ÎÛÎÛČĘĘźÊÓÆ”

ÎÛÎÛČĘĘźÊÓÆ”.CA / Paul-AndrĂ© CrĂ©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’Amiante du QuĂ©bec LtĂ©e v 2858-0702 QuĂ©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, ÎÛÎÛČĘĘźÊÓÆ” University

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 CÎté 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’s majority opinions. The third section similarly compares Justice CĂŽtĂ© and Justice Abella’s dissenting opinions. Through this comparative analysis, the case probe illustrates how the judges’ comparative approaches reflect differing views of the Supreme Court’s role as a “bijural institution.”2

The issue in Jean Coutu is whether Jean Coutu Group’s (PJC Canada) general intention to achieve tax neutrality was sufficient for the court to authorize modifying the formal text of an agreement. PJC Canada’s subsidiary (PJC USA) acquired pharmacies in the US in 2004. PJC Canada’s professional advisors recommended a specific transactional scheme with PJC USA, intending to neutralize the acquisition’s 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’s 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 “insufficiently determinate” 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 2002–2003. In 2007, Fairmont complied with Legacy’s 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’ 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 “a more precise and more clearly defined object.”5

Justice Brown in Fairmont and Justice Wagner in Jean Coutu both described “convergence” between the two cases as “desirable,” especially in the tax context.6 Some have described the two cases as upsetting the “balance between the competing policy objectives of preventing retroactive tax planning and relieving taxpayers from the effects of inadvertent mistakes.”7 Functionalists who focus entirely “on the outcomes of judicial decisions rather than on the means deployed to justify those decisions” would view this “convergence” 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 “convergence.” 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 PauzĂ© 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 “monojural,” rejected any comparative approaches even when the two legal traditions appeared to converge.12

In Jean Coutu, Justice Wagner stated that “the natural convergence in principles and outcomes [
] is generally desirable” [Emphasis added].13 Justice Brown, however, remarked that “[t]his convergence is undoubtedly desirable,” referring to the two cases “arriving at that same conclusion.”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’s reasoning differ from Justice Brown’s.

In Fairmont, Justice Brown indicated that “each legal system arriv[ed] at the same conclusion via different paths.”15 His reasoning centred on the equitable doctrine of rectification. Finding that the parties’ intention to achieve tax neutrality was not sufficiently “definite and ascertainable,” 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 “brought the remedy back to what had originally been its scope.”18

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

While this “convergence” between the legal traditions may be “desirable” 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 “entrenched a stark divide between Canada’s common law provinces and Quebec” where the Civil Code “allows a court, on the application of a party, to ‘annul’ a contract based on an ‘error,’ including a misunderstanding of its tax consequences.”26

Justice Wagner had acknowledged in Jean Coutu that rectification in the two legal traditions will not “always lead to the same result” particularly given “variations in the facts from case to case.”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 “share similar principles.”28 In fact, to further illustrate that the “natural consistency” between the two legal traditions is “desirable,” 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’s “convergence” almost seemed fortuitous, while Justice Wagner described a greater degree of convergence, one in both “principles and outcomes.”30 Put differently, Justice Brown focused more on each tradition “maintain[ing] its distinctive character,” whereas Justice Wagner saw the Supreme Court’s role as “ensur[ing] that the common law and the civil law would evolve side by side.”31 “Convergence” appears to be an objective for Justice Wagner, but only a beneficial side effect for Justice Brown.

Justice Wagner’s discussion on tax policy considerations further distinguishes the two judges’ reasonings. He was explicit in noting that fiscal fairness gave additional support to his conclusions, finding that allowing rectification “would amount to retroactive tax planning,” setting “an undesirable precedent.”32 Such policy considerations apply across Canada and could lead to the kind of “unification” championed by Justice Taschereau who “believed 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.”33 Justice Brown’s 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 “the case of good faith [
] is another example of the two legal systems achieving convergence despite their distinct origins and principles.”35 In Bhasin, Justice Cromwell recognized “a general organizing principle of good faith” in the common law, making an “incremental step” to address an “unsettled and incoherent body of law.”36 He drew on the civil law as a source of “inspiration” both to illustrate that the common law’s approach was “out of step with the civil law of Quebec” and “to take comfort from experience of the civil law” that this change would not pose problems.37 Justice Wagner’s 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 “convergence” between the legal traditions differed.

Justice Brown’s reasoning in Fairmont certainly did not draw “inspiration” 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’s 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’s reasonings differed. Justice Wagner’s comparative law discussion in his reasoning in Jean Coutu was much lengthier than Justice Brown’s in Fairmont. More importantly, however, they differed in how the comparative approach was used. Justice Wagner’s position in Jean Coutu echoes Chief Justice Laskin’s in Guardian v Victoria Tire Sales, also a case on contract rectification.39 Chief Justice Laskin found that Guardian, a Quebec case, “raises an issue which is not peculiar to the civil law of Quebec and [
] the same result [
] would follow at common law.”40 Justice Brown, on the other hand, briefly pointed out a “convergence” between the two legal traditions that almost seems happenstance in Fairmont. This difference “embodies” their beliefs in the role of Canadian comparative law in judicial reasoning. Their reasoning reflects their differing views of the Supreme Court’s role in Canada’s bijural environment.41 Justice Wagner’s reasoning suggests a more active role, one that “manages” the interaction between these two legal traditions, while Justice Brown’s reasoning suggests a more passive role, one that “observes” 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 CĂŽtĂ© 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 CĂŽtĂ© relied extensively on AES and civil law doctrine to analyze the meaning of “common intention” and “object of the contract” 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 “functionally equivalent” and “clearly based on analogous principles.”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’s references to AES and Justice Wagner’s references to Fairmont—their “reach” into the other legal tradition—were both important in the “path” they took to arrive at their respective conclusions. She found that “there is no principled basis in either the common or civil law for a stricter standard in the tax context.”43 In favouring a convergence of outcomes between Fairmont, Jean Coutu, and AES, Justice Abella similarly resonated with the “unification” trend of the “Taschereau years.”44

In comparison, comparative law was much less central to Justice CĂŽté’s 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 “convergence between Quebec civil law and the common law of the other province is desirable from a tax policy perspective,” her conclusion was not driven by a goal to attain this “convergence.”45 She found it “troubling” that the majority’s decisions in Fairmont and Jean Coutu would “consistently” deprive Canadians across all jurisdictions of the rectification remedy. She read Justice Wagner’s reasoning as “import[ing] this limitation into the civil law” from the common law, one that resulted from Justice Brown’s decision in Fairmont.46 She found that the majority’s decisions in the two cases led to a “convergence” that is “far from ‘natural.’”47 Implicit in this reading is that even if she had agreed with Justice Brown’s reasoning in the Fairmont decision (which she did not), Justice Wagner’s 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 “path” taken in the judges’ reasonings, as functionalists would do, ignores the important messages that these differences tell. This comparative analysis between Justice Wagner, Justice Brown, Justice CĂŽtĂ©, and Justice Abella’s opinions in Fairmont and Jean Coutu illustrates distinct approaches to comparative law, each positioned differently on the “monjurality/polyjurality” spectrum.48

Probing Lac d’Amiante du QuĂ©bec LtĂ©e v 2858-0702 QuĂ©bec Inc and Globe and Mail v Canada (Attorney General)

By Joseph Ho, 2L, Faculty of Law, ÎÛÎÛČĘĘźÊÓÆ” University

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A comparative analysis of Lac d’Amiante du QuĂ©bec LtĂ©e v 2858-0702 QuĂ©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 “bran-tubs” 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’s characterization.

At issue in Lac d’Amiante is whether the rule of confidentiality concerning evidence or information obtained at examinations on discovery applies in Quebec despite the Code of Civil Procedure’s silence. In response to the appellant’s 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’s 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’s conclusion inconsistent with [translation] “the tradition and the spirit of the Code of Civil Procedure.”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 “a hermetic system which precludes [
] applying common law concepts.”6 He found that the rule aligned with civil procedure developments in Quebec and the principles supporting an individual’s 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’Heureux-DubĂ© in ±Ê°ùłÜ»ć’hŽÇłŸłŸ±đ v ±Ê°ùłÜ»ć’hŽÇłŸłŸ±đ a year after Lac d’Amiante, he had indeed reiterated that “[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.”8

Three aspects of Justice LeBel’s reasoning in Lac d’Amiante mark his cautious approach to Canadian comparative law. First, he emphasized that “[t]he codified law is paramount” in Quebec, reaffirming that “the Civil Code comprises the jus commune of Quebec,” as Justice Gonthier had remarked in DorĂ© v Verdun.9 The distinctive nature of Quebec civil law requires courts to “find their latitude for interpreting and developing the law within the legal framework.”10 Consistent with his approach in other cases such as Gilles, ABB, and AES, Justice LeBel’s 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] “complete in itself.”12 Likewise, Justice Brown opposed “introducing external legal concepts” that could “affect[] the coherence and stability” of a distinct legal tradition.13 Although much more open to referencing the common law in civil law cases, Justice Gonthier nonetheless stressed that “the civil law is a complete system in itself.”14

Second, justice LeBel described the Code as “paramount”; 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’s “monojurality.”16 Acknowledging that “[t]he rules of Quebec civil procedure themselves reveal mixed nature of their sources,” he distinguished civil trial in Quebec “from the continental European model.”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, “home-grown” from this evolution rather than a common law import. Several legal scholars have pointed out that the Code’s “intellectual pre-eminence” does not necessarily oust other sources of law, derived from Quebec civil law’s “historical and material origins.”19 Justice LeBel’s approach requires “the jurist to ‘know history’ to understand the ‘system’ within which he/she operates” and to “remain open to sources of law which transcend the perimeters of the Code.”20 It is far from Justice Taschereau’s “nomadic” method of referencing “arcane and exotic sources,” but it certainly pushes beyond the written word.21

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Third, Justice LeBel applied a “civil law method of analysis” notwithstanding the convergence between Quebec civil law and the common law regarding discovery.22 He was emphatic that Quebec courts “do not have the same creative power in relation to civil procedure as a common law court.”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’s 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’s appeal to what Broodman, Brierley, and Macdonald describe as “supereminent principles” illustrates a key point: while “the civil law is a complete system in itself,” the Civil Code “is not and cannot be self-contained.”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’Amiante. Judge Fish, in his Court of Appeal reasoning, found that the Canadian common law provinces’ acceptance of the rule of confidentiality gave additional support for its adoption in Quebec.27 On the contrary, the common law provinces’ experiences had no incidence on Justice LeBel’s 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 “take comfort from experience” of the common law. Rather, he “took comfort” in the rule’s compatibility with Quebec civil law’s 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] “purity of the civil law,” who rejected any references to the common law.30ÌęIn 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’s 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 “according to civil law rules.”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’Amiante and Globe and Mail lies in Justice LeBel’s explicit recognition that “[a] gap in the codified law exists” 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’Amiante did he acknowledge such “gap.” Rather, he presented the rule as a natural extension of Quebec civil procedure in Lac d’Amiante. Rosalie Jukier attributes this difference partially to the fact that “there were, in Lac d’Amiante, 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.”37 Justice LeBel stated in Globe and Mail that “the codification of civil procedure does not mean that civil procedure [
] is completely detached from the common law model.”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 “residual role for common law legal principles in the development of this part of Quebec law” 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’s resort to the common law in Globe and Mail, an approach that he went at lengths to avoid in Lac d’Amiante, echoes other Supreme Court judge’s 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 “in the absence of any jurisprudence or established practice to the contrary, the courts of Quebec might well accept and apply the English rule.”43 Justice Brown also endorsed “introducing external legal concepts [
] to fill a gap where domestic law does not.”44

Justice LeBel towed a fine line between applying common law principles in Quebec civil law and ensuring the civil law’s integrity. On the one hand, he stated that “it 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.”45 On the other hand, he described the test as a “Wigmore-like framework” 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’s emphasis on the sources of law drove his analyses in both cases. Highlighting Quebec’s “hybrid legal tradition and culture,” 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 “jus commune.”48 Indeed, Jukier points out that a key lesson from Justice LeBel’s approach is “the 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.”49

However, Justice LeBel’s references to different sources in Lac d’Amiante 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’Amiante. To add further uncertainty, Justice LeBel discussed “public policy” 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’Amiante.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,”[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.”52

Second, Justice LeBel was equally concerned about compatibility with “overarching principles set out in the CCQ and the Quebec Charter” 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 “tests established in a common law context cannot necessarily be imported without adaptation into Quebec civil procedure.”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’Heureux-DubĂ© expressed similar views in a case also arising from Quebec civil procedure. Despite the mixed sources of Quebec civil procedure, she stated that “[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.”55

Last, the different nature of the rules in the two cases illustrate that Justice LeBel’s approaches were not contradictory. The rule of confidentiality adopted in Lac d’Amiante 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’ “secondary or interstitial function in defining procedure in Quebec.”57 Seen in this light, the rule in Lac d’Amiante 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’ 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’s distinct style of reasoning perhaps also speak to different values of their respective times.

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

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  1. See Jean Coutu Group (PJC) v Canada (Attorney General), 2016 SCC 55 [Jean Coutu]. See alsoÌęCanada (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 17–25. See also Fairmont, supra note 1 at paras 81–84.
  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, “Equitable Remedies in Tax Matters: The Elusive Search for Relief,” in Pooja Mihailovich & John Sorensen, eds, Tax Disputes in Canada: The Path Forward (Toronto: Canadian Tax Foundation, 2022).
  4. Catherine Valcke, “Comparing legal styles” (2019) 15 Intl JL in Context 274 at 276 [Valcke, “Styles”].
  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, “From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929” (1987) 32 ÎÛÎÛČĘĘźÊÓÆ” LJ 523 at 525 [Howes, “Polyjurality”].
  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 8.402–8.403.
  5. See AES, supra note 4. See also Jean Coutu, supra note 1 at paras 17–18. 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, “Polyjurality”, supra note 12.
  3. See 2022 SCC 26.
  4. Michael H Lubetsky et al, “Canada’s Top Court Decides Against Equitable Rescission in Collins Family Trust” (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 48–50.
  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, “Canada’s Legal Traditions: Sources of Unification, Diversification, or Inspiration?” (2018) 11:1 J Civil L Stud 75 at 81 [Jukier, “Inspiration”].
  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 92–93, 32.
  5. Ibid, at paras 32, 82. See also Jukier, “Inspiration”, supra note 28 at 100–101.
  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 276–277
  10. See Fairmont, supra note 1 at para 33.
  1. Ibid at para 84.
  2. See Jukier, “Inspiration”, supra note 28. 45 Jean Coutu, supra note 1 at para 91.
  1. Ibid at para 92.
  2. Ibid.
  3. See Howes, “Polyjurality”, supra note 12.

Footnotes Lac d’Amiante du QuĂ©bec LtĂ©e v 2858-0702 QuĂ©bec Inc and Globe and Mail v Canada (Attorney General)

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  1. See Lac d’Amiante du QuĂ©bec LtĂ©e v 2858-0702, 2001 SCC 51 [Lac d’Amiante]; 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’amiante du QuĂ©bec LtĂ©e v 2858-0702 QuĂ©bec Inc, [1999] JQ no 1043 at paras 132, 134, [1999] RJQ 970 (QCCA) [Lac d’Amiante CA]
  4. Ibid at para 46.
  5. Ibid at para 44.
  6. Ibid at para 180.
  7. Ibid at paras 141–144, 150.
  1. 2002 SCC 85 at para 54 [±Ê°ùłÜ»ć’hŽÇłŸłŸ±đ].
  2. Lac d’Amiante, supra note 1 at paras 37, 40. DorĂ© v Verdun (City), [1997] 2 SCR 862 at para 15, 150 DLR (4th) 385.
  3. See Lac d’Amiante, supra note 1 at para 39.
  4. See Gilles E Néron Communication Marketing Inc v Chambre des notaires du Québec, 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 160–163 [Callow].
  7. See Farber v Royal Trust Co, [1997] 1 SCR 846 at para 31, 145 DLR (4th) 1.
  8. See Lac d’Amiante, supra note 1 at para 37.
  9. See David Howes, “From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929” (1987) 32 ÎÛÎÛČĘĘźÊÓÆ” LJ 523 at 525 [Howes, “Polyjurality”].
  10. See Lac d’Amiante, supra note 1 at paras 33–34.
  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, “Faultless Reasoning: Reconstructing the Foundations of Civil Responsibility in Quebec Since Codification” (1991) 14:1 Dalhousie LJ 90 at 91–92.
  2. See Howes, “Polyjurality”, supra note 16 at 530, 535.
  3. Lac d’Amiante, supra note 1 at para 41.
  4. Ibid at paras 39.
  5. Ibid at para 68. See also Rosalie Jukier, “La contribution du juge LeBel au droit judiciaire et à la tradition civilste” (2017) 94:3 R du B can 507 at 516 [Jukier, “LeBel”].
  6. See [1959] SCR 321 at 339, 363.
  7. See Broodman, Brierley & Macdonald, supra note 19 at para 104.
  8. Lac d’Amiante CA, supra note 3 at paras 194–196.
  9. Bhasin v Hrynew, 2014 SCC 71 at para 82.
  10. See Lac d’Amiante, supra note 1 at paras 57–60.
  11. 30 See Jukier, “LeBel,” supra note 24 at 515–516.
  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 73–74.
  2. Globe and Mail v Canada (Attorney General), 2010 SCC 41 (MĂ©moire de l’intimĂ©e Le Groupe Polygone Éditeurs Inc at paras 26, 97–101).
  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, “LeBel,” 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, 127–131.
  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 53–54.
  5. 47 See Globe and Mail, supra note 1 at para 45. See also Lac d’Amiante, supra note 1 at para 32. 48 See Globe and Mail, supra note 1 at para 29. See also Lac d’Amiante, supra note 1 at para 40.
  6. 49 Jukier, “LeBel,” 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 SociĂ©tĂ© intermunicipale de gestion et d’élimination des dĂ©chets (SIGED) inc, 2004 SCC 18 at para 23.
  3. See Globe and Mail, supra note 1 at para 45. See also Lac d’Amiante, supra note 1 at paras 40–41.
  4. 54 2004 SCC 1 at para 48.
  5. VidĂ©otron LtĂ©e v Industries Microlec Produits Électroniques 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’Amiante, supra note 1 at para 37.

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