In the sphere of public inquiries, i.e. those which are limited to the exercice of the power of inquiry and recommendation to a higher instance, the Quebec legislator has enacted different provisions conferring upon the investigators the power to punish acts of contempt.
Such provisions were necessary because investigators, as opposed to judges of the superior courts and the courts of records, possess no inherent capacity to impose penalties for acts of contempt committed in or out of their presence.
To this end, the legislator has conferred upon investigators the power to condemn for contempt of court, by provisions which refer to the powers of the Superior Court in this matter. The investigators therefore may punish acts of contempt committed in their presence, such as witnesses' refusal to testify or produce documents. It is however more difficult to determine if the investigators are empowered to punish acts of contempt committed outside their presence, for usually inferior courts are not so empowered.
In this connection, the courts have also examined the nature of contempt, which can be either civil or criminal depending on the nature of the jurisdiction exercised and the offence committed.
With respect to public inquiries, it is equally interesting to ask oneself if the investigators can use contempt of court as a means of punishment. Relative to this question, we think that the investigators should sanction contempt only as a coercive means and not as punishment.
Upon conviction of contempt, it is important that the convicted parties have some recourse, since the decisions may have serious consequences such as a fine or imprisonment. In this regard, the courts agree to exercice their powers of control when commissioners exceed their jurisdiction. There is however no right to appeal the commissioner's decision.
Investigators may conceivably use such vast powers in an arbitrary and abusive manner. In a perspective of legislative reform, we would be of the opinion that it would be preferable to attribute such a power to a court of justice rather than to the investigators themselves.
This paper analyses the legal implications of photocopying with regard to the Copyright Act of Canada. Under the law, photocopying is normally illegal, unless it amounts to « fair dealing ». However, this latter exception, at best ambiguous, does not provide a safe shelter under which some of the most common practices could be condoned. In fact, what falls in the scope of the « fair dealing » provision remains a most debatable matter.
From these considerations stems the urgency of a change in the law. Parliament should insert a provision delineating in a practical way the sphere of lawful photocopying. On the other hand, copyright owners should be compensated for the use made of their works and collective mechanisms should be created for the recovery of such compensation.
While the terms « authorization » and « consent » are commonly used in juridical language, their definition end precise meaning are not acknowledged by the Quebec legislator. In fact the two terms are often used interchangeably. Both the legislative history of the first paragraph of article 20 of the Civil Code, an article which provides protective measures for the discerning minor entering into a medical contract, and the reforms suggested by the Civil Code Revision Office, demonstrate this confusion as to the proper juridical terms and as to the role of the parental and judicial sanction. The author maintains that the term « consent » is not applicable to the juridical role of the parent of judge.
This essay defines the concept of « investment contract » as used in the securities acts. It analyses the classical Howey test and the more recent « risk capital » approach as formulated by Sobieski and Hawaï Market.
It is suggested that Howey consisted originally of the well-known, ever repeated classical test, and of an alternative approach based on risk. This last important element of Howey was mistakenly dropped by the Courts. It is submitted that the Howey test, regenerated and liberally applied, is dynamic and well adapted to cover all possible situations and precludes the necessity of a different definition.
U.S. Courts increasingly use the « investment contract » concept as afar-reaching catchall definition. It is further submitted that the Canadian Courts, encouraged by the Supreme Court's decision in Pacific Coast Coin Exchange of Canada, might use the concept even more comprehensively than their American counterparts.
The purpose of the present paper is to evaluate current Quebec and some Canadian computerized legal information projects. The most important part of the paper studies projects undertaken in relation with either one of the main sources of the law in Quebec: first, statutes and regulations, second, case law and, finally, legal writings (books and periodicals).
A very brief survey enumerates the main problems created by the impact of the computer and the legal challenge that it represents (crime by computer, EFT, etc.). Future perspectives are outlined, taking into consideration, in part, what is done in certain other countries. The situation is described as it was during and up to the first six months of 1978.
The Charter of Human Rights and Freedoms passed by the Legislature of Québec in 1975 suffers from major restrictions as to its scope. First, it is purely declaratory of existing freedoms, and does not purport to create new ones ; the Charter therefore only prevails on provincial statutes passed after it, and provided that such later acts do not specifically exclude the application of the Charter. Second, the Charter only applies to matters coming within provincial legislative power. Drawing the boundaries of any specific freedom therefore requires identification of the restrictions set upon it by both provincial legislation and federal jurisdiction. This paper attempts such a dedication of the fundamental rights of association and demonstration, set out in s. 3 of the Charter.
Among matters coming within federal jurisdiction, the Criminal Code and the concept of national security are the main limitations on free association and demonstration. Provincial law on labour relations, trespass and private nuisance, the preservation of private property, and municipal regulation of nuisances, impose equally severe limitations.
The problem of unjust enrichment has often been raised in recent years with reference to litigation concerning contracts with public authorities. Many times, parties to such contracts have invoked this principle to obtain compensation for services provided under contracts later declared irregular or void. The courts have then attempted to apply in the context of administrative law the conditions laid down by civil law doctrine for unjust enrichment.
The transposition to administrative law of the civil concept of unjust enrichment does not, however, appear to have been adequate. To begin with, the principle of unjust enrichment is difficult to dissociate from the quasi-contract of negotiorum gestio in administrative law. Further, the material and legal conditions of unjust enrichment cannot be applied as a whole to administrative law. In this field, unjust enrichment appears as a true quasi-contract in the sense that it requires the assent of the person enriched. Furthermore, the enrichment must have resulted in a real benefit in the general interest of the administration. These special conditions require a different approach toward the notion of unjust enrichment in administrative law.
This approach may be elaborated from the Common Law notion of quantum meruit or from the theory of unjust enrichment in French administrative law.
A new concept of unjust enrichment in Quebec administrative law would lead to finding, in the field of quasi-contracts, a solution which would provide for the protection of both public finances and the individual interests of co-contractants.
The function of interlocutory injunctions is changing in Quebec procedural law. Its field of operation is extending and the case of Driscoll College v. Morin opens up new perspectives as regards four points : the use of mandamus, Crown immunity, administrative discretion and the power to order the payment of a sum of money. Yet it seems that new difficulties will rise before long, which may require a complete reassessment of the interlocutory injunction's role in Quebec law.
In the Farrah case, the Supreme Court of Canada declared unconstitutional a provision in Quebec Transport Act on the grounds that, when read with privative clauses also contained in the Act, it purported to vest in the Transport Tribunal jurisdiction analogous to the Superior Court's jurisdiction to review proceedings before inferior tribunals in the province. Five members of the Court held that, while a provincial Legislature may, by enacting privative clauses, preclude review by the Superior Court of decisions made by a tribunal within its jurisdiction, it cannot transfer the power to review such matters to a provincially-appointed tribunal, since review powers can only be exercised by courts listed in s. 96 of the BNA Act.
The right of a de facto shareholder under the Canada Business Corporations Act of becoming a registered holder is specifically dealt with under the statute. Who can be considered as such, however, is not so clear and the rules of common law have to be considered in this context. The basis of de facto relationships in corporate law can be found in the doctrine of estoppel by conduct and the theory of the implied contract. In civil law, as estoppel is unknown, the only foundation left for such a rule is the implied contract. The following note examines these various points from the vista of civilian concepts.
On November 30th, 1977, the Supreme Court rendered two important decisions which put an end to the provincial claims for jurisdiction on cable distribution undertakings. On January 19, 1978, the Supreme Court rendered a third judgment dealing with provincial consumer protection legislation affecting broadcasting undertakings.
These three judgments although flowing from unrelated matters, must be read together. They confirm that the federal power over radiocommunications is exclusive. Any service which is connected thereto such as the distribution of programming by means of cables form and integral part of the broadcasting system and, as a result, falls under the federal power. The fact that the cable distribution service is owned and operated by a different person and that it has its own infrastructure is immaterial. The question is : what is the service being rendered. If, as the Court found in the case, the service is mainly to facilitate the public's assess to broadcasting, then it is an integral part thereof.
The Court found, however, that a province could control advertising even where it was destined for broadcasting so long as the regulation was directed at the manufacturer and not the broadcaster. It is unclear, however, whether this power would survive the adoption by Parliament of conflicting legislation on the same subject matter.
This comment points out a confusion among both French and Canadian authors about the real nature of the right of superficies.
Under the single name of this jus in re, two institutions must be distinguished. One should more aptly be called "superficiary property" ; it bears on the upper portion of the land, excluding the soil but including a consecutive right of accession, within the meaning of art. 414 of the Civil Code.
The other institution subsumed under the same name is the "right of superficies" proper, conferring ownership of the buildings or improvements made on the land, but without implying any conveyance, from the owner of the land to the beneficiary of the right of superficies, of property in the soil. In that sense, the right of superficies stands in relation to the ownership of the land as a dismemberment of that ownership, which is incomplete since the right of accession under art. 414 belongs to another party.
The Supreme Court of Canada has recently rendered judgment in what has come to be known as the Omelet Case. The Court was called upon to rule on the constitutionality of several provisions in federal and Ontario law, the purpose of which was to set up a plan for the marketing of eggs in Canada.
The plan provided for a levy on producers and had as its objectives the attribution to each province of a share of the national market for eggs, and the setting of production quotas within each province as regards its part of the market. Such quotas were to be set in an identical manner for all producers, whether they be engaged in intraprovincial, inter provincial, or export trade. The province of Ontario also provided for the imposition of quotas as to the means of production, particularly as to the number of domestic hens a producer could possess.
This paper shows how the distribution of legislative powers in respect of taxation and commerce is affected by the Supreme Court's decision. It is suggested that the Court has completely abandoned the doctrine of the Crystal Dairy case, in which the Privy Council had ruled that the levying of fees on producers was a matter of taxation. The paper also outlines the consequences of certain remarks by Chief Justice Laskin on the spending power of Parliament.
The paper then discusses the reticence of certain members of the Court to approve the measures adopted by Ontario concerning the control of means of production. Such reticence illustrates the difficulties faced by the Court when trying to define or identify which measures can be adopted by the provinces, within the framework of agricultural marketing plans, without encroaching upon federal jurisdiction over interprovincial trade under subs. 91(2) of the BNA Act.
Finally, the paper attempts to show how the scope of s. 121 of the BNA Act is limited by the ruling that it cannot hamper federal regulation of interprovincial trade under subs. 91(2). This latest decision confirms the broadening of the scope of subs. 91(2), already apparent in the Caloil case and the Manitoba Egg reference. The strenghtening of subs. 91(2) may imply that s. 121 will be applied differently, according to whether federal or provincial legislation is involved.
The following commentary discusses two aspects of Bill 69, an Act to Amend the Environmental Quality Act focusing on the concept of citizen participation as embodied in the Bill and the new environmental impact assesment procedures set up in the proposed amendments. It deplores the fact that, as proposed, the amending act would leave too much discretion with the Minister of the environment in deciding to allow public hearings in the processes. The author also regrets that the important questions relating to the environmental assesment procedure are left to be determined by the rulemaking authority of the government thus thwarting a serious discussion of their scope and seriousness.