Volume 20, Number 3, 1979

EN:

The owner's power over his property has for centuries been the object of a tripartite analysis (jus utendi, jus fruendi, jus abutendi) leaving little or no doubt as to the contents of the most important of all real rights. In the author's opinion, the traditional analysis is incomplete, since it does not account for a basic, subsisting element underlying these three attributes of ownership.

FR:

L'imputation de la responsabilité des pertes et dommages subis par la cargaison des navires dans les ports québécois est une question non encore tranchée. Le problème se complique du fait de l'introduction, dans la plupart des contrats de transport maritime international par connaissement, de la clause dite « Himalaya ». Cette clause représente à peu près en common law l'équivalent de la stipulation pour autrui. La validité de ces clauses a souvent été contestée avec succès devant les tribunaux de plusieurs pays, notamment de Grande-Bretagne, des États-Unis et du Canada. Par ailleurs, en droit civil, si la stipulation pour autrui est admise, ce n'est qu'à titre d'exception et sous des conditions très précises.

L'auteur recense la jurisprudence des pays de common law relativement à la clause Himalaya, et examine ensuite la validité de cette clause en droit civil à titre de stipulation pour autrui.

Il traite également du contrat de porte fort, et de la validité des clauses de non-responsabilité en cas de faute lourde.

Enfin, il analyse cinq décisions québécoises récentes, ainsi qu'une importante décision de la High Court australienne.

EN:

In the absence of clear legislative intent as to the status of a corporation or public body as a Crown agent or Government mandatary, the courts apply one or both of two tests.

The function test, based on the concept of public purpose, requires that the court decides what kind of activities can be held as functions of Government. The test is therefore subjective and not particularly satisfactory, bearing in mind that it is not for the courts to impose upon the Legislature any political doctrine as to what are the proper functions of Government.

The control test requires that the whole statutory framework be examined in order to determine whether or not the corporation or public body has discretionary powers of its own, exerciseable with some degree of independence from the Cabinet. Corporate status, financial autonomy, independence of the managers and control of the corporation's or public body's activities are components of the test. Any one factor will not be determinative in itself. But when several point the same way, the courts will tend to follow their lead. Yet, this test has failed to produce completely consistent results.

The practical end of the exercise is to determine whether such public bodies or corporations are entitled, as Crown agents, to some or all of the privileges, immunities and prerogative powers enjoyed by the Crown. Some of these attributes are examined in this paper, such as the Crown's immunity from civil and criminal liability, statute law, taxation, and civil execution. Bankruptcy of public corporations is also considered.

The authors suggest that the courts should no longer be left to apply these tests, since that may often frustrate the intent of the Legislature not to confer the attributes of a Crown agent. The Interpretation Act could be amended to make it clear that such status can only be conferred by an express enactment. Further, the Legislature should, when conferring such status, specify which attributes are meant to vest in the Crown agent.

EN:

Canada and Quebec have been actively involved in the trend which has resulted in the existence, within the political system, of a new institution : the Ombudsman.

While the Government of Canada hesitated for some time before establishing the institution for federal purposes, the Quebec Public Protector has existed for somewhat more than 10 years, and the new institution has been recognized a proper remedy to the weaknesses of the judicial system.

This article enumerates some of the weaknesses of judicial review and attempts to demonstrate that citizens are better protected by the Ombudsman because of the simplicity of the available remedies and the efficiency of settlement procedures.

The new institution could not be introduced next to the judicial system without creating some problems. This article considers the respective domains which fall within the jurisdiction of the courts and of Ombudsmen, and the conflicts which could arise.

Finally, the operation of the courts and of the Ombudsman will be considered, as well as the advantages and deficiencies of both institutions.

EN:

This article examines the « going private » phenomenon as it has developed in the United States and Canada over the past few years as well as its implications for Quebec law.

« Going private » transactions involve different means of corporate reorganization that allow a few controlling shareholders to eliminate, without adequate compensation, most other shareholders from further participation in a corporate body.

Such transactions are of interest to those who study company law or securities law as the methods employed often go beyond the spirit of both. The author attempts to demonstrate the role each can play in preventing abuses of minority rights. Corporate law, while ensuring majority rule, seeks to protect individual shareholders while securities law has developed to avoid the manipulation of individual shareholders in transactions involving securities.

The author believes that « going private » should take place only if full disclosure of the aims of the controlling group have been given to the minority, if there is a valid business purpose for going private and if the eliminated shareholders are treated fairly. Examples of these criteria are to be found in recent American, Canadian and Quebec jurisprudence as well as in the policy statements of the Securities Exchange Commission and the Ontario Securities Commission. These are analysed in relation to present Quebec law.

The author suggests that the Quebec Securities Commission should adopt a policy statement on « going private » similar to that of the OSC. This would be a better means of ensuring that the Quebec Securities Commission fulfill its role of promoting investor protection and an efficient securities market.

EN:

The author discusses certain reforms to the law of police powers which are currently being demanded by the English police.

He notes that the English police have long acted under a regime of limited powers. These have proven to be irksome, but they have also conduced to a regime under which the police use the minimum powers possible and rely considerably on public support in the fight against crime. The police however urge that further powers are necessary, notably powers to stop and question persons in public places and to hold arrested persons for interrogation concerning the commission of offences before charging the person or bringing him before a magistrate. These wide powers resemble those of certain other systems, notably France, the practical workings of which are comparatively little known in Britain. They are of doubtful legality in view of the European Convention on Human Rights.

The author questions the necessity for and the desirability of such powers. He contends that they are apt to be abused, and that the French experience affords a guide to what might happen. He argues that formal powers are no substitute for public support. He fears that powers to stop and search will cause resentment, and that little countervailing practical benefit will result from them. As regards powers to detain persons before charging, he argues that such procedures will erode existing civil liberties safeguards and that certain proposed safeguards such as limiting the time available to the police for detention will prove ineffectual. There will be little time to inform defence lawyers of the nature of the case at an early stage and magistrates will probably support the police. If detention is to be allowed judicial permission should, as a general rule, be sought in advance from a High Court Judge. Here he advances a model based upon the experience of Cyprus.

The author also considers, briefly, the modalities of interrogation. He considers that the suspect must continue to have a right to silence. He must also have the right to the timely assistance of a defence lawyer, a right which presently is too often subverted by the practice. The author considers also that thought should be given to the question whether a suspect should have the right to the assistance of a lawyer during police interrogation.

The author concludes that in assessing the nature of and necessity for accretions and additions to police powers, the English should not lose sight of their historic attachment to civil liberties.