Volume 19, Number 3, 1978

EN:

Recent works in linguistics and on the philosophy of interpretation have some relevance for lawyers, since law can be characterized to a certain extent, especially in an age of burgeoning legislation, as a language-related science, as an exercise in reading the text of statutes.

The textual basis of law explains why laymen are so frequently complaining about its formal nature, i.e. its almost exclusive concern with words rather than concepts, and its total disregard for social reality. To say that such criticism can be explained is not, however, saying that it is valid.

This paper attempts to show that the close reliance of law on the wording of legislation does not, or at least should not, lead to formalism. For the meaning of legislation is derived not only from its own words, but also from its context and social background. Indeed, legislation can only acquire its ultimate and complete meaning through its application to individual cases.

EN:

The following article deals with the problem of « misuse of office » in the principal-agent relationship under Quebec civil law. Despite the abundance of case law, solutions to the problem are not well defined especially in cases involving personality defects of the agent.

The law concerning « misuse of office » is generally to be found in article 1054(7) of the Quebec Civil Code concerning the liability of principals. This controverted article not only deals with the liability of masters for servants, but also with the problem of torts committed by agents (art. 1731 C.C.). It also has an effect on workmen's compensation laws.

The main issue in « misuse of office » is the determination of what constitutes a carrying out of duties within the scope of employment. The principal can only be held liable for the tort of an agent if three conditions are met : the tort feasor must have been his agent ; he must have committed a wrongful act ; and this act must have been committed in the scope of his employment.

After a general view of the fundamental principles involved, the paper defines « misuse of office » as « all torts committed by an agent in the exercice of his duties, even when not authorized to carry out the duties in the manner which he did, but where the activity is designed to benefit his principal ». The only case where the principal escapes liability is where the agent committed a tort which did not involve his work. The agent in that case no longer acts for the benefit of his principal, but is pursuing his personal interest. The principal is then no longer held liable.

Determination of the notion of « benefit » therefore becomes essential. Far from being a simple question of monetary profit, it is extended to mean any activity which can serve the principal's enterprise, whether in the improvement of public relations, or of relations with staff or suppliers. The pecuniary gain becomes but one element amongst many others. It is not even necessary for the benefit to ever materialize. The simple fact that the intention was to benefit the principal is sufficient.

The review of the case law leads the author to conclude that the modification of the ways in which the duties are carried out has little effect on the liability of the principal.

For instance, the agent can change the time, the place and the manner of performance and still engage the liability of the principal. Quebec courts have gone even further. They have held that an agent can go beyond the usual scope of his duties or take up some that he was not authorized to do, without affecting the liability of the principal. In fact, Quebec courts have developed a broad interpretation of the notion of duty. They consider that the agent is called upon to perform tasks more or less accessory to his main duties and thus extend the principal's liability to all of them.

As already stated, the notion of «benefit to the principal» is a determining factor. It is not necessary that the agent's work for the principal be exclusive. The agent that derives a personal benefit and simultaneously intends to benefit the principal, will still be considered to have performed an act in the course of his duties. The paper examines a series of problems involving the personality of the agent. Certain tortious acts can be committed in relations with third parties or co-workers, and are the direct result of a personality defect of the agent. Such is the case of a restaurant worker who physically attacks a client as the result of a dispute or of the agent stealing from a client. The paper points out the great difficulty that Quebec courts have experienced in the legal qualification of this situation.

After an in-depth study of the Quebec case law, the paper concludes that the trend is to maintain the liability of the principal in these cases. One criterion appears to be well defined : the principal bears the responsibility, when hiring someone, to assure his clients or the persons with whom he does business, that he will respect their property as well as their moral and physical integrity.

The necessary tie between the duties of the agent and the relationship with persons coming in contact with him, will engage the liability of the principal. Every time the agent comes in contact with a person in the carrying out of business, the principal will be held responsible for the damage resulting from personality defects of the agent. In all other cases, the relation will be considered personal to the agent and the principal will be relieved of any liability.

EN:

The public inquiry has long been used to gather information of concern to the State in order that the best decisions may be made according to the information thereby obtained. The Quebec legislator has, therefore, foreseen the need for different laws or particular provisions that would enable the government to make use of this procedure. Among these we find the laws governing commissions of inquiry, police, municipal commissions, coroners and arson investigations.

The public often follows closely the proceedings of such inquiries, which, consequently, become a means of informing, educating, and establishing a dialogue with, the public.

However, certain public inquiries, such as the Quebec Commission of Inquiry on Organized Crime, the commission of inquiry on freedom of unionization and the Keable Commission, run the risk of affecting the rights of citizens, namely those summoned to appear during such hearings as well as those whose names appear in the testimony given. Hence, some individuals may see their reputations tarnished because of facts brought to light during the inquiry, lose their jobs as a result of commission recommendations or many later have to face either civil or criminal prosecution.

It is, therefore, important that such persons be given access to the courts, in order to either challenge the jurisdiction of the commission or demand that the inquiry respect the rules of natural justice.

In this area, judicial review depends on the characterization of the method of operation of the public inquiry as a whole, i.e. as the exercise by the commissioners of a recommendatory power, or of interlocutory decisions taken during the course of the inquiry. Depending on the judicial or administrative nature of the activity concerned, the courts will decide whether or not to exercise their superintending and reforming powers.

Thus, the courts will intervene only if the function exercised is of a judicial nature. In this regard, the courts deem that an administrative body exercises a judicial function, on the one hand when it determines the rights of individuals and, on the other, when such a body has a duty to act judicially. Apart from some rare exceptions, the courts have ruled that the exercise of the power of inquiry generally does not trench on the rights of citizens and that such a power is therefore administrative in nature.

At present, the issue as to whether the inquiry determines the rights of individuals is considered by the courts in the light of either one of two theories, which can be labelled the binary and global theories. Supporters of the binary theory feel that the inquiry and the decisions which may proceed therefrom represent two quite distinct stages and the interference with the rights of individuals can only occur when a decision is made. We find an illustration of this reasoning in, among others cases, Guay v. Lafleur and St-John v. Fraser.

Proponents of the second theory are agreed that the decision is an integral part of the inquiry process and that interference with rights occurs at the inquiry level itself. This argument is exemplified adequately by the judgement in Saulnier v. Quebec Police Commission.

This paper also examines the characterization of interlocutory decisions made by a commission in the course of its proceedings. In this respect, the courts feel that coercive powers are of a judicial nature, while decisions concerning the administration of evidence are seen as administrative. A study of the abundant jurisprudence in this area leads us to conclude that the Quebec legislator should provide for a specific recourse, similar to that existing presently in Ontario, which would allow citizens access to the courts to challenge decisions made by commissions of inquiry.

EN:

The case of Regent Taxi has given rise to considerable debate in the interpretation of the word « another» and whether it should be read restrictively or given a wide meaning.

In a thorough analysis of the majority and minority opinions of the Supreme Court decision, an attempt has been made to circumscribe the positions adopted. Thereafter, an analysis of subsequent cases has been carried out to establish whether the majority views expressed by the Supreme Court have settled the debate definitely of whether the question remains unresolved.

EN:

Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies.

In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law.

The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure.

The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.

EN:

The rise in the cost of living has worsened the alimentary creditor's plight. Given the present economic context, the creditor's claim, which is supposed to provide him with the basic essentials, has fallen in value and no longer adequately serves its purpose.

This study draws up an inventory of possible solutions to remedy the situation, such as the indexing of alimony.