terms is sought, no useful definition can be found. « Public », « public body », « public board » and « body politic » are typical examples of such terms. The purpose of this paper is to search for the legal signification of these four terms, more particularly in the United States and in Great Britain where they have been analyzed.

EN:

With respect to the public domain, the British North America Act of 1867 established a division of authority which is relatively simple in principle: residuary interest in property belongs to the Provinces while the Federal authority has no more than the power of exception. From this principle which is derived principally from article 109 of the 1867 Act, we can say that the Provinces have authority to legislate on questions affecting natural resources.

However, the Canadian Parliament can also legislate on questions affecting natural resources. This is derived from either express authority granted it or from implied authority. In effect, the majority of the authority which permits the Canadian Parliament to legislate in matters affecting natural resources is derived either directly or indirectly from the application of its trenching power.

The introductory clause of article 91 of the 1867 Act is an important source of the Federal authority over natural resources. Through the application of the national dimension theory, Ottawa has assumed control over atomic energy, off-store mineral resources, water management, and the expropriation of provincial lands. Moreover, through the application of emergency powers, Parliament could eventually legislate on a considerable number of subjects related to natural resources.

Also, a number of the Federal Government's enumerated powers permit the control authority to legislate on questions of natural resources. The principle examples of this are its authority over the public debt and property, commerce, taxation, navigation, fisheries, Indians, the authority granted it by article 92(10c), and article 108 of the 1867 Act.

One must thus conclude that by judicial interpretation, the Federal government has gained concurrent authority over natural resources through the application of the principle of Federal preponderance in case of conflict.

EN:

N.D.L.R. Le 10 septembre 1976, la Faculté de droit de l'Université Laval, le Barreau du Québec et la Magistrature ont tenu, en la ville de Québec, une séance conjointe de rentrée des tribunaux et d'ouverture de l'année académique. Comme par le passé, nous publions des extraits à la fois des exposés alors prononcés et de l'échange des points de vue y ayant fait suite.

At a joint meeting held last September for the opening of the courts and the new academic year, Members of the Quebec Bar and Bench and law teachers of Laval University expressed their views on the part lawyers are now called upon to play in present day inquiries. We here publish extracts of the principal views verbally given on the subject.