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  • Print publication year: 2016
  • Online publication date: December 2017


from Part II


Canada is a constitutional federation whose Head of State is Queen Elizabeth II. Despite the Conquest of New France by the English (1759–1760), crystallised by the Treaty of Paris in 1763, French-derived private law was reintroduced in the Province of Quebec, for strategic reasons, on the occasion of the Quebec Act (1774). This compromise – public law remained anchored in the common law tradition – was reiterated on the occasion of Canada's foundational Constitutional Act (1867), by virtue of which ten provinces retain competence over private law matters and property, including the legal basis for liability or procedural requirements (such as time limits, class actions and the like). From a constitutional standpoint, this situation is fragmented, as the field is indeed of a provincial nature, albeit increasingly shaped by federal and provincial legislation. Despite judicial deference to the stare decisis principle and obvious receptiveness to persuasive authority, Canada's constitutional aesthetics, as mentioned, explain the various discrepancies between the nine common law provinces themselves. The blending of the civil law and the common law traditions, too, adds to the complexity of the Canadian legal framework: in Quebec, the coexistence of both legal traditions is particularly visible in the field of personal injury damages and product liability, whereby the circulation of French, English, American and EU models influenced Quebec's Civil Code (CCQ) and Code of Civil Procedure,3 among other pieces of legislation.

Both Canadian common law (which resisted the strict liability American tsunami) and Quebec's civil law (which never embraced the categories of culpa levis, culpa levissima and culpa lata originating in Roman law) can be said to be sui generis4 when compared to their historical contexts. This characteristic has, over the years, been marked by a phenomenon of osmosis between the civilist tradition and the influence of North American common law. In addition, some provinces’ personal injury framework – such as that of Saskatchewan or Quebec – have also been shaped by socialist political influences that supported, after the 1970s, the creation of a Swedish-style no-fault compensation scheme for automobiles. Along with widely adopted workers’ compensation statutes, these statutory regimes have led to the cross-fertilisation of private law and administrative law in awarding damages, further eroding, specifically in Quebec, the centrality of its Civil Code.