Volume 22, numéro 3-4, 1981

EN :

The present article examines, in the light of recent trends in international economic law, the various means offered to States for protecting their industries threatened by imports. What comes out most clearly from this inquiry is the growing importance of the concept of prejudice as a legal justification for State protectionism, a development which, if not obvious, is nevertheless changing in depth the original structure of the General Agreement on Tarifs and Trade. Among other consequences, this tendency to make State intervention dependent upon a finding of serious prejudice favors the development, at the national level, of quasi-judicial organs specialised in the field of international trade, each with their own distinct interpretation of what constituted a prejudice and of the link of causality required to justify limiting imports. Such a development, however dangerous it may be to international trade, offers at least a minimum of transparency as far as State protectionism is concerned and can simply not be ignored by private enterprises.

EN :

This article by a leading specialist on Banking Law discusses the legal implications resulting from the extension or withdrawal of a line of credit by a banking institution to a failing client.

French Courts consider the bank professionaly liable to it's debtor and it's debtor's creditors when credit is withdrawn without proper justification. The bank may also be liable to it's client's creditors if credit is maintained and so leaves the client's creditors under the impression that their debtor is still a going concern or hides its imminent bankruptcy.

This article is of special interest to the Canadian lawyer as the french decisions are based on section 1382 of the french Code Civil similar to section 1053 C.C.

EN :

This article deals with the creditor's duty of good faith towards a business in financial difficulties. While the common law rules have established over the years a duty of bona fides towards the debtor, our provincial courts were wary of such innovations and, as a general rule, had refused to consider any major changes in their policy.

Recent pronouncements, however, indicate a more equitable interpretation of the creditor-debtor relationship and a consciousness of the role of the judiciary in difficult economic situations.

EN :

In the first part of this article, Me Foriers explains the Belgium Laws on collective procedures and the peculiar and interesting efforts of the Bankruptcy Courts to detect the legal signals of a failing enterprise while it is still possible to avoid bankruptcy as well as the means used to redress the situation.

In the second part, the author discusses the professional liability of the banking institution when a line of credit is granted or refused to an ailing enterprise. On this last aspect, Belgium Law is similar to French Law discussed in Professor's Gavalda article.

EN :

On September the 28^th 1981, the Supreme Court of Canada made public its opinion as to the constitutionaly of the Federal government's plan to repatriate and amend the B.N.A. Act.

Modifications affecting provincial powers require, according to convention, the existance of which is recognized by six of the Judges, a certain degree of provincial consensus. The federal projet, contested by eight of the ten provinces, was therefore considered unconstitutional by a majority of the Judges.

The Court mentioned furthermore that the federal plan, should it become law, would impinge upon the distribution of powers set forth in the B.N.A. Act. Seven of the nine Judges so deciding declared, on the other hand, that the Senat and House of Commons' resolution pertaining to the plan of repatriation and amendement was perfectly legal and that the British Parliament was, in law, the only authorized body to bring about the changes sought by said plan.

EN :

The following comment is an attempt to encompass the main features of each trend underlying the Court's opinions on matters submitted and decided.

According to the author, the members of the bench were at odds on 1° how broad the consensus had to be amongst the provinces whose consent to the federal scheme was at issue; 2° the proper finality envisaged by the federal plan ; 3° the choice of the competent deciding authority.

EN :

In this article, the author studies the reasons that led the legislator to amend, in 1861, a law adopted in 1859 in order to specify that the claim of the holder of a bill of lading or of a warehouse receitpt has priority over the claim of any unpaid vendor. The study is particularly relevant due to the fact that section 179 of the actual Bank Act is directly derivated from the 1861 amendment without any significant modification.

The study of the rights held by the pledger and the unpaid vendor at the time when the legislator adopted the above mentioned amendmend leads the author to conclusions as to the reasons that made this amendment necessary, as well as to the significance of section 179 in the Bank Act.

EN :

The Quebec Charter of Human Rights and Freedoms, L.R.Q.. c. C-12, introduces a new concept among the reasons for which discrimination is forbidden : social condition. Nowhere else in Canada is there given this explicit meaning to the right to equality.

Courts appear reluctant to give their proper signification to the words « social condition ». They prefer to rely on the better known expression of « social origin ».

The authors of the following comments bel eve that social condition must mean something specific, situated somewhere between social origin and the general right to equality clause.

EN :

In this article, the author asks himself whether it would be permissible for the Quebec Legislature to implement a full and complete initiative and referendum scheme, thereby giving to the people the means to enact their own laws. And the answer brought about is in the affirmative.

The author reaches that conclusion, first, by looking at the concepts of sovereignty in the state, legislative supremacy and parliamentary sovereignty. The second step is related to the analysis of the power attributed to the Legislature to modify its own constitution. The author assumes that this large power of legislation coupled with the principle of legislative supremacy should be sufficient to make a court of justice sustain the constitutional validity of the legislative implementation of a complete initiative and referendum process.

But some exceptions are made to that large and supreme legislative power. The « Office of Lieutenant Governor », the idea of making the Legislature the sole legislative organ in the state, the principles of representative democracy and responsible government, and the impossibility of binding the Legislature's future course of action are among the exceptions discussed in this article.

Finally, the author urges the reader to take a new look at the case-law on the subject keeping in mind that traditonal values of government are not stuck in concrete: The B.N.A. Act, has it been recognized, has to keep up with today's reality. Direct democracy may be part of this reality.

EN :

The English origin of the law in the Common law jurisdictions in Canada makes it mandatory to study common law and English statutory law. It is through those that we can follow the development of a family property law in English Canada. Starting from an individualistic view of the spouses' property, we shall witness the emergence of the idea of « family assets » which has been « enshrined » in recent legislation.

The law of Québec has evolved differently. Though of Trench origin, it has not kept as near its mother-country as its neighbour's has done with English law. Turthermore, due to its civilian character, its principles of private law are to be found in the Civil Code. This favours a different approach. That is why we will generally confine our study to those rules which are to be found in the Code civil du Bas-Canada and to the newly adopted Code civil du Québec. We will see what has become of the original community of property and compare the present law of Québec with recent legislation in English Canada.

EN :

This article is a treatment of the decisions of courts of arbitration principally in the province of Quebec, with respect to grievances and problems which occur in regulating the annual vacation of employees. There exists three main problem areas. The first consists of the determination of the duration of the annual vacation and necessitates a study of the definition of the « service » notion. The second, concerns the remuneration to which the employee is entitled for such holidays. And lastly, is the difficulty which occurs when there is a conflict between the employer and the employee as to the period during which the annual vacation may be taken.

EN :

The prohibition of an employer to require the knowledge of a language other than French as condition of employment, enacted by section 46 of the Charter of the French Language, can be dismissed when the nature of the duties requires the knowledge of another language. The burden of proof however is on the employer. Exceptionnally, the Charter has granted the Office de la langue française a quasi-judiciary power « to decide any dispute » concerning this requirement. This article deals with the first decisions pronounced which specify accessibility to the above procedure (Part one) and define criteria concerning the knowledge of another language (Part two).

EN :

The Power Contract signed in 1969 between Churchill Falls (Labrador) Corporation Limited and Hydro-Québec was the result of protracted negotiations between the parties which lasted six years. It became the cornerstone of a complex financial arrangement to secure a loan which was at the time the largest private placement effected in the United States of America to provide the funds required for the construction of the Churchill Falls Plant terminated in 1976 at a cost of approximately a billion dollars.

This long term contract which had led Premier Smallwood to exclaim : « Glory Hallelujah » when he had heard that the deal had been agreed upon started to be looked at in much a different light by Newfoundland following the rise in the cost of energy resulting from the increases in the price of oil demanded by OPEC. It became the nub of several Court cases instituted in the Newfoundland and Québec Courts.

This article is in substance the text of a conference given by the author to the lawyers and notaries of the Ministry of Justice of Québec during the Fall of 1981. It outlines the historical events which led to the negotiations and the signing of a Letter of Intent in 1966 followed by the Power Contract in 1969 and details the events leading to the institution in September 1976 of an action before the Supreme Court of Newfoundland by the Attorney General of that province against CFLCo and Hydro-Québec for a declaration that 800 megawatts of power from Churchill Falls may be recalled, to the institution by Hydro-Québec of a declaratory action in the Québec Courts against CFLCo and the other interested parties, including the Attorney General of Newfoundland, to have certain clauses of the Power Contract interpreted and finally to the adoption in 1980 by the Newfoundland Legislature of The Upper Churchill Water Rights Reversion Act and its reference to the Court of Appeal of Newfoundland to rule on its constitutional validity.