不良研究所

不良研究所.CA / Paul-Andr茅 Cr茅peau Centre for Private and Comparative Law / Research / Canadian Comparative Law

Period V: 1980-2000

Probing Jean Coutu Group (PJC) v Canada (Attorney General) and Canada (Attorney General) v Fairmont Hotels Inc

Probing Lac d鈥橝miante du Qu茅bec Lt茅e v 2858-0702 Qu茅bec Inc and Globe and Mail v Canada (Attorney General)

Probing Jean Coutu Group (PJC) v Canada (Attorney General) and Canada (Attorney General) v Fairmont Hotels Inc

By Joseph Ho, 2L, Faculty of Law, 不良研究所

Jean Coutu Group (PJC) v Canada (Attorney General), a Quebec case, and Canada (Attorney General) v Fairmont Hotels Inc, an Ontario case, are companion cases that merit a comparative analysis because of their convergence in outcome despite arising from different legal traditions.1 Both cases centre upon disputes over contractual interpretation in the tax context. In two 7:2 split decisions, the Supreme Court held that Jean Coutu and Fairmont could not amend the formal text of their agreements to achieve tax neutrality. In Jean Coutu, a civil law case, Justice Wagner penned the majority opinion and Justice C么t茅 the dissent. They both sought comparisons with the common law in their opinions. In Fairmont, a common law case, Justice Brown wrote the majority opinion and Justice Abella the dissent. Both referred to the civil law in their opinions. Although the majority and the dissenting opinions in both cases drew from the other legal tradition in their reasonings, a closer reading shows that they did not adopt identical approaches to Canadian comparative law.

With similar legal questions in the same context and with legal tradition being the key variable between them, the two cases offer a unique opportunity to examine the broad spectrum of approaches to Canadian comparative law in judicial reasoning. The first section briefly presents the facts and the procedural history of the cases. The second section compares Justice Wagner and Justice Brown鈥檚 majority opinions. The third section similarly compares Justice C么t茅 and Justice Abella鈥檚 dissenting opinions. Through this comparative analysis, the case probe illustrates how the judges鈥 comparative approaches reflect differing views of the Supreme Court鈥檚 role as a 鈥渂ijural institution.鈥2

The issue in Jean Coutu is whether Jean Coutu Group鈥檚 (PJC Canada) general intention to achieve tax neutrality was sufficient for the court to authorize modifying the formal text of an agreement. PJC Canada鈥檚 subsidiary (PJC USA) acquired pharmacies in the US in 2004. PJC Canada鈥檚 professional advisors recommended a specific transactional scheme with PJC USA, intending to neutralize the acquisition鈥檚 exchange rate fluctuation effects without adverse tax consequences. In 2010, the Canada Revenue Agency (CRA) found that the executed scheme triggered tax liability that PJC Canada鈥檚 advisors had not foreseen, despite succeeding in neutralizing exchange rate fluctuation effects. PJC Canada filed a motion to correct the documents recording these transactions to avoid the unintended tax liability. The Superior Court granted the motion. The Court of Appeal reversed the decision, finding that the intention for the transactions to be tax-neutral was 鈥渋nsufficiently determinate鈥 to constitute the object of a valid contract that would allow such modification.3Fairmont Hotels Inc. asked the court to exercise its equitable jurisdiction to rectify legal instruments that recorded a financing arrangement between itself and Legacy Hotels to avoid an unexpected tax liability. The parties entered into the arrangement with the intention of achieving tax neutrality in 2002鈥2003. In 2007, Fairmont complied with Legacy鈥檚 request to terminate the arrangement without realizing that it had omitted to protect its subsidiaries from tax exposure. As a result, Fairmont incurred an unanticipated tax liability that the CRA discovered in an audit. Both the Superior Court and the Court of Appeal found that the parties鈥 continuing intention of tax neutrality was a sufficient basis for rectification.

The Supreme Court found in both cases that the parties erred in their choices of transactional schemes, not in recording what transactions were executed in their legal documents. They wrongly believed that their chosen schemes would attain tax neutrality. This error did not entitle them to the rectification remedy. The court relied on the principles of contract formation and requirements for judicial correction of contractual documents that Justice LeBel articulated in Quebec (Agence du revenue) v Services Environnementaux AES inc, a previous case in which taxpayers similarly sought amendments to contractual documents to prevent the imposition of unanticipated tax.4 However, it also distinguished the two cases from AES. It found that the two cases were precisely the type of retroactive tax planning that Justice LeBel had warned against, in which such amendment should not be permitted given the lack of 鈥渁 more precise and more clearly defined object.鈥5

Justice Brown in Fairmont and Justice Wagner in Jean Coutu both described 鈥渃onvergence鈥 between the two cases as 鈥渄esirable,鈥 especially in the tax context.6 Some have described the two cases as upsetting the 鈥渂alance between the competing policy objectives of preventing retroactive tax planning and relieving taxpayers from the effects of inadvertent mistakes.鈥7 Functionalists who focus entirely 鈥渙n the outcomes of judicial decisions rather than on the means deployed to justify those decisions鈥 would view this 鈥渃onvergence鈥 as primarily driven by concerns over fiscal fairness.8 However, a careful study of the two opinions reveals that the two judges were not describing the same 鈥渃onvergence.鈥 This difference points to distinct approaches in Canadian comparative law that are not explained by the fiscal policy perspective.

Indeed, judges have often employed a comparative approach to point out a convergence between the common law and the civil law. For example, in Pauz茅 v Gauvin, a Quebec case on the severability of contracts, Justice Taschereau used comparative legal reasoning to illustrate that the same legal principles relevant to this civil law case existed in both legal traditions. 9 Justice Strong drew on French and English laws to support his position in a case on insurance policy.10 Justice Fauteux compared the two legal traditions to voice his dissent in Minister of National Revenue v Smith et al, a case on estates and succession.11 On the other hand, Justice Mignault and Justice Brodeur, staunchly 鈥渕onojural,鈥 rejected any comparative approaches even when the two legal traditions appeared to converge.12

In Jean Coutu, Justice Wagner stated that 鈥渢he natural convergence in principles and outcomes [鈥 is generally desirable鈥 [Emphasis added].13 Justice Brown, however, remarked that 鈥淸t]his convergence is undoubtedly desirable,鈥 referring to the two cases 鈥渁rriving at that same conclusion.鈥14 Although the two judges refer to each other in their respective reasoning, this subtle deviation in wording suggests different attitudes to the comparative approach. This section first illustrates how the two decisions are largely rooted in their respective legal traditions, despite comparing with the other legal tradition. It then points out three aspects where Justice Wagner鈥檚 reasoning differ from Justice Brown鈥檚.

In Fairmont, Justice Brown indicated that 鈥渆ach legal system arriv[ed] at the same conclusion via different paths.鈥15 His reasoning centred on the equitable doctrine of rectification. Finding that the parties鈥 intention to achieve tax neutrality was not sufficiently 鈥渄efinite and ascertainable,鈥 he held that they were not entitled to relief.16 Significant portions of his reasoning focused on Canada (Attorney General) v Juliar, the leading case on rectification, which had considerably enlarged its availability, prior to Fairmont.17 He ultimately overturned Juliar and 鈥渂rought the remedy back to what had originally been its scope.鈥18

On the other hand, Justice Wagner鈥檚 reasoning in Jean Coutu, was rooted in the civil law. He relied heavily on Justice LeBel鈥檚 analysis in AES, as well as the basic principle of contractual interpretation in civil law, according to which 鈥渢he common intention of the parties rather than adherence to the literal meaning of the words鈥 is critical.19 Referring to the contractual 鈥渙bject鈥 requirement of art. 1412 CCQ, he held that PJC Canada鈥檚 鈥済eneral intention of tax neutrality cannot form the object of a contract [鈥 because it is insufficiently precise.鈥20 Thus, the parties had no basis to seek contract modification. Judicial correction of contractual documents in the two legal traditions 鈥淸b]oth ultimately have the same purpose: to ascertain that the true agreement between the contracting parties is accurately expressed in the written instruments.鈥21 However, the common law is 鈥渃oncerned with correcting the document鈥 and the civil law is 鈥渇ocus[ed] on its interpretation.鈥22 The two judges鈥 reasonings reflect these 鈥渄ifferent paths.鈥23 From this perspective, Justice Wagner and Justice Brown are similarly 鈥渕onojural.鈥24

While this 鈥渃onvergence鈥 between the legal traditions may be 鈥渄esirable鈥 in the tax context, Justice Brown did not find it necessary nor inevitable. This view is perhaps most apparent in a recent tax case decided after Jean Coutu and Fairmont, Canada (Attorney General) v Collins Family Trust, in which the respondents sought rescission of certain transactions to prevent the imposition of unanticipated tax liability.25 Relying on both Fairmont and Jean Coutu in this case from British Columbia, Justice Brown significantly narrowed the equitable remedy of rescission. The decision 鈥渆ntrenched a stark divide between Canada鈥檚 common law provinces and Quebec鈥 where the Civil Code 鈥渁llows a court, on the application of a party, to 鈥榓nnul鈥 a contract based on an 鈥榚rror,鈥 including a misunderstanding of its tax consequences.鈥26

Justice Wagner had acknowledged in Jean Coutu that rectification in the two legal traditions will not 鈥渁lways lead to the same result鈥 particularly given 鈥渧ariations in the facts from case to case.鈥27 The different outcomes between AES, on the one hand, and Fairmont and Jean Coutu, on the other, demonstrate this point. Nevertheless, he found that the two legal traditions 鈥渟hare similar principles.鈥28 In fact, to further illustrate that the 鈥渘atural consistency鈥 between the two legal traditions is 鈥渄esirable,鈥 he showed that both Fairmont and Jean Coutu would attain the same results if they were adjudicated in the civil law and the common law respectively.29

Justice Brown鈥檚 鈥渃onvergence鈥 almost seemed fortuitous, while Justice Wagner described a greater degree of convergence, one in both 鈥減rinciples and outcomes.鈥30 Put differently, Justice Brown focused more on each tradition 鈥渕aintain[ing] its distinctive character,鈥 whereas Justice Wagner saw the Supreme Court鈥檚 role as 鈥渆nsur[ing] that the common law and the civil law would evolve side by side.鈥31 鈥淐onvergence鈥 appears to be an objective for Justice Wagner, but only a beneficial side effect for Justice Brown.

Justice Wagner鈥檚 discussion on tax policy considerations further distinguishes the two judges鈥 reasonings. He was explicit in noting that fiscal fairness gave additional support to his conclusions, finding that allowing rectification 鈥渨ould amount to retroactive tax planning,鈥 setting 鈥渁n undesirable precedent.鈥32 Such policy considerations apply across Canada and could lead to the kind of 鈥渦nification鈥 championed by Justice Taschereau who 鈥渂elieved in standardizing and unifying the laws across Canada, and saw the Court as the instrument of bringing the civil and common law in line with each other.鈥33 Justice Brown鈥檚 reasoning only raised the concern over retroactive tax planning in passing, but did not engage in an extensive discussion on policy considerations.34

Last, Justice Wagner drew a parallel between Bhasin v Hrynew and Jean Coutu, suggesting that 鈥渢he case of good faith [鈥 is another example of the two legal systems achieving convergence despite their distinct origins and principles.鈥35 In Bhasin, Justice Cromwell recognized 鈥渁 general organizing principle of good faith鈥 in the common law, making an 鈥渋ncremental step鈥 to address an 鈥渦nsettled and incoherent body of law.鈥36 He drew on the civil law as a source of 鈥渋nspiration鈥 both to illustrate that the common law鈥檚 approach was 鈥渙ut of step with the civil law of Quebec鈥 and 鈥渢o take comfort from experience of the civil law鈥 that this change would not pose problems.37 Justice Wagner鈥檚 comparison between the two cases is curious as he did not draw on the common law to develop the civil law in Jean Coutu. The way that Bhasin and Jean Coutu achieved 鈥渃onvergence鈥 between the legal traditions differed.

Justice Brown鈥檚 reasoning in Fairmont certainly did not draw 鈥渋nspiration鈥 from the civil law. In both CM Callow Inc v Zollinger and Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, Justice Brown was particularly hostile to Justice Kasirer鈥檚 comparative approach.38 Drawing extensively from the civil law, Justice Kasirer took the Bhasin decision further and expanded the duty of honest performance in Callow and Wastech. It is difficult to imagine that Justice Brown would agree with the parallel that Justice Wagner drew between Jean Coutu and Bhasin.

Despite the same outcome shared between Jean Coutu and Fairmont, the role of Canadian comparative law in Justice Wagner and Justice Brown鈥檚 reasonings differed. Justice Wagner鈥檚 comparative law discussion in his reasoning in Jean Coutu was much lengthier than Justice Brown鈥檚 in Fairmont. More importantly, however, they differed in how the comparative approach was used. Justice Wagner鈥檚 position in Jean Coutu echoes Chief Justice Laskin鈥檚 in Guardian v Victoria Tire Sales, also a case on contract rectification.39 Chief Justice Laskin found that Guardian, a Quebec case, 鈥渞aises an issue which is not peculiar to the civil law of Quebec and [鈥 the same result [鈥 would follow at common law.鈥40 Justice Brown, on the other hand, briefly pointed out a 鈥渃onvergence鈥 between the two legal traditions that almost seems happenstance in Fairmont. This difference 鈥渆mbodies鈥 their beliefs in the role of Canadian comparative law in judicial reasoning. Their reasoning reflects their differing views of the Supreme Court鈥檚 role in Canada鈥檚 bijural environment.41 Justice Wagner鈥檚 reasoning suggests a more active role, one that 鈥渕anages鈥 the interaction between these two legal traditions, while Justice Brown鈥檚 reasoning suggests a more passive role, one that 鈥渙bserves鈥 how these traditions each evolve, regardless of whether they converge.

The dissenting opinions in the two cases similarly reveal different styles of reasoning, characterized by their distinct approaches to comparative law. Justice Abella in Fairmont and Justice C么t茅 in Jean Coutu both began their analyses with the respective legal traditions from which the case arose. Justice Abella examined the equitable remedy of rectification using Canadian common law jurisprudence and doctrinal sources in Fairmont. Justice C么t茅 relied extensively on AES and civil law doctrine to analyze the meaning of 鈥渃ommon intention鈥 and 鈥渙bject of the contract鈥 in the civil law in Jean Coutu.

Explicitly comparing the two legal traditions, Justice Abella drew on AES, highlighting that the requirements for rectification in both legal traditions are 鈥渇unctionally equivalent鈥 and 鈥渃learly based on analogous principles.鈥42 Driven by different interpretations of the facts, different understanding of the substantive law, and perhaps different views on fiscal fairness, Justice Abella and Justice Wagner arrived at opposite outcomes in Fairmont and Jean Coutu respectively. Nevertheless, they took similar approaches to comparative law. Justice Abella鈥檚 references to AES and Justice Wagner鈥檚 references to Fairmont鈥攖heir 鈥渞each鈥 into the other legal tradition鈥攚ere both important in the 鈥減ath鈥 they took to arrive at their respective conclusions. She found that 鈥渢here is no principled basis in either the common or civil law for a stricter standard in the tax context.鈥43 In favouring a convergence of outcomes between Fairmont, Jean Coutu, and AES, Justice Abella similarly resonated with the 鈥渦nification鈥 trend of the 鈥淭aschereau years.鈥44

In comparison, comparative law was much less central to Justice C么t茅鈥檚 reasoning in Jean Coutu. Her analysis largely stayed within the confines of the civil law framework. While she agreed with Justice Wagner and Justice Brown that 鈥渃onvergence between Quebec civil law and the common law of the other province is desirable from a tax policy perspective,鈥 her conclusion was not driven by a goal to attain this 鈥渃onvergence.鈥45 She found it 鈥渢roubling鈥 that the majority鈥檚 decisions in Fairmont and Jean Coutu would 鈥渃onsistently鈥 deprive Canadians across all jurisdictions of the rectification remedy. She read Justice Wagner鈥檚 reasoning as 鈥渋mport[ing] this limitation into the civil law鈥 from the common law, one that resulted from Justice Brown鈥檚 decision in Fairmont.46 She found that the majority鈥檚 decisions in the two cases led to a 鈥渃onvergence鈥 that is 鈥渇ar from 鈥榥atural.鈥欌47 Implicit in this reading is that even if she had agreed with Justice Brown鈥檚 reasoning in the Fairmont decision (which she did not), Justice Wagner鈥檚 reasoning in Jean Coutu still would not stand. She made no assessment on the common law. She disagreed with Justice Wagner in Jean Coutu because she found his analysis inconsistent with Quebec civil law. It was a disagreement that laid entirely within the civil law framework. The convergence of outcomes between Fairmont and Jean Coutu obscures the important differences between the reasoning of the four judges in how they draw on the other legal tradition. An analysis that focuses entirely on the outcomes rather than the 鈥減ath鈥 taken in the judges鈥 reasonings, as functionalists would do, ignores the important messages that these differences tell. This comparative analysis between Justice Wagner, Justice Brown, Justice C么t茅, and Justice Abella鈥檚 opinions in Fairmont and Jean Coutu illustrates distinct approaches to comparative law, each positioned differently on the 鈥渕onjurality/polyjurality鈥 spectrum.48

Probing Lac d鈥橝miante du Qu茅bec Lt茅e v 2858-0702 Qu茅bec Inc and Globe and Mail v Canada (Attorney General)

By Joseph Ho, 2L, Faculty of Law, 不良研究所

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A comparative analysis of Lac d鈥橝miante du Qu茅bec Lt茅e v 2858-0702 Qu茅bec Inc and Globe and Mail v Canada (Attorney General) is instructive for exploring the contours of Canadian comparative law.1 Both cases, arising from Quebec, centered upon whether certain common law rules of confidentiality and privilege apply in the civil law context. Writing for a unanimous court in both cases, Justice LeBel drew on the common law in distinct ways. However, his approaches were not diametrically opposed to each other.

The first section outlines the comparative law approach used in the two cases separately to illustrate their divergence from each other. It also identifies how they each echo diverse and often conflicting views on Canadian comparative law from other Supreme Court judges. The second section demonstrates the convergence between the two cases. A rich and continuous dialogue over the place of Canadian comparative law in judicial reasoning emerges from this comparative analysis. Patrick Glenn characterizes legal traditions as dynamic sites of conversation and contestation, describing them as 鈥渂ran-tubs鈥 that expand when they interact with each other. 2 The case probe demonstrates that the spectrum of approaches to Canadian comparative law necessarily expands each time judges refer to another legal tradition in their reasoning, much like how a prism refracts light, aligning with Glenn鈥檚 characterization.

At issue in Lac d鈥橝miante is whether the rule of confidentiality concerning evidence or information obtained at examinations on discovery applies in Quebec despite the Code of Civil Procedure鈥檚 silence. In response to the appellant鈥檚 document request during the examination, the respondent filed a motion to require that the documents remain confidential. The Superior Court dismissed the motion for being contrary to the open court principle. The Court of Appeal reversed the judgment, concluding that the rule of confidentiality applied in Quebec.

Justice LeBel appears to have amply considered Judge Biron鈥檚 strong dissent at the Court of Appeal. Highlighting the dangers of importing a common law rule without thoroughly examining the state of the law, Judge Biron found the majority鈥檚 conclusion inconsistent with [translation] 鈥渢he tradition and the spirit of the Code of Civil Procedure.鈥3 In contrast, Judge Mailhot supported her reliance on Ontario and English jurisprudence with the common law origins of the Code of Civil Procedure provisions regarding examination on discovery.4 She believed the advantages that the rule brings, as seen in common law jurisdictions, justified its adoption in Quebec.5 Judge Fish similarly stated that the Code of Civil Procedure was not 鈥渁 hermetic system which precludes [鈥 applying common law concepts.鈥6 He found that the rule aligned with civil procedure developments in Quebec and the principles supporting an individual鈥檚 right to privacy in the Civil Code of Quebec and the Quebec Charter of Human Rights and Freedoms.7 Although Justice LeBel ultimately held that the confidentiality rule applied in Quebec, he was careful not to arrive at this conclusion by directly importing the rule from the common law. Writing jointly with Justice L鈥橦eureux-Dub茅 in 笔谤耻诲鈥檋辞尘尘别 v 笔谤耻诲鈥檋辞尘尘别 a year after Lac d鈥橝miante, he had indeed reiterated that 鈥淸i]t would be extremely unwise to import, holus bolus, legal concepts that were developed in another system of law without first determining whether they are compatible.鈥8

Three aspects of Justice LeBel鈥檚 reasoning in Lac d鈥橝miante mark his cautious approach to Canadian comparative law. First, he emphasized that 鈥淸t]he codified law is paramount鈥 in Quebec, reaffirming that 鈥渢he Civil Code comprises the jus commune of Quebec,鈥 as Justice Gonthier had remarked in Dor茅 v Verdun.9 The distinctive nature of Quebec civil law requires courts to 鈥渇ind their latitude for interpreting and developing the law within the legal framework.鈥10 Consistent with his approach in other cases such as Gilles, ABB, and AES, Justice LeBel鈥檚 analysis in Lac d'Amiante started with the Quebec civil law, stayed within the confines of the civil law, and ended with the civil law.11 Justice Mignault held the same view that judicial analysis of a civil law case must stay within the civil law framework, criticizing any resort to the common law for matters arising from Quebec, whose legal system was [translation] 鈥渃omplete in itself.鈥12 Likewise, Justice Brown opposed 鈥渋ntroducing external legal concepts鈥 that could 鈥渁ffect[] the coherence and stability鈥 of a distinct legal tradition.13 Although much more open to referencing the common law in civil law cases, Justice Gonthier nonetheless stressed that 鈥渢he civil law is a complete system in itself.鈥14

Second, justice LeBel described the Code as 鈥減aramount鈥; however, he did not feel bound by the provisions as the confidentiality rule for examinations on discovery was clearly not found in the Code.15 At the same time, he was careful to stay within the confines of the Quebec civil law framework. What falls within these confines, however, is where he departed from Justice Mignault鈥檚 鈥渕onojurality.鈥16 Acknowledging that 鈥淸t]he rules of Quebec civil procedure themselves reveal mixed nature of their sources,鈥 he distinguished civil trial in Quebec 鈥渇rom the continental European model.鈥17 Changes in the procedural framework of examinations on discovery over time in Quebec resulted in the convergence between Quebec civil law and the common law. 18 The implied rule of confidentiality is, therefore, 鈥渉ome-grown鈥 from this evolution rather than a common law import. Several legal scholars have pointed out that the Code鈥檚 鈥渋ntellectual pre-eminence鈥 does not necessarily oust other sources of law, derived from Quebec civil law鈥檚 鈥渉istorical and material origins.鈥19 Justice LeBel鈥檚 approach requires 鈥渢he jurist to 鈥榢now history鈥 to understand the 鈥榮ystem鈥 within which he/she operates鈥 and to 鈥渞emain open to sources of law which transcend the perimeters of the Code.鈥20 It is far from Justice Taschereau鈥檚 鈥渘omadic鈥 method of referencing 鈥渁rcane and exotic sources,鈥 but it certainly pushes beyond the written word.21

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Third, Justice LeBel applied a 鈥渃ivil law method of analysis鈥 notwithstanding the convergence between Quebec civil law and the common law regarding discovery.22 He was emphatic that Quebec courts 鈥渄o not have the same creative power in relation to civil procedure as a common law court.鈥23 Nevertheless, by examining provisions in the Civil Code and the Quebec Charter that express the principles regarding privacy protection, he deductively concluded that the rule of confidentiality conformed with the spirit of the civil law.24 This principle-based reasoning resonates with Justice Taschereau and Justice Fauteux鈥檚 rejection of imposing common law principles in Quebec in Lamb v Benoit et al, a civil law case on police action civil liability.25 Justice LeBel鈥檚 appeal to what Broodman, Brierley, and Macdonald describe as 鈥渟upereminent principles鈥 illustrates a key point: while 鈥渢he civil law is a complete system in itself,鈥 the Civil Code 鈥渋s not and cannot be self-contained.鈥26

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Guided by a concern over the integrity of the civil law, Justice LeBel referenced the common law sparingly in Lac d鈥橝miante. Judge Fish, in his Court of Appeal reasoning, found that the Canadian common law provinces鈥 acceptance of the rule of confidentiality gave additional support for its adoption in Quebec.27 On the contrary, the common law provinces鈥 experiences had no incidence on Justice LeBel鈥檚 reasoning. To borrow the words of Justice Cromwell, who drew from the civil law to justify a change in the common law in a later case, Justice LeBel did not 鈥渢ake comfort from experience鈥 of the common law. Rather, he 鈥渢ook comfort鈥 in the rule鈥檚 compatibility with Quebec civil law鈥檚 development and its principles.28 He discussed the common law only to illustrate parallels between the two legal traditions.29 He approached Quebec civil law holistically and was far less preoccupied as Justice Mignault over the [translation] 鈥減urity of the civil law,鈥 who rejected any references to the common law.30听In Globe and Mail, the Supreme Court assessed whether journalists were protected by journalist-source privilege from revealing the identity of confidential sources in the context of civil litigation in Quebec. A Globe and Mail journalist published articles alleging Groupe Polygone鈥檚 misuse of public funds in a high-profile federal government programme based on information obtained from a confidential source. Counsel for the newspaper objected to questions posed to the journalist when he testified on a motion related to these allegations, arguing that the answers would breach journalist-source privilege. Quebec civil law did not explicitly recognize such privilege. The Superior Court refused to recognize the existence of this privilege.

The parties all considered the role of Canadian comparative law in their submissions. The Globe and Mail argued for a class-based journalist-source privilege grounded in the constitutional right to the freedom of the press.31 In the alternative, it proposed importing the common law Wigmore doctrine to determine whether the privilege existed in Quebec on a case- by-case basis, modified to reflect values in the Quebec Charter.32 A law of evidence doctrine, the Wigmore doctrine requires four criteria to be met for communication to be considered privileged. Group Polygone similarly advocated for applying the Wigmore doctrine or developing a similar test aligned with the civil law tradition.33 The Attorney General of Canada, however, rejected drawing from the common law, insisting on analyzing the issue 鈥渁ccording to civil law rules.鈥34 Justice LeBel remitted the matter to the Superior Court for consideration, instructing it to apply the Wigmore criteria to determine whether a journalist-source privilege ought to be recognized in this case.35

The key divergence between Lac d鈥橝miante and Globe and Mail lies in Justice LeBel鈥檚 explicit recognition that 鈥淸a] gap in the codified law exists鈥 in the latter.36 Although the Code of Civil Procedure is equally silent about the rule of confidentiality in examinations on discovery as it is with journalist-source privilege, nowhere in Lac d鈥橝miante did he acknowledge such 鈥済ap.鈥 Rather, he presented the rule as a natural extension of Quebec civil procedure in Lac d鈥橝miante. Rosalie Jukier attributes this difference partially to the fact that 鈥渢here were, in Lac d鈥橝miante, ample Quebec civilian principles to support the confidentiality of discovery and there was therefore less need to resort to the common law for authoritative precedent.鈥37 Justice LeBel stated in Globe and Mail that 鈥渢he codification of civil procedure does not mean that civil procedure [鈥 is completely detached from the common law model.鈥38 In drawing a parallel with police-informer privilege, he implied that an underlying body of common law rules applied in Quebec unless explicitly displaced by statutory provisions.39 He found that the 鈥渞esidual role for common law legal principles in the development of this part of Quebec law鈥 justified the adoption of the Wigmore doctrine.40 It is, however, unclear what falls within this body of common law rules that have continued effect in Quebec.

Justice LeBel鈥檚 resort to the common law in Globe and Mail, an approach that he went at lengths to avoid in Lac d鈥橝miante, echoes other Supreme Court judge鈥檚 positions. In Canadian Pacific Ry Co v Robinson, Chief Justice Ritchie, Justice Strong, and Justice Taschereau all recognized common law authority in interpreting a civil law article on moral damages with English origins.41 Justice Strong and Justice Taschereau both took care in demonstrating that their interpretation also aligned with French and Quebec law.42 Similarly, Justice Anglin, in a Quebec case that dealt with laws emanating from English law, conceded that 鈥渋n the absence of any jurisprudence or established practice to the contrary, the courts of Quebec might well accept and apply the English rule.鈥43 Justice Brown also endorsed 鈥渋ntroducing external legal concepts [鈥 to fill a gap where domestic law does not.鈥44

Justice LeBel towed a fine line between applying common law principles in Quebec civil law and ensuring the civil law鈥檚 integrity. On the one hand, he stated that 鈥渋t remains interesting and relevant to consider how the rule is evolving in the Canadian common law system, in order to frame an appropriate interpretation in the civil law system.鈥45 On the other hand, he described the test as a 鈥淲igmore-like framework鈥 and that its essence was the balancing exercise of competing rights regardless of an explicit or implicit reliance on the framework.46

First, Justice LeBel鈥檚 emphasis on the sources of law drove his analyses in both cases. Highlighting Quebec鈥檚 鈥渉ybrid legal tradition and culture,鈥 he examined both the French origins and the English influence on Quebec civil procedure.47 In both cases, he recognized a broader body of sources relevant to Quebec civil law while emphasizing the Civil Code as the 鈥渏us commune.鈥48 Indeed, Jukier points out that a key lesson from Justice LeBel鈥檚 approach is 鈥渢he importance of finding authority in the sources unique to the Civil Law and prioritizing those sources according to the civilian legal tradition and its spirit of codal interpretation.鈥49

However, Justice LeBel鈥檚 references to different sources in Lac d鈥橝miante and Globe and Mail also point to a key challenge: the difference between rules that originated from the common law and rules that evolved within the Quebec legal system under English influence is unclear. The former seems to justify directly importing the common law into the civil law, as in Globe and Mail, while the latter demanded a more circuitous route, as in Lac d鈥橝miante. To add further uncertainty, Justice LeBel discussed 鈥減ublic policy鈥 as an important rationale behind confidentiality rules in examinations on discovery and settlement in Globe and Mail, something that he did not address explicitly in Lac d鈥橝miante.50 Justice Wagner later reaffirmed settlement confidentiality as a common law import into the civil law.51 Perhaps this nuance regarding the sources of law is what Justice LeBel referred to when he said,鈥漑t]hese mixed origins are without doubt at the root of the semantic, if not conceptual problems that continue to affect this field of law.鈥52

Second, Justice LeBel was equally concerned about compatibility with 鈥渙verarching principles set out in the CCQ and the Quebec Charter鈥 in both cases.53 This concern accords with his consistently cautious approach to Canadian comparative law. In Vivendi Canada Inc v Dell Aniello, he similarly indicated that 鈥渢ests established in a common law context cannot necessarily be imported without adaptation into Quebec civil procedure.鈥54 While he imported the Wigmore doctrine with little adaptation in Globe and Mail, he analyzed its coherence with civil law principles in detail. Justice L鈥橦eureux-Dub茅 expressed similar views in a case also arising from Quebec civil procedure. Despite the mixed sources of Quebec civil procedure, she stated that 鈥淸t]he common law principles cannot simply be applied to these rules, in my opinion without first directly addressing the question of whether those principles are even compatible with the recipient law.鈥55

Last, the different nature of the rules in the two cases illustrate that Justice LeBel鈥檚 approaches were not contradictory. The rule of confidentiality adopted in Lac d鈥橝miante applies by default to all examinations on discovery. In Globe and Mail, Justice LeBel explicitly rejected a class-based privilege in favour of the Wigmore test that requires courts to assess on a case-by- case basis.56 This test is vested in the courts鈥 鈥渟econdary or interstitial function in defining procedure in Quebec.鈥57 Seen in this light, the rule in Lac d鈥橝miante is a more substantial shift in Quebec civil procedure that Justice LeBel felt could only be justified by assessing whether it was a natural progression from within the legal system.

The two cases, both in the context of Quebec civil procedure, offer abundant insights into why, when, and how a comparative perspective is used in judicial reasoning. Although both penned by Justice LeBel for unanimous courts, these opinions take different approaches to Canadian comparative law. The different factual circumstances of each case, the nature of the legal question, the lower court decisions, and the parties鈥 submissions all influenced how comparative approaches are used, expanding the spectrum of different positions of this comparative law prism. The two cases, nine years apart, are also set against different socio- political environments. While it is not the object of this commentary, Justice LeBel鈥檚 distinct style of reasoning perhaps also speak to different values of their respective times.

Footnotes听Jean Coutu Group (PJC) v Canada (Attorney General) and Canada (Attorney General) v Fairmont Hotels Inc

听

  1. See Jean Coutu Group (PJC) v Canada (Attorney General), 2016 SCC 55 [Jean Coutu]. See also听Canada (Attorney General) v Fairmont Hotels Inc, 2016 SCC 56 [Fairmont].
  2. See Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21 at para 55 [Supreme Court Reference]. 3 See Jean Coutu, supra note 1 at para 13
  3. See 2013 SCC 65 [AES]. See also Jean Coutu, supra note 1 at paras 17鈥25. See also Fairmont, supra note 1 at paras 81鈥84.
  1. See AES, supra note 4 at para 54. See also Jean Coutu, supra note 1 at para 21. See also Fairmont, supra note 1 at para 33.
  2. See Fairmont, supra note 1 at para 33. See also Jean Coutu, supra note 1 at para 52.
  3. Elie S Roth, Stephen S Ruby & Ryan Wolfe, 鈥淓quitable Remedies in Tax Matters: The Elusive Search for Relief,鈥 in Pooja Mihailovich & John Sorensen, eds, Tax Disputes in Canada: The Path Forward (Toronto: Canadian Tax Foundation, 2022).
  4. Catherine Valcke, 鈥淐omparing legal styles鈥 (2019) 15 Intl JL in Context 274 at 276 [Valcke, 鈥淪tyles鈥漖.
  5. See [1954] SCR 15 at 21, 1953 CanLII 65 (SCC).
  6. See Allen v Merchants Marine Insurance Company, (1888) 15 SCR 488 at 492, 1888 CanLII 41 (SCC).
  7. See [1960] SCR 477 at 490, 1960 CanLII 50.
  1. See David Howes, 鈥淔rom Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929鈥 (1987) 32 不良研究所 LJ 523 at 525 [Howes, 鈥淧olyjurality鈥漖.
  2. See Jean Coutu, supra note 1 at para 52. 14 See Fairmont, supra note 1 at para 33.
  1. See Fairmont, supra note 1 at para 33.
  2. Ibid at para 38.
  3. See (2000) 50 OR (3d) 728, 8 BLR (3d) 167 (ONCA) [Juliar].
  4. Angela Swan, Jakub Adamski, Annie Y Na, Canadian Contract Law, 4th ed (Markham: LexisNexis, 2018) at 8.402鈥8.403.
  5. See AES, supra note 4. See also Jean Coutu, supra note 1 at paras 17鈥18. See also Art 1425 CCQ. 20 See art 1412 CCQ. See also Jean Coutu, supra note 1 at para 23.
  6. See Jean Coutu, supra note 1 at para 44
  7. Ibid.
  1. See Fairmont, supra note 1 at para 33.
  2. Howes, 鈥淧olyjurality鈥, supra note 12.
  3. See 2022 SCC 26.
  4. Michael H Lubetsky et al, 鈥淐anada鈥檚 Top Court Decides Against Equitable Rescission in Collins Family Trust鈥 (21 June 2022), online: Davies Ward Phillips & Vineberg LLP, < https://>. 27 See Jean Coutu, supra note 1 at para 52.
  5. Ibid at para 5.
  6. Ibid at paras 48鈥50.
  7. See Jean Coutu, supra note 1 at para 52.
  8. Supreme Court Reference, supra note 2 at para 85. 32 Jean Coutu, supra note 1 at para 42
  1. Rosalie Jukier, 鈥淐anada鈥檚 Legal Traditions: Sources of Unification, Diversification, or Inspiration?鈥 (2018) 11:1 J Civil L Stud 75 at 81 [Jukier, 鈥淚nspiration鈥漖.
  2. See Fairmont, supra note 1 at para 33.
  3. See 2014 SCC 71 [Bhasin]. See also Jean Coutu, supra note 1 at para 5.
  4. Bhasin, supra note 35 at paras 92鈥93, 32.
  5. Ibid, at paras 32, 82. See also Jukier, 鈥淚nspiration鈥, supra note 28 at 100鈥101.
  6. See CM Callow Inc v Zollinger, 2020 SCC 45. See also Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7.
  7. 39 See [1979] 2 SCR 849, 108 DLR (3d) 283 [Guardian].
  8. Ibid at 852.
  9. Ibid at 276鈥277
  10. See Fairmont, supra note 1 at para 33.
  1. Ibid at para 84.
  2. See Jukier, 鈥淚nspiration鈥, supra note 28. 45 Jean Coutu, supra note 1 at para 91.
  1. Ibid at para 92.
  2. Ibid.
  3. See Howes, 鈥淧olyjurality鈥, supra note 12.

Footnotes Lac d鈥橝miante du Qu茅bec Lt茅e v 2858-0702 Qu茅bec Inc and Globe and Mail v Canada (Attorney General)

听

  1. See Lac d鈥橝miante du Qu茅bec Lt茅e v 2858-0702, 2001 SCC 51 [Lac d鈥橝miante]; see also Globe and Mail v Canada (Attorney General), 2010 SCC 41 [Globe and Mail].
  2. See H Patrick Glenn, Legal Traditions of the World, 5th ed (Oxford: Oxford University Press, 2014) at 34.
  3. See Lac d鈥檃miante du Qu茅bec Lt茅e v 2858-0702 Qu茅bec Inc, [1999] JQ no 1043 at paras 132, 134, [1999] RJQ 970 (QCCA) [Lac d鈥橝miante CA]
  4. Ibid at para 46.
  5. Ibid at para 44.
  6. Ibid at para 180.
  7. Ibid at paras 141鈥144, 150.
  1. 2002 SCC 85 at para 54 [笔谤耻诲鈥檋辞尘尘别].
  2. Lac d鈥橝miante, supra note 1 at paras 37, 40. Dor茅 v Verdun (City), [1997] 2 SCR 862 at para 15, 150 DLR (4th) 385.
  3. See Lac d鈥橝miante, supra note 1 at para 39.
  4. See Gilles E N茅ron Communication Marketing Inc v Chambre des notaires du Qu茅bec, 2004 SCC 53 at para 56 [Gilles]. See also ABB Inc v Domtar Inc, 2007 SCC 50 at para 1 [ABB]. See also Quebec (Agence du revenue) v Services Environnementaux AES inc, 2013 SCC 65 at para 55 [AES].
  5. Desrosiers v The King, [1920] 60 SCR 105 at 126, 55 DLR 120 [Desrosiers].
  6. See CM Callow Inc v Zollinger, 2020 SCC 45 at paras 160鈥163 [Callow].
  7. See Farber v Royal Trust Co, [1997] 1 SCR 846 at para 31, 145 DLR (4th) 1.
  8. See Lac d鈥橝miante, supra note 1 at para 37.
  9. See David Howes, 鈥淔rom Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929鈥 (1987) 32 不良研究所 LJ 523 at 525 [Howes, 鈥淧olyjurality鈥漖.
  10. See Lac d鈥橝miante, supra note 1 at paras 33鈥34.
  11. Ibid at paras 32, 56.
  12. See Martin Boodman, John E C Brierley & Roderick A Macdonald, Quebec civil law: an introduction to Quebec private law (Toronto: E Montgomery Publications, 1993) at paras 94, 108.
  1. David Howes, 鈥淔aultless Reasoning: Reconstructing the Foundations of Civil Responsibility in Quebec Since Codification鈥 (1991) 14:1 Dalhousie LJ 90 at 91鈥92.
  2. See Howes, 鈥淧olyjurality鈥, supra note 16 at 530, 535.
  3. Lac d鈥橝miante, supra note 1 at para 41.
  4. Ibid at paras 39.
  5. Ibid at para 68. See also Rosalie Jukier, 鈥淟a contribution du juge LeBel au droit judiciaire et 脿 la tradition civilste鈥 (2017) 94:3 R du B can 507 at 516 [Jukier, 鈥淟eBel鈥漖.
  6. See [1959] SCR 321 at 339, 363.
  7. See Broodman, Brierley & Macdonald, supra note 19 at para 104.
  8. Lac d鈥橝miante CA, supra note 3 at paras 194鈥196.
  9. Bhasin v Hrynew, 2014 SCC 71 at para 82.
  10. See Lac d鈥橝miante, supra note 1 at paras 57鈥60.
  11. 30 See Jukier, 鈥淟eBel,鈥 supra note 24 at 515鈥516.
  12. Globe and Mail v Canada (Attorney General), 2010 SCC 41 (Factum of the Appellant The Globe and Mail at para 41)
  1. Ibid at paras 73鈥74.
  2. Globe and Mail v Canada (Attorney General), 2010 SCC 41 (M茅moire de l鈥檌ntim茅e Le Groupe Polygone 脡diteurs Inc at paras 26, 97鈥101).
  3. Globe and Mail v Canada (Attorney General), 2010 SCC 41 (Factum of the Respondent the Attorney General of Canada at para 39).
  4. Globe and Mail, supra note 1 at paras 65, 70.
  5. Ibid at para 46.
  6. Jukier, 鈥淟eBel,鈥 supra note 24 at 514. 38 Globe and Mail, supra note 1 at para 30.
  7. 39 Ibid at para 52.
  8. 40 Ibid at para 55.
  9. 41 See (1887) 14 SCR 105 at 111, 116, and 124, 1887 CanLII 45 (SCC).
  10. 42 Ibid at 121, 127鈥131.
  1. Robert v Montreal Trust Co, [1918] 56 SCR 342 at 364, 41 DLR 173 (SCC).
  2. Callow, supra note 13 at para 163.
  3. Globe and Mail, supra note 1 at para 45.
  4. 46 Ibid at paras 53鈥54.
  5. 47 See Globe and Mail, supra note 1 at para 45. See also Lac d鈥橝miante, supra note 1 at para 32. 48 See Globe and Mail, supra note 1 at para 29. See also Lac d鈥橝miante, supra note 1 at para 40.
  6. 49 Jukier, 鈥淟eBel,鈥 supra note 24 at 516.
  7. See Globe and Mail, supra note 1 at para 81.
  1. See Union Carbide Canada Inc v Bombardier Inc, 2014 SCC 35 at para 36.
  2. Foster Wheeler Power Co v Soci茅t茅 intermunicipale de gestion et d鈥櫭﹍imination des d茅chets (SIGED) inc, 2004 SCC 18 at para 23.
  3. See Globe and Mail, supra note 1 at para 45. See also Lac d鈥橝miante, supra note 1 at paras 40鈥41.
  4. 54 2004 SCC 1 at para 48.
  5. Vid茅otron Lt茅e v Industries Microlec Produits 脡lectroniques Inc, [1992] 2 SCR 1065 at 1097, 96 DLR (4th) 376.
  6. 56 See Globe and Mail, supra note 1 at para 36.
  7. 57 See Lac d鈥橝miante, supra note 1 at para 37.

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