Saturday, January 30, 2010

"VIVE LA DIFFÉRENCE" - The Province of Québec, the Civil Code and Trade-mark Issues – a Brief Outline of Some Differences

Québec’s legal system has a very interesting cultural and legal history in that both were heavily influenced by a combination of the French custom of written law and the British tradition of oral and case law. Originally a territory belonging to the French Crown, Québec’s local authorities adopted in 1664 the “Coutume de Paris” as the main body of law governing the French settlement of “La Nouvelle France”. These customs were complemented by local customs, canon law and royal edicts. With the British influence arriving in North America and their victory over the French in Nouvelle France, British law was imposed on the territory. However, a short time later, the British allowed the French population to carry on with their language, religion and laws for civil matters, and thus the systems of French “civil law” and British “Common Law” began to co-exist in the same territory.

The of law of La Nouvelle France (or then under its newer name of “Lower-Canada”) remained a somewhat informal body of customs until the adoption of its first official codification in 1866 under the name of the Civil Code of Lower Canada – C.c.L-C., which was influenced by the French Napoleonic Code of 1804, the Louisiana Civil Code and some British common law. The Civil Code of Lower Canada consolidated these different sources and created a body of law that was more suited to the local society. As the C.c.L-C. evolved over the years it was modified several times and influenced by various factors including new social, economic and political realities in Québec as well as globalization. The C.c.L-C. continues to evolve with the last major modification having been adopted on January 1, 1994 and set out in the new Québec Civil Code.

The Quebec civil law system is therefore based on written law. The concepts are somewhat static and cases must look to the law to interpret the rules and find a solution to the problems set before the courts. Conversely, the “Common Law” system is founded on the resolution of situations where the of rule law has always existed, but is in constant process of being “discovered”. This body of law consists of the compilation of solutions consecrated in judgements and gathered over time. It is from this constantly evolving body of law that solutions are found to resolve issues.

As the rest of the Canadian territory matured and developed its body of laws under the British traditions, Québec maintained its ties with the French civil tradition. Even as the nation of Canada was officially born in 1865 with the adoption its Constitution, the province of Québec maintained the pluralist nature of its legal system. The Canadian Constitution formalised agreements between the provinces and created a central federal system, dividing legislative powers by granting exclusive jurisdiction to the provincial authorities over various domains, most notably over civil matters. We therefore find in the province of Québec a body of civil laws governing certain aspects of the law, a body of provincial statutory provisions complimented by the civil law, and a body of federal laws steeped in English Common Law traditions.

It is not unusual therefore that a Québec court takes a different approach to the interpretation of a federal statute when the law provides little or no guidance. Since the supplemental or complimentary legislative body used to interpret federal statutes is the Québec Civil Code rather than the Common Law as in other provinces, Québec judges will turn first to the Civil code, and case law, whereas a judge in other Canadian provinces will turn to case law to assist in the interpretation.

These fundamental philosophical differences create various situations where, although the end results may be similar, the means of reaching such solutions may vary.

For example, Québec law, as it pertains to trade-marks contains a number of differences, for example, as it relates to the Common Law tort of “passing off”.

If an action were taken in a Québec provincial court, regardless whether the Canadian federal Trade-mark’s Act applies, the Québec Civil Code would find application as well as the body of procedural law based on the Québec Code of Civil Procedure.

Since the tort of “passing off” is a creature of “common law”, and does not exist in civil law, we would turn to the Québec civil code to find a “legal fit”. The remedy in Quebec law would be a concept called “concurrence déloyale”, literally translated as “unfair competition”. Care must however be taken in that it is not the common law concept of “unfair competition” but a French based civil law concept that has a wider range of remedies. It is based in the general “fault” of civil responsibility. These differences have repercussions on how a case is handled, and the possible outcome.

Another major difference with Québec law is the province’s constitutional right to protect its culture and language. To this effect, there is a statute pertaining to the French language that has impacted many marketing campaigns and trade-mark portfolio strategies.

The Charter of the French Language – Rules and Exceptions:

In the province of Québec the use of language in commerce is regulated by the Charter of the French Language (R.S.Q., c. C-11) (the “Charter”).

Section 51 of the Charter establishes the general rule with respect to product labeling stating that inscriptions on products must be in the French language:

“51. Every inscription on a product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, must be drafted in French. This rule applies also to menus and wine lists.

Other languages.

The French inscription may be accompanied with a translation or translations, but no inscription in another language may be given greater prominence than that in French.”

1977, c. 5, s. 51; 1997, c. 24, s. 24.

There are exceptions to this rule, and of course the requisite exceptions to the exceptions.

Without going into a full analysis of this issue, suffice it to say that there exists legislation unique to the province of Québec that often requires the intervention of specialized Québec legal counsel.