Probing Canadian Pacific Ry. Co. v. Robinson
Probing Renaud v. Lamothe
By Andrea Pavaluca, 3L, Faculty of Law, McGill University
In the earliest days of the Supreme Court of Canada, successions cases from Quebec represented a fertile ground for comparative law discussions. This is because of the hybrid character of Quebec’s successions regime, which incorporates elements of both French and English law. Successions law is, thus, a manifestation of polyjurality in Quebec private law. The most notable contribution of English law is the freedom of testation, which is the issue at bar in Renaud v. Lamothe[1].
Synopsis
The late Louis Renaud (1818-1878) was a famous French-Canadian merchant and legislative counselor. Renaud, a devout Catholic, had run for the Conservative Party[2].
In his will, Renaud disinherits his grandchildren who are or will not be born from a Catholic marriage or not raised according to the precepts of that religion. One of Renaud’s grandchildren is filing proceedings to invalidate that clause for being contrary to public order[3].
Indeed, art. 831 Civil Code of Lower Canada, provides for the freedom of testation, “saving the prohibitions, restrictions and causes of nullity mentioned in this code, and all dispositions and conditions contrary to public order or good morals”[4].
Renaud’s grandchild invokes “freedom of conscience”, which has been upheld in French doctrine and jurisprudence[5].
However, Désiré Girouard J, writing for the court, sets aside those French authorities. He applies Glengoil Steamship Co. v. Pilkington[6], in which the court found that, “l’ordre public, en matières civiles, n’est pas toujours tel que compris en France, ancienne ou nouvelle”[7]. Given that art. 831 is of British origin, its notion of public order must be interpreted according to English law[8]. That is a well-established rule of interpretation in the early days of the Supreme Court of Canada, see for example Canadian Pacific Ry. Co. v. Robinson[9].
Girouard J hammers home the point that just because a legal rule is French, it does not entail that Quebec courts are bound by it. “Il faut voir d’abord si les lois, promulguées dans les deux pays sur la matière, sont à peu près identiques”[10].
Indeed, the French Revolution has transformed French jurisprudence on the issue of public order and religious freedoms to the point where it is unrecognizable to French-Canadians. He asserts, not without a certain disdain:
N’oublions pas que la révolution française [sic] changea bien des principes, particulièrement en ce qui concerne l’ordre public. Des principes nouveaux, que l’on est convenu d’appeler « les grands principes proclamés en 1789 » sont venus changer l’ordre public, celui qui fut l’âme de notre jurisprudence. Une nouvelle liberté individuelle succéda à l’ancienne ; et pour n’en citer qu’un exemple qui nous intéresse le plus, la faculté même de tester disparut[11].
Given that the Catholic Church has a protected status in Quebec, and benefits from certain privileges, the clause in Mr. Renaud’s will is not against public order[12].
Monojurality/polyjurality
In the spirit of the early jurisprudence of the Supreme Court, Renaud v. Lamothe is another polyjuristic case. Girouard J warmly welcomes the contribution of English law to Quebec’s legal system. Here, English law is more than just a mere influence. Not only is freedom of testation incorporated into Quebec law, the province’s legal system incorporated the entire line of British authorities interpreting that notion.
Interestingly, Girouard J cited Glengoil Steamship Co. v. Pilkington in his motives. It is another polyjuristic decision, in which Henri-Elzéar Taschereau J decries the fact that Quebec’s concept of public order is out of line with the international mainstream[13]. Polyjurality, there, is mobilized in the name of cosmopolitanism. To the contrary, in Renaud, Girouard J utilizes polyjurality to protect Quebec’s particularity. This purpose is more readily associated with the ideology of monojurality.
Cutting the umbilical cord with France
Thus, we can place Renaud at the forefront of a tendency that diverges from the monojurality/polyjurality spectrum: asserting the independence of Quebec’s law from its historical metropoles. While this concern was not yet of central importance in the early days of the SCC, Girouard J was a lone voice in pursuing this endeavor.
Like in Renaud, Girouard J attempts to interpret Quebec law on its own terms in Perrault v. Gauthier[14], another decision characterized by an aversion to French revolutionary liberties. In this labour relations case, damages related to a strike have been claimed. The general civil liability regime has been interpreted in light of the British conception of labour rights. Girouard J explicitly rejects the influence of French constitutionalism, as it has evolved since the Revolution, since it is now at odds with the Canadian labour rights regime.
In Renaud, Girouard J interprets Quebec’s public order as favoring maximal religious freedom for Catholicism. The fundamental premise of his reasoning is what we could qualify as the religious values of Quebec society. The fulfillment of those values is the only thing that is “binding” the court here, unlike the “Frenchness” of French law.
Anti-positivism and ideology
Girouard J gives the court the freedom to be bound by the law of the country which best suits the interests of Quebec. In other words, the Court is bound by the reason of the values of Quebec, rather than the reason of the authority of a given legal system.
However, it is hard not to notice the influence of ideology on Girouard J’s reasons. There is a manifest hostility towards the French Revolution (which he does not even capitalize) and an implicit devotion to the Catholic character of Quebec society. We could thus qualify Girouard J’s motives as purposive.
Who was Justice Désiré Girouard? At the image of his reasoning, Girouard J was a devout Catholic and convinced conservative. In fact, he had been an active member of the Conservative Party, under which he became Minister of Revenue and a Member of Parliament. Girouard J, had also been a fierce opponent of the Institut canadien, the liberal society notorious for its advocacy in favor of freedom of thought and religion[15].
Louis Renaud, the testator himself, had also been an active member of the Conservative Party, involved in clashes with the Institut canadien[16].
Public order and the construction of the French-Canadian identity
The Civil Code of Lower Canada did not define public order. It is a fluid concept that evolves in time. Public order can seek to protect certain moral values (which at the time this case was decided, were also protected under the ambit of “bonnes moeurs”) or institutions. Nowadays, public order often aims at safeguarding the integrity of the State. However, given the crucial role the Church played in French-Canadian social life at the time, we can understand why the Court – and Girouard J the Catholic in particular – wanted to protect its integrity through the notion of public order.
Over the course of the 19th century, the Church positioned itself as the chief defender of the French-Canadian nationality in the face of assimilationist threats. The French-Canadian identity became inextricably linked to the Catholic Church, as liberal nationalism failed to fulfill its promises.[17] The failure of the Lower Canada Rebellion sowed a great deal of misery, and liberals began arguing the case for annexation to the United States, an avenue that, many thought, would put Quebec on the same trajectory as Louisiana – inexorable assimilation[18].
Closing Remarks
The Renaud case fascinates because it breaks any preconceived ideas one may have about monojurality – associated with the preservation of Quebec’s legal specificity – and polyjurality – synonymous with openness and cosmopolitanism. Here, it is polyjurality that is mobilized in the defense of Quebec’s Catholic national identity. Renaud also marks the beginning of a (legal and perhaps also cultural) movement to assert Quebec’s distinct identity against France, which is seen to have embarked on a radically different historical trajectory. In other words, being French-Canadian henceforth means something different than being French.
Probing Canadian Pacific Ry. Co. v. Robinson
This is the story of the workplace death of a railway worker. His devastated wife, Mrs. Robinson, sued CPR, the employer, for bereavement damages. Little did she know that her case, tragic, yet banal in the rapidly industrializing society of 19th century Canada, would be so rich in lessons of interpretation and nation-building.
The legal issues
Mrs. Robinson’s recourse, heard by the Supreme Court of Canada in 1887, was based on art. 1056 of the Civil Code of Lower Canada (CCLC), which provides that:
In all cases where the person injured by the commission of an offence or a quasi-offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right […] to recover […] all damages occasioned by such death.[2]
Can wounded feelings qualify as “damages occasioned by such death”? French, as well as Scottish law – which also has civilian origins – would answer yes. Scottish jurists call this head of damages solatium doloris, or “solace for grief”.[3] Hence, given that Quebec private law has French origins, why would plaintiffs not be entitled to claim under a head of damages well established in French law?
The issue is, art. 1056 CCLC is derived from English law. According to the Supreme Court, it is a reenactment of a British statute commonly known as Lord Campbell’s Act, which does not provide for bereavement damages.[4]
Hence, a classical rule of interpretation from that period’s jurisprudence kicks in: when a rule of Quebec law is of English origin, it must be interpreted according to English authorities.[5] This rule was also applied in such leading cases as Sweeny v. Bank of Montreal,[6] and Renaud v. Lamothe[7] amongst others. Given that English law proscribes solatium damages, Mrs. Robinson cannot claim them.
The motives of Chief Justice William Johnstone Ritchie, as well as of Justices Samuel Henry Strong and Henri-Elzéar Taschereau converge in this direction.
Location of Robinson on the polyjurality/monojurality spectrum
The Court’s motives could be characterized as polyjural because they are open to the influence of a foreign legal system in Quebec’s law: that is, the “other” tradition is seen as a potential “‘alternative for us” instead of only ever presenting an “alternative to us” (monojural) .[8] In this case, English law is more than a mere influence or inspiration, though: it is fully integrated into Quebec’s legal system. Indeed, the Court could have merely acknowledged the British origins of art. 1056 CCLC’s wording, and left itself the freedom to interpret it according to Quebec’s terms. Instead, it held as binding the entire jurisprudence of English courts on the issue of solatium doloris, and by this fact, incorporated it into Quebec’s law.
Beyond polyjurality, assimilation?
In cases like this one, the polyjurality/monojurality spectrum intersects with the assimilation/diversification spectrum. Indeed, the legitimate specificity of Quebec’s law is, here, overshadowed by the common law.
The assimilationist tendencies of the Court’s motives are even more obvious when looking at their underlying policy considerations. According to Ritchie CJ and Taschereau J, legal uniformity across Canada is essential on this point of law.
For Ritchie CJ, a common law judge, assessing damages according to different rules in different provinces through which the same railroad runs would be regretful.[9] Taschereau J, from Quebec, asserts that the legislator could not have intended such a result. He notes how absurd it would be, “[t]hat in the present case, for instance, this plaintiff can get a solatium, because her husband was killed in Lower Canada whilst if he had been killed a few miles further west, in Upper Canada, none would be granted under the same statute.”[10]
In the specific matter of an interprovincial railway injury, the case for legal uniformity is constitutionally sound. Indeed, according to s. 92(a), Constitution Act, 1867, railways “and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province” fall under federal jurisdiction.[11] Therefore, a unified compensation regime for railway injuries across Canada makes sense. Surprisingly, the Court’s reasoning did not engage with those constitutional matters.
If such policy considerations make sense in the specific case of railways, it is less true in a general sense. Canada’s bijural legal system accommodates differences between the two legal traditions. If we can tolerate other differences between the civil law and the common law of torts, what makes the case of solatium so special that it ought to be abolished? Certainly, Taschereau J can ironize on the difficulty of quantifying damages, “mak[ing] an estimation of her tears, sighs and sorrows, in pounds, shillings and pence”.[12] But given that the civil law has a long tradition of estimating widows’ tears in francs, louis and sous, finding an answer to that question appears difficult.
Certainly, it might seem arbitrary that, unlike widows of workers killed in Toronto, the widow of a worker killed in Montreal could claim solatium damages. However, it would follow that every difference between the civil liability regime of Quebec and that of the Canadian common law is unjustified. Thus, the law of civil liability should, in its entirety, be unified across Canada. Why stop at solatium?
By authority of reason or reason of authority?
Ritchie J and Taschereau J’s decisions are also grounded in logical considerations. For instance, they both note how absurd it would be to grant a widow different damages depending on the location of her husband’s death on the railway.[13] Taschereau J adds considers the impossibility to quantify emotional damages as a justification to abolish solatium from Quebec law.[14]
On the contrary, Strong J’s motives are more positivist, for they essentially refer to the well-established rule that Quebec legal norms of English origin ought to be interpreted according to English law. Strong J, a common law judge, thus appeals to “a rule of construction which has the sanction of the highest authority,” hence “binding.”[15] He also invokes the intention of the Quebec legislator not to codify the old French law, “we may safely conclude that it was not intended by the code to lay down any new law or to give any new remedy or to revive the old extinct common law action, but merely to continue the same state of the law as that which previously existed under the statute”.[16]
Loyal to his tendency to be protective of the particularity of Quebec law, Strong J underlines that Mrs. Robinson’s action would have been founded, had French law governed the issue. He provides no criticism of that alternative outcome.
Unification and the railway: Canadian nation-building
This case expresses the centralizing tendencies characteristic of the early days of the Supreme Court of Canada. The Fathers of Confederation viewed legal uniformity as a building block for a unified Canadian national identity. A unified court for the entire country also served to enhance the power and legitimacy of the new federal government.[17] Therefore, it is logical that, at least in its early days, it would follow a line of jurisprudence that favors national uniformity.
It is also interesting to note how a railway case gave way to a centralist result. It might not be a coincidence. Like the Supreme Court, the Canadian Pacific Railway was instituted with the purpose of uniting the nation by connecting it from coast to coast. Indeed, a whole patriotic mythology surrounds the building of the railway, that has lingered on for years in the Canadian national imaginary.[18]
Beyond simple unification, the railway incarnated two core aspects of the Canadian national project, as understood in the late 19th century. The first is to spread British civilization across North America.[19] At that time, the Canadian identity was still inextricably British, and premised on the rejection of Americanism. The Philosophy of Railroads, a widely read pamphlet that played a central role in popularizing railroads, hailed the technological innovation as a harbinger of civilization.[20] More than simply fostering economic growth, railroads brought social integration and moral growth.[21] Furthermore, many considered that technology, such as railroads, held the British Empire together. Thus, the railway could be considered as its symbol.[22]
The second core aspect is the rejection of the manifest destiny of the United States of America. The Fathers of Confederation feared the expansion of the United States into the territory of British North America. Thus, the railway could strengthen the Canadian economy and unite the nation, so that it could resist potential American incursions.[23]
In those circumstances, we can wonder whether the Supreme Court, instituted in the spirit of cementing the young nation through legal uniformity, utilized the railway to further its own mission. A judgment promoting legal diversity, or fragmentation, could have hampered the nationalist mythology surrounding the railway, and thus, diminish its potential. The railway and the Supreme Court, after all, share that common goal.
Furthermore, it is not coincidental that the civil legal tradition is being erased. Naturally, by virtue of Quebec’s population being a demographic minority, its legal system finds itself in a vulnerable position. However, there may be more at stake than the misfortune of numbers. After all, the railway was seen as an instrument for the expansion of British North American civilization, of which the common law is part. Thus, why would it not help the expansion of its legal system as well?
Closing remarks
Robinson exemplifies the polyjural pole of the polyjurality/monojurality spectrum. It is open to the influence of foreign legal systems, and is also supported by rational considerations, contrary to the spirit of positivism. In this case, polyjurality also intersects with the assimilation of Quebec’s distinct legal system to the common law mainstream. This assimilationist tendency is not merely the result of a coincidence or the misfortune of numbers. It appears to be the result of historical conditions that pushed toward centralism and national unification, to the detriment of provincial specificities.
Footnotes Renaud v. Lamothe
[1] Renaud v. Lamothe, (1902) 32 SCR 357 [Renaud].
[2] See Jean-Charles Bonenfant, “Renaud, Louis”, Dictionary of Canadian Biography, http://www.biographi.ca/en/bio/renaud_louis_10F.html.
[3] See Renaud at 362-63.
[4] See ibid at 364.
[5] See ibid at 364-65.
[6] See Glengoil Steamship Company v Pilkington; Glengoil Steamship Company v Ferguson, (1897) 28 SCR 146 [Pilkington].
[7] See Renaud at 364.
[8] See ibid at 366.
[9] See Canadian Pacific Ry. Co. v. Robinson, (1887) 14 SCR 105.
[10] See Renaud at 365.
[11] See ibid.
[12] See ibid at 363-64.
[13] See Pilkington.
[14] Perrault v. Gauthier, (1898) 28 SCR 241.
[15] Michael Lawrence Smith, “Girouard, Désiré”, Dictionary of Canadian Biography, http://www.biographi.ca/fr/bio/girouard_desire_14E.html.
[16] See Bonenfant.
[17] See Yvan Lamonde, Histoire sociale des idées au Québec (1760-1896), vol 1, (Montreal : Fides, 2000) at 288-89.
[18] See ibid at 312.
Footnotes Canadian Pacific Ry. Co. v. Robinson
[1] (1887) 14 SCR 105 [Robinson].
[2] See ibid at 115.
[3] See ibid at 117.
[4] See ibid at 116.
[5] See ibid at 117.
[6] See (1885) 12 SCR 661.
[7] See (1902) 32 SCR 357.
[8] See David Howes, “From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929” (1987) 32 McGill LJ 523 at 525.
[9] See Robinson, supra note 1, at 111.
[10] See ibid at 124.
[11] See Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(a), reprinted in RSC 1985, Appendix II, No 5.
[12] See Robinson, supra note 1, at 123.
[13] See ibid at 111, 124.
[14] See ibid at 123.
[15] See ibid at 116.
[16] See ibid at 121.
[17] See James G Snell & Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: University of Toronto Press, 1985) at 5.
[18] See Andy Albert Den Otter, The Philosophy of Railways: The Transcontinental Railway Idea in British North America (Toronto: University of Toronto Press, 1997) at 11.
[19] See ibid at 53.
[20] See ibid at 31.
[21] See ibid.
[22] See ibid at 113.
[23] See ibid at 53.
