Federal Law-Civil Law Harmonization Act, No. 1 (S.C. 2001, c. 4)
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Assented to 2001-05-10
Federal Law-Civil Law Harmonization Act, No. 1
S.C. 2001, c. 4
Assented to 2001-05-10
A First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law
SUMMARY
This enactment repeals the pre-Confederation provisions of the 1866 Civil Code of Lower Canada that fall within federal jurisdiction and replaces certain provisions with appropriate provisions on marriage applicable only in the Province of Quebec.
This enactment also amends the Interpretation Act to recognize Canadian bijuralism and to provide that provincial law relating to property and civil rights applies to federal legislation on a suppletive basis. It also amends that Act to include interpretation rules relating to bijural provisions in federal enactments.
It harmonizes provisions of the Federal Real Property Act, the Bankruptcy and Insolvency Act and the Crown Liability and Proceedings Act with the civil law of the Province of Quebec.
It also harmonizes certain provisions of other Acts of Parliament with the civil law of the Province of Quebec insofar as those provisions relate to the property law, civil liability law or security law of that Province.
Generally, in provisions that describe a legal concept by using a common law term and a civil law term, the common law term appears first in the English version and the civil law term appears first in the French version. Examples of this are “real property and immovables” in the English version and “immeuble et bien réels” in the French version.
Preamble
WHEREAS all Canadians are entitled to access to federal legislation in keeping with the common law and civil law traditions;
WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society;
WHEREAS the harmonious interaction of federal legislation and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions, as the case may be;
WHEREAS the full development of our two major legal traditions gives Canadians enhanced opportunities worldwide and facilitates exchanges with the vast majority of other countries;
WHEREAS the provincial law, in relation to property and civil rights, is the law that completes federal legislation when applied in a province, unless otherwise provided by law;
WHEREAS the objective of the Government of Canada is to facilitate access to federal legislation that takes into account the common law and civil law traditions, in its English and French versions;
AND WHEREAS the Government of Canada has established a harmonization program of federal legislation with the civil law of the Province of Quebec to ensure that each language version takes into account the common law and civil law traditions;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Federal Law–Civil Law Harmonization Act, No. 1.
PART 1FEDERAL LAW AND CIVIL LAW OF THE PROVINCE OF QUEBEC
Title
Marginal note:Title
2. This Part may be cited as the Federal Law and Civil Law of the Province of Quebec Act.
Civil Code of Lower Canada
Marginal note:Provisions repealed
3. (1) The provisions of the Civil Code of Lower Canada, adopted by chapter 41 of the Acts of 1865 of the legislature of the Province of Canada, entitled An Act respecting the Civil Code of Lower Canada, are repealed in so far as they relate to subjects that fall within the legislative competence of Parliament and have not been expressly repealed.
Marginal note:Interpretation Act
(2) The Interpretation Act applies to the repeal referred to in subsection (1).
Marriage
Marginal note:Substitution
4. Sections 5 to 7, which apply solely in the Province of Quebec, are to be interpreted as though they formed part of the Civil Code of Québec.
Marginal note:Consent required
5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.
Marginal note:Minimum age
6. No person who is under the age of sixteen years may contract marriage.
Marginal note:Monogamy
7. No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null.
PART 2R.S., c. I-21AMENDMENTS TO THE INTERPRETATION ACT
8. The Interpretation Act is amended by adding the following after the heading “RULES OF CONSTRUCTION” before section 9:
Property and Civil Rights
Marginal note:Duality of legal traditions and application of provincial law
8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
Marginal note:Terminology
8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.
PART 31991, c. 50AMENDMENTS TO THE FEDERAL REAL PROPERTY ACT
9. The long title of the Federal Real Property Act is replaced by the following:
10. Section 1 of the Act is replaced by the following:
Marginal note:Short title
1. This Act may be cited as the Federal Real Property and Federal Immovables Act.
11. (1) The definitions “droits réels” and “immeubles” in section 2 of the French version of the Act are repealed.
Marginal note:1995, c. 5, par. 26(1)(c)
(2) The definitions “Crown grant”, “head of mission” and “licence” in section 2 of the Act are replaced by the following:
“Crown grant”
« concession de l’État »
“Crown grant” means any of the instruments or acts referred to in section 5, a plan referred to in section 7, a notification within the meaning of the Territorial Lands Act or any other instrument or act by which federal real property may be granted or federal immovables may be conceded;
“head of mission”
« chef de mission »
“head of mission”, in relation to real property or an immovable in a country outside Canada, means a person described in subsection 13(1) of the Department of Foreign Affairs and International Trade Act who represents Canada in that country;
“licence”
« permis »
“licence” means any right to use or occupy real property or an immovable, other than
(a) a real right within the meaning of the civil law of the Province of Quebec and the rights of a lessee under a lease of an immovable, and
(b) an interest in land;
(3) The definitions “federal real property”, “interest” and “real property” in section 2 of the English version of the Act are replaced by the following:
“federal real property”
« bien réel fédéral »
“federal real property” means any real property belonging to Her Majesty, and includes any real property of which Her Majesty has the power to dispose;
“interest”
« intérêt »
“interest” means
(a) in relation to land in any province other than Quebec, any estate, right, title or interest in or to the land, and includes an easement, a servitude and a lease, and
(b) in relation to land outside Canada, any estate, right, title or interest that is similar to that referred to in paragraph (a);
“real property”
« biens réels »
“real property” means land in any province other than Quebec, and land outside Canada, including mines and minerals, and buildings, structures, improvements and other fixtures on, above or below the surface of the land, and includes an interest therein.
(4) The definition “immeuble fédéral” in section 2 of the French version of the Act is replaced by the following:
« immeuble fédéral »
“federal immovable”
immeuble fédéral Immeuble appartenant à Sa Majesté ou dont elle a le pouvoir de disposer.
(5) Section 2 of the English version of the Act is amended by adding the following in alphabetical order:
“federal immovable”
« immeuble fédéral »
“federal immovable” means an immovable belonging to Her Majesty, and includes an immovable of which Her Majesty has the power to dispose;
“immovable”
« immeuble »
“immovable” means
(a) in the Province of Quebec, an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of such an immovable, and
(b) in jurisdictions outside Canada, any property that is an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of any such property;
(6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« bien réel fédéral »
“federal real property”
bien réel fédéral Bien réel appartenant à Sa Majesté ou dont elle a le pouvoir de disposer.
« biens réels »
“real property”
biens réels Dans une province autre que le Québec et à l’étranger, les biens-fonds et les intérêts afférents, y compris les mines et minéraux, bâtiments et autres ouvrages, accessoires fixes ou améliorations de surface, de sous-sol ou en surplomb.
« immeuble »
“immovable”
immeuble
a) Dans la province de Québec, immeuble au sens du droit civil de la province de Québec et, par assimilation, tout droit du locataire relativement à l’immeuble;
b) à l’étranger, tout bien qui est un immeuble au sens du droit civil de la province de Québec et, par assimilation, tout droit du locataire relativement au bien.
« intérêt »
“interest”
intérêt Ä l’égard d’un bien-fonds :
a) dans une province autre que le Québec, tout domaine, droit, titre de propriété ou intérêt portant sur ce bien-fonds, y compris un service foncier, une servitude et un bail;
b) à l’étranger, tout domaine, droit, titre de propriété ou intérêt semblable à celui qui est mentionné à l’alinéa a).
12. Section 3 of the English version of the Act is replaced by the following:
Marginal note:Authorization of officials
3. Any Minister may authorize in writing an officer of the Minister’s department or of any other department, or any head of mission, to exercise on behalf of that Minister any power given by or under this Act to that Minister, including the power to sign an instrument or act.
13. Section 4 of the Act and the heading before it are replaced by the following:
DISPOSITIONS, LEASES AND LICENCES
Marginal note:Prohibition
4. Subject to any other Act, no disposition or lease of federal real property or federal immovables shall be made and no licence shall be given in respect of any such property except in accordance with this Act.
14. The heading before section 5 of the English version of the Act is replaced by the following:
GRANTS AND CONCESSIONS
15. (1) The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Letters patent, etc.
5. (1) Federal real property may be granted and federal immovables may be conceded
(2) Paragraph 5(1)(b) of the English version of the Act is replaced by the following:
(b) by an instrument of grant or an act of concession, in a form satisfactory to the Minister of Justice, stating that it has the same force and effect as if it were letters patent.
(3) Subsections 5(2) to (5) of the Act are replaced by the following:
Marginal note:If property within Canada
(2) Federal real property and federal immovables within Canada may, at the discretion of the Minister of Justice, be granted or conceded, as the case may be, by any instrument or act by which, under the laws in force in the province in which the property is situated, real property and immovables may be transferred by a natural person.
Marginal note:If property outside Canada
(3) In a jurisdiction outside Canada, federal real property may be granted, and federal immovables may be conceded, by any instrument or act by which, under the laws in force in that jurisdiction, real property and immovables may be transferred.
Marginal note:Leases
(4) A lease of federal real property or of a federal immovable within Canada may also be granted by an instrument or conceded by an act that is not referred to in subsection (1), whether or not it is an instrument or act by which real property or immovables in a province may be transferred by a natural person.
Marginal note:Signing instruments and acts
(5) An instrument or act referred to in this section granting federal real property or conceding federal immovables, other than letters patent, shall be signed by the Minister having the administration of the property.
(4) Subsections 5(6) and (7) of the English version of the Act are replaced by the following:
Marginal note:Countersignature
(6) An instrument or act referred to in paragraph (1)(b), or an instrument or act referred to in subsection (2) other than a lease, shall be countersigned by the Minister of Justice.
Marginal note:Effect of instrument or act
(7) An instrument or act referred to in paragraph (1)(b) has the same force and effect as if the instrument or act were letters patent under the Great Seal.
16. Sections 6 to 15 of the Act are replaced by the following:
Marginal note:Execution of licences
6. A licence in respect of federal real property or a federal immovable shall be signed by the Minister having the administration of the property.
Marginal note:Plans
7. (1) Where under the laws of Canada or a province a plan may operate as an instrument or act granting, conceding, dedicating, transferring or conveying real property or immovables for a road, utility, park or other public purpose, the use of such a plan in relation to any federal real property or federal immovable may be authorized by the same authority that may authorize the grant, concession, dedication, transfer or conveyance of that property.
Marginal note:Execution
(2) A plan referred to in subsection (1) relating to any federal real property or federal immovable shall be signed by the Minister having the administration of the property and countersigned by the Minister of Justice.
Marginal note:Delivery required
8. (1) Subject to a contrary intention expressed in any instrument or act, the rule of law that a grant of federal real property or a concession of federal immovables by letters patent requires no delivery to take effect is hereby abrogated.
Marginal note:Time of taking effect
(2) A grant of federal real property and a concession of federal immovables by letters patent or by an instrument or act referred to in paragraph 5(1)(b) shall take effect in accordance with the provisions of the letters patent, instrument or act or, if there is no provision for its taking effect, shall take effect,
(a) where the letters patent are or the instrument or act is delivered on terms or subject to conditions, on their satisfaction or removal; and
(b) in any other case, on delivery of the letters patent, instrument or act.
Marginal note:Words of limitation
9. Where under the laws of a province other than Quebec an instrument transferring real property without words of limitation operates as an absolute transfer of all the transferor’s interest in the real property, a grant of federal real property in that province by letters patent or by an instrument referred to in paragraph 5(1)(b) operates as a conveyance of a fee simple or equivalent estate in the property although no words of limitation are used in the instrument, if Her Majesty has power to grant the fee simple or an equivalent estate in the property and no contrary intention is expressed in the instrument.
Marginal note:Grants or concessions to Her Majesty
10. Her Majesty may grant federal real property and concede federal immovables to Herself.
Marginal note:Transfers of administration and control
11. (1) An instrument transferring administration and control of federal real property or an act transferring administration and control of federal immovables to Her Majesty in any right other than Canada pursuant to regulations made under paragraph 16(2)(e) shall be signed by the Minister having the administration of the property and countersigned by the Minister of Justice.
Marginal note:Effect of grant, etc.
(2) A grant, concession, vesting order or other conveyancing instrument or transfer act in favour of Her Majesty in respect of any real property or immovable belonging to Her Majesty in any right other than Canada results, on its acceptance, in Her Majesty having administration and control of the property.
Marginal note:Restrictions
12. A lessee of any real property or immovable from Her Majesty, the successor, sublessee or assignee of such a lessee, a person who holds an interest derived from such a lease or a person who holds a licence in respect of federal real property or federal immovables may not, without the consent of the Governor in Council, grant or agree to any covenant or condition restricting or controlling the use of the property except in favour of
(a) Her Majesty;
(b) any person through whom that interest or right was derived; or
(c) in the case of such a lessee, successor or assignee or person holding such an interest, any sublessee or licensee of that person.
APPLICATION OF OTHER LAWS
Marginal note:Acquisition under provincial Act
13. Except as expressly authorized by or under an Act of Parliament, no person acquires any federal real property or federal immovable by or under a provincial Act.
Marginal note:No title by prescription
14. No person acquires any federal real property or federal immovable by prescription.
MINISTER OF JUSTICE
Marginal note:Powers of Minister of Justice
15. (1) The Minister of Justice may, for purposes of the acquisition or disposition of, or any dealing with, any real property or immovable, on behalf of Her Majesty,
(a) determine the type of instrument or act to be used for those purposes and settle and approve the form and legal content of any Crown grant or other instrument or act;
(b) effect the delivery of any instrument or act, including its delivery on terms or subject to conditions satisfactory to the Minister of Justice, whether or not the satisfaction or removal of the terms or conditions will result in the delivery becoming absolute; and
(c) give and accept any undertakings from an advocate or a notary of the Province of Quebec or a barrister or solicitor of any other province that are in the opinion of the Minister of Justice necessary for or incidental to the completion of a transaction concerning real property or immovables, including undertakings respecting the delivery of any instrument or act and the payment of any purchase price or other moneys.
Marginal note:Regulations
(2) The Governor in Council may, on the recommendation of the Minister of Justice and the Treasury Board, make regulations respecting
(a) the referral of specified classes of transactions concerning real property or immovables within or outside Canada to the Minister of Justice for settlement and approval of the form and legal content of instruments or acts or for other purposes; and
(b) the establishment and operation of a depository for the deposit of copies of instruments and acts relating to federal real property and federal immovables other than instruments and acts issued under the Great Seal.
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