Les Cahiers de droit

Volume 18, numéro 4, 1977

Sommaire (36 articles)

  1. Hommage à Jean-Charles Bonenfant

    p. 614–615

    Notice

  2. La responsabilité civile des professionnels réunis en société de droit ou de fait

    François Frenette

    p. 617–626

    Notice

    Résumé The rules of partnership are not without incidence upon the delictual and contractual responsibility of professionals practicing in common. The influence of such rules are here examined in relation, first of all, to the number of partners that can be personally held liable for professional faults committed by one or several members of the group and, finally, to the extent of their liability in such case.

L'égalité devant la loi

  1. L'égalité selon la Déclaration canadienne et la Charte québécoise : réflexions à partir de la nouvelle Loi sur les jurés ou la Charte des droits québécoise : un régime d'exception?

    Bernard Grenier

    p. 627–662

    Notice

    Résumé Quebec has a charter of Human Rights and Freedoms, which came into force by proclamation, on June 28th 1976. Yet, afresh Jurors Act was assented to barely two days later which contained a clause that a number of enumerated sections have effect notwithstanding the Charter. The concern there was clearly the right to equality, which is enshrined in some sections of the Charter. This article purports to assess the proper and specific meaning of equality within the context of the Quebec Charter, and in the light of the case law surrounding the Canadian Bill of Rights. The enactment of a non obstante clause into the Jurors Act has been, in our view, both unnecessary and inappropriate.

  2. Le contrôle de la discrimination raciale au Canada

    Walter S. Tarnopolsky

    p. 663–689

    Notice

    Résumé This article is divided into four parts: the first is a brief survey of race relations in Canada before the enactment of anti-discrimination legislation; the next two parts are devoted to an outline of the scope of this legislation and of the administration and enforcement of it ; finally, the last part suggests some current and possible future developments to make it more effective. Prior to the nineteenth century both the French and the British settlers in the colonies that have become a part of Canada had slaves. Slavery was not, however, very extensive due to lack of large agricultural holdings. At the end of the eighteenth century the legislature in Upper Canada and some judges in Lower Canada limited its expansion and helped to end its practice. The British Imperial Emancipation Act of 1833 brought it to an end. In the next few decades, up to the American Civil War, some Canadians helped run-away slaves from the slave-holding states in the United States, while others actively discouraged them from coming. By the end of the nineteenth century a new source of racial tension arose on the West Coast between the newer immigrants from Asia and the older immigrants from Europe. The result was the enactment of numerous discriminatory laws by the legislature of British Columbia and subsequently, on a lesser scale, by the other western provinces. Most of these remained on the statute books until after World War II. None of these laws were held invalid by the courts on the basis of their discriminatory nature. In addition, both the common law and the Civil Code were interpreted as not prohibiting private discrimination, except by hotel-keepers and common carriers. The change from this situation started in the I930's with a few specific legislative prohibitions of discrimination in specific instances. In the 1940's Ontario, with respect to signs and advertisements and Saskatchewan, with respect to a whole range of activities, enacted legislation prohibiting discrimination, enforcing their prohibitions with penal sanctions. The 1950's saw the introduction of fair employment and fair accommodation practices acts. By the I960's these were being consolidated into comprehensive human rights codes administered by human rights commissions. This trend has continued up to this year, with the result that all eleven jurisdictions have commissions charged with enforcing antidiscrimination codes or acts. The usual, but not invariable, procedure is the laying of a complaint, the investigation of it by the commission staff, an attempt to bring about a settlement and finally, failing that, a hearing before an adjudicative tribunal to determine whether an act of discrimination did occur and, if so, what redress is appropriate. In concluding, three suggestions are made regarding measures that could be taken to strengthen the effectiveness of anti-discrimination legislation: (I) contract compliance; (2) greater independence for the commissions from the government; and (3) giving the legislation paramountcy over other statutes.

  3. L'égalité selon la Cour suprême

    Denis Bourque

    p. 691–710

    Notice

    Résumé Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights.Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

  1. La « civilizatio » du droit canonique: une problématique du droit québécois

    Ernest Caparros

    p. 711–731

    Notice

    Résumé Civilizatio means for the author the phenomenon of integration in the State Law of some rules of Canon Law, by opposition to the notion of Canonizatio, put out forward by V. del Giudice, illustrating the opposite operation, viz. the integration into Canon Law of rules of the State Law. The author illustrated this phenomenon of Civilizatio in the Civil Law of Québec, and more specificaly in relation to article 127 of the Québec Civil Code. The Despatie Case is taken as the dividing point of the article. In the first part (The Apogee of Civilizatio) the author underlines the extensive interpretation of article 127 that allows the courts to accept the religious impediments of marriage. This civilizatio, until 1921 went further; the Québec courts limited themselves to ratifying the decisions of the ecclesiastical tribunals. However, this civilizatio of the jurisprudence found a few opponents among the judges. The second part (The Decline of civilizatio) is dedicated to the study of the DespatieCase and its effect on Québec jurisprudence. This decision of the Privy Council has not been followed unanimously by the Québec courts. The author points out how some courts have followed the precedent reluctantly, while others have set the precedent aside explicitly or implicitly, for different reasons, one of those reasons being that the interpretation given by the Privy Council to article 127, reducing it to a mere matter of conscience, made it empty of any juridical sense. Nevertheless, in 1972 the Québec Court of Appeal laconically confirmed the decision of the Privy Council. This article, at the same time, explicitly illustrates the phenomenon of civilizatio, and implicitly illustrates the practice of certain jurisdictions which empowers the courts not only to interpret a legal provision, but also to alter its meaning.

  2. Pour un index du droit en vigueur

    Denis Le May

    p. 733–744

    Notice

    Résumé The purpose of this article is to advocate the realization of a comprehensive Index for Quebec's statutes and regulations. The Index would naturally follow the permanent consolidation now under way but would also be available as an independant research tool. First, the computer-generated text for the establishment of basic data and the time and space limits of the proposed Index is examined. Second, ways of completing and organizing the vocabulary are studied to avoid lapses and render searching easier. The third step proposes the addition of a set of complementary lists such as, for example, local applications, popular titles, time restrictions etc. Finally the author expresses his views on editing, publishing and distributing and concludes with an overall enthusiastic feeling as to the advantages and potential uses of the Index.

  3. Prospectus Liability and Investor Protection in Quebec Law

    Robert Demers

    p. 745–796

    Notice

    Résumé Une corporation qui désire obtenir du capital sur le marché public doit informer les épargnants de son intention et renseigner ces personnes sur la nature et le sérieux de l'entreprise. La décision de participer au financement d'une corporation ne se prend qu'après avoir consulté le prospectus, le document essentiel d'une telle démarche. Pour assurer le succès d'une telle sollicitation financière, les promoteurs ont parfois exagéré la situation réelle de la compagnie et n'ont pas hésité à faire de fausses représentations sur la santé économique de leurs entreprises. L'incidence de la fraude et de la négligence à ce stade du financement public a donc donné lieu à une jurisprudence abondante dans la Province et à des législations spéciales. Cet article étudie, à la lumière de notre droit provincial, cet aspect bien particulier du droit corporatif tout en examinant de façon incidente l'approche de nos tribunaux et du Législateur au problème de préserver dans leur intégrité les règles du droit civil québécois face à l'assaut séculaire de la common law.

  4. Approche réglementaire de l'aménagement urbain

    Patrick Kenniff

    p. 797–832

    Notice

    Résumé This article is a modified version of a paper delivered at a Conference on the methodology of planning and development held at Trois-Rivières on May 19-20, 1977. Much of municipal control of urban development in Canada today is carried out through the regulatory process. Master plans, zoning, subdivision control and building by-laws are the mainstays of this system. In recent years, the legislatures of most Canadian provinces have incorporated in their respective Planning Acts certain mechanisms designed to improve the municipal regulatory response to the challenge of urban change. These mechanisms often appear to be needlessly complicated, whereas they are in fact designed to circumvent certain difficulties which are inherent in the classical regulatory system. The main objectives which these new mechanisms seek to attain are greater flexibility in the decision-making process, better phasing of development and increased public participation at all levels of planning and decision-making. This article concentrates on the law of the province of Québec, but reference is frequently made to the legislation of other Canadian jurisdictions in order to indicate which avenues might be followed in Québec in order to reform the law governing municipal planning by-laws. After a brief introduction, the second Part of this article is devoted to canvassing the principal legal rules governing municipal planning bylaws: first, with respect to by-laws in general; second, with respect to the extent of the limited powers delegated to municipalities; third, with respect to the adoption and amendment procedure for planning by-laws. The third Part is devoted to a comparative analysis of certain legal mechanisms some of which have become commonplace in other Canadian provinces but which remain largely untried in Quebec. These include minor variances, conditional uses, bonus zoning, site plan by-laws, contract zoning and development control. All of these techniques tend to favour greater flexibility in the administration of land-use planning. Other devices are more useful in seeking to achieve phased development. These include holding by-laws and the requirement that land be serviced before a building permit will issue (the latter technique has been in use in Quebec for many years and is authorized to a limited extent by statute). The article concludes by pointing out that some of the mechanisms canvassed would be of considerable use to town planners in Quebec and should be recognized by statute, preferably in the forthcoming Planning Bill which the present government has promised to introduce in the near future. Town planners should be wary of using them without such legislative sanction, however, because the Canadian courts, with limited exceptions such as in the case of holding by-laws, have struck down attempts by municipalities to step outside the limited statutory authority vested in them.

  5. Observations sur le Rapport de l'Office de révision du Code civil sur les sûretés réelles

    Louise Poudrier-LeBel et Louis LeBel

    p. 833–858

    Notice

    Résumé The Security Law Committee of the Civil Code Revision Office of the Province of Quebec issued its report late in 1975 ; it advocates fundamental changes in the law of security. According to the Committee, the notion of hypothec should be broadened in Quebec Law. It would become a form of security interest in all kinds of property, moveable or immoveable, corporeal or incorporeal. Legal privileges and construction liens would disappear. The authors comment on the reforms advocated by the Committee. They sommarize their main aspects and some of their effects on existing legal and commercial practices. They suggest a reassessment of the outright abolition of construction liens and discuss some of the problems raised by the regulation of hypothecary recourses in the Report.

  6. Le Rapport de l'Office de revision du Code civil sur la personnalité juridique

    Edith Deleury et Robert Demers

    p. 859–880

    Notice

    Résumé The Civil Code Revision Office has produced an interesting report on legal personality. In this commentary, the authors have sought to underline the major changes suggested by the Report and to criticize certain positions adopted therein. The major areas of controversy, such as the respect of privacy, the rights of children and the nature of corporations as fictitious persons have been examined in some detail. On the whole, the Report produces a fine compendium of the existing rules whilst suggesting changes that reveal a conscience of the urgent problems on the question.

  7. La Cour provinciale et l'art. 96 de l'A.A.N.B.

    Jacques Deslauriers

    p. 881–920

    Notice

    Résumé In the Province of Quebec, the Provincial Court constitutes one of the most important benches after the Court of Appeal and the Superior Court. At its beginning in 1869, the Provincial Court was termed the Magistrate's Court and its juridiction was very circumscribed. The constitutional problem arising from the existence of such a court was not obvious as it is today. In 1867, when the B.N.A. Act was drafted, the powers concerning the administration of justice in the Province, including the constitution, maintenance and organisation of provincial courts, both civil and criminal, and including procedure in civil matters, were conferred on the provinces by section 92(14). But by section 96, it was provided that the Governor General should appoint the judges of the Superior, District and County courts in each province. These provisions of the B.N.A. Act are extremely confused, so that more than 130 published cases have not succeeded in clarifying definitively the interpretation of sections 96 and 92(14), and such a situation imperils the stability of the judiciary in the Canadian provinces. For the analysis of section 96 of the B.N.A. Act, we must refer to some concepts in English Law about Superior Courts and Inferior Courts. The Magistrate's Court, now the Provincial Court in Quebec, has in fact replaced the Circuit Court whose competence was exercised by judges of the Superior Court appointed by the Federal Government. It is not obvious that in 1867 the Circuit Court was an inferior bench in the mind of the drafters of the B.N.A. Act. At that time the inferior courts in the Province of Quebec were the Commissary Courts and the Justices of the Peace. In 1869 when the Magistrate's Court was established, nobody was wandering about the constitutional question because the jurisdiction of the Court was limited to the collection of municipal and school taxes and to suits actions in which the amount was less than $ 25.00. But in 1888 and 1889 when the Provincial Legislature attempted to replace the Circuit Court in the District of Montreal with the Magistrate's Court, the Federal Government disallowed the laws because judges appointed by the Provincial Government were invested with powers which were up to that time exercised by judges appointed by virtue of section 96 of the B.N.A. Act. The Federal Government was then invited to appoint judges especially affected to the Circuit Court of Montreal, but the Magistrate's Court continued to exist in other judicial districts without extent of jurisdiction. In 1922, the Provincial Legislature tried agin to raise the powers of the Magistrate's Court by transferring to it all the functions exercised by Superior Court judges in the Circuit Court. But at this moment, the Federal Government did not intervene with it's disallowance power. So, once the delay for disallowance had expired, the Provincial Government continued to raise the competence of the Magistrate's court until the abolition of the Circuit Court in 1952. Since 1952, the powers of the Magistrate's Court have not ceased to grow. In 1965, with the adoption of the new Code of Civil Procedure, the name of Magistrate's Court was changed to become the Provincial Court. In spite of it's importance, the constitutional question is not yet settled, and whatever method we use, we cannot justify the constitutionality of the Provincial Court. Several methods have been elaborated by judges to interpret section 96 of the B.N.A. Act. The particularist method consists in appreciating if a board or a bench is invested with powers which, in 1867, were exercised by judges appointed by the Federal Government. If so, the bench is considered inconstitutional. Another method is the functionalist method by which it is presumed that the judicial function should be exercised only by judges appointed by virtue of section 96. This method is not very often used. Finally, there is the globalist method which is more comprehensive but also more abstract, which consists in the recognition of the fact by the growth of its jurisdiction the Provincial Court has become a superior, district or county Court. Whatever method is used, it is very difficult to establish the constitutionality of the Provincial Court in the Province of Quebec. This situation incites a reflexion about the opportunity of section 96 of the B.N.A. ACT which restrains the Province from adopting judicial reforms that are very necessary. If after 110 years, we are not clear about the interpretation that should be given to section 96, we shall never be. In the actual context, the arguments presented by the Fathers of the Confederation for the drafting of section 96 are not very pertinent. If we examine other federal constitutions in foreign countries, it appears that in every case the drafters of such constitutions carefully avoid the situation in which we are placed by section 96 of the B.N. A. Act. Perhaps the better solution for us is the abrogation of section 96 of the B.N.A. act.

Chronique de jurisprudence

  1. Résolution d'une promesse de vente immobilière: nécessité de l'avis de 60 jours

    Thérèse Rousseau-Houle

    p. 921–930

    Notice

    Résumé This appeal was originally heard by a bench of three judges and, afterwards, considered by a bench of nine in an effort to resolve recent contradictory decisions. It was held that the possessor of an immovable under a promise of sale authorizing the promising vendor to retake possession of the property without compensation or indemnity in the event of failure by the promising purchaser to fulfil his obligations under the deed, is entitled to the sixty-day notice prescribed by articles 1040a and following of the Civil code. In the matter, the creditor, did not serve, as required by articles 1040a and 1040d C.c, the 60 days notice on the possessor with promise of sale. The fact that it would be pointless for the creditor to register the notice against his own property upon which the debtor had yet no registered right of ownership has no bearing, in the Court's opinion, upon the conclusion that the creditor is not obliged to give a 60 day notice to the debtor.

  2. De l'adoption et de « l'abandon » d'un enfant légitime ou l'art de tourner la loi

    Mireille Castelli

    p. 931–935

    Notice

    Résumé At issue in these two cases are, first, the statutory requirements which relate to the abandonment and the adoptability of a legitimate child and, second, the statutory requirements which determine the jurisdiction of the Social Welfare Court with respect to the child's custody. The statutory conditions relative to the abandonment of the child during one year by the father could not be met because the father had been refused custody of the child which he had sought before the expiration of the required period of time. Moreover, there is the question whether the Social Welfare Court was competent to pass on the matter since the child was not adoptable and therefore had been irregularly placed.

Jugements inédits

  1. Droits de l'homme et libertés fondamentales - Droit de propriété

    p. 937–943

    Notice

  2. Droits de l'homme et libertés fondamentales - Preuve

    p. 945–948

    Notice

Chronique bibliographique

  1. J .C. SMITH, Legal Obligation, University of Toronto Press, Toronto and Buffalo, 1976, 256 pages.

    Maurice Tancelin

    p. 949–950

    Notice

  2. Serge GUINCHARD, L'affectation des biens en droit privé français, Bibliothèque de droit privé, Tome 145, L.G.D.J., Paris, 1976, 429 pages.

    Maurice Tancelin

    p. 950–952

    Notice

  3. Clayton C. RUBY, Sentencing, Toronto, Butterworths, 1976, 537 pages, $55.00

    Gilles Létourneau

    p. 952–957

    Notice

  4. Marcel GUY, Répertoire de jurisprudence civile du Québec, 1974, s.é. « Université de Sherbrooke, Faculté de droit ] , s.d. [1977], 286 p., $20.00

    Denis Le May

    p. 957–958

    Notice

  5. André DUNES, Documentation juridique, Paris, Dalloz, Coll. « Méthodes du droit », 1977, 198 pp., 46FF

    Denis Le May

    p. 958–959

    Notice

  6. Tabrizi BENSALAH, L'enquête internationale dans le règlement des conflits, règles juridiques applicables, préface de Suzanne Bastid, L.G.D.J., Paris, 1976, 270 pp.

    Hussein El Mogui

    p. 959–960

    Notice

  7. Jacques DE LANVERSIN, La propriété, une nouvelle règle du jeu? P.U.F., Collection Droit d'aujourd'hui, Paris, 1975, 190 pages.

    Maurice Tancelin

    p. 960–962

    Notice

  8. Jean-Marie DENQUIN, Référendum et plébiscite, L.G.D.J., Paris, 1976.

    Gil Rémillard

    p. 962–963

    Notice

  9. Jacques CADART, Institutions politiques et droit constitutionnel, L.G.D.J., Paris, 1975.

    Gil Rémillard

    p. 963–964

    Notice

  10. Colloque Droit nucléaire et droit océanique, organisé par le Centre d'études et de recherches de droit international de l'U.E.R. développement, études internationales, européennes et comparatives de Paris 1 et le Centre d'études du droit de l'énergie atomique de l'Institut de Droit comparé de Paris, Laboratoire associé du CNRS, les 12 et 13 juin 1975, préface de C.-A. COLLIARD, Economica, 1977, 252 pages.

    Maurice Tancelin

    p. 964–965

    Notice

  11. Opérations du tourisme international et transports aériens. En collaboration, par J. DAVID, Dr G. GAIDONI, E. HUDSON, J.-P. PETITJEAN, P. VELLAS, Paris, L.G.D.J., 1975, 164 pages.

    Maurice Tancelin

    p. 965–966

    Notice

  12. Inflation, indexation et conflits sociaux. Actes du 30e congrès du Département des relations industrielles de l'Université Laval. En collaboration, publié sous la direction de Bertrand Belzile, Jean Boivin, Gilles Laflamme et Jean Sexton, Les Presses de l'Université Laval, Québec, 1975, 228 pages.

    Maurice Tancelin

    p. 966–967

    Notice

  13. Georges BOYER-CHAMMARD, Paul MONZEIN, La responsabilité médicale, Collection SUP, « Le Juriste », Section dirigée par Jean Carbonnier, Presses Universitaires de France, Paris, 1974, 281 pages.

    Maurice Tancelin

    p. 967–968

    Notice

  14. Bibliothèque de la Législature. Index des lois à caractère privé du Québec, 1867-1975, Assemblée nationale, Coll. Bibliographie et documentation, Québec, 1977, 217 p.

    Denis Le May

    p. 968–969

    Notice

  1. Livres reçus

    p. 970

    Notice

Index du volume 18

  1. Index des auteurs

    p. 973–975

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  2. Index des jugements inédits

    p. 975–976

    Notice

  3. Index de la chronique de jurisprudence

    p. 976

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  4. Index de la chronique bibliographique

    p. 976–977

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  5. Index des sujets

    p. 977–980

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