Professional Documents
Culture Documents
Where you will learn: that the patrimony is like a bagel (and human rights are the hole);
that watching ShamWow! commercials
commercials is a legitimate use of class time; that
partnerships may or may not have a patrimony, depending on the judges doctrinal
sympathies; and that by coming to class 10 minutes late, you will still arrive before the Professor.
Note: Ive reorganized the syllabus in ways which make more sense to me.
All the content is still there its just not presented in the same order or using
the same divisions as PEMs syllabus. I think this way is more logical.
Also, a lot of the cases seem to be illustrations rather than precedent-setting
judgements, so not every case has a ratio.
iii) Codification
Motives for codification: Need to end polyjuridical confusion by acknowledging supremacy of Civil Law, desire to facilitate economic
expansion and trade, desire to reinforce conservative social values, desire to emphasize juridical bilingualism.
The codification process began in 1857 and was completed in 1866, the year before confederation. Both English and French jurists
took part in the codification, so that some parts of the code were written in English, then translated, while others were written in
French, then translated. By contrast, the 1994 CCQ was written entirely in French, then translated in to English! The 1857 CCQ was
translated well, the current version was translated quite poorly and even 15 years later retains many translation errors in English.
Rather than organize patrimonies around legal or natural persons, this theory uses the destination or intended purpose of property as an
organizing criteria. The absolute version of the theory allows for patrimonies without subjects (foundations/trusts) while limited
versions allow one person to have multiple patrimonies (one for personal purposes, one for work/commercial purposes, one for
philanthropy, etc.). This theory has had limited appeal due to its complexity, and the ability of one-member moral persons to solve the
biggest problem of the classical theory. Qubec makes some concessions to this theory, largely due to the influence of English law.
a915 Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose (une affectation). [Emphasis added]
ii) Doctrine
Nature of the Qubec Partnership (Wilhelmson): Partnership has characteristics of both organized indivision [see section 6.1.1] and
the corporation. Many authors have concluded that partnerships have an imperfect or restrained moral personality, but W thinks
this is needlessly complicated. He argues that partnerships have a patrimony, since ambiguities in the Code are generally interpreted in
favour of the distinct patrimony (partners cannot sell undivided shares in property held by the partnership to third parties). However,
partnerships still lack many aspects of moral personality: they cannot sue in their own name (changed with CCQ) and contracts
between partner and the partnership are of uncertain status. Thus partnerships may have a patrimony but no moral personality. [The
debate surrounding article 1899 (pp.1001-1002) is a great example of civilian interpretation of ambiguous articles in the Code using
the organization of the code and other articles to illuminate them Mike]
iii) Jurisprudence
Tremblay c. Daigle: Viable foetuses can inherit property, since the patrimony includes future property in its definition. Some, but not
all, rights of a foetus are protected due to the theory of the patrimony. Thus once born the foetus inherits the future property it was
owed. This is more a function of protecting the future interests of the child that the foetus will become than it is a recognition of the
rights of the foetus. Thus foetuses do not have juridical personality, nor any extrapatrimonial rights (such as a right to life).
a617 codifies the ruling in Daigle.
unincorporated association formed by a group of individuals has some but not all the attributes of a juridical personality: it has no
patrimony.
Dissent: The CCBC can be interpreted as implying that societies have a patrimony: a.1899 begins Les biens de la socit, while
a.115 of the CCP states that seizure against a partnership applies que sur les biens de la socit. If we apply to these words their
standard meanings, then partnerships have a patrimony.
Ratio: Partnerships do not have a patrimony (kinda).
Comment: According to Moyse, the ratio is NOT that partnerships have patrimonies in Qubec. That question is still open, since there
are no binding precedents in Droit Civil. That said, it nudges the balance of opinion towards no since its a Court of Appeals
judgement.
ii) Jurisprudence
Torrito c. Fondation Lise T. [1995] RDF 429 [C1.110]
Facts: The Foundation used the name, picture and video footage of Ts deceased child as part of a publicity campaign to raise funds
and awareness for severely handicapped children. This was done without the authorization of the parents. T, on behalf of their child,
demand that the Foundation be prevented from using the childs name and likeness, citing Lise T.s right to privacy. The Foundation
claims that there was no damage to the child, and that their work is in the public interest.
Issue: Did the right to privacy of Lise Torrito pass to her parents after her death?
Holding: Yes.
Reasoning: The succession of the child passed to the parents by virtue of a.653, and the succession included those rights guaranteed
by a.35, including the right to privacy. The right to decline publicity is clearly part of the right to privacy. The Foundations goals may
be in the public interest, but the way in which it acted here was not, as there is no excuse for not obtaining the permission of the
parents. Furthermore, they could have achieved the same goal by other means. Thus they violated Lises right to privacy.
Comment: At the time, article 35 read No one may invade the privacy of a person without the consent of the person or his heirs
unless authorized by law. Italicized text has since been removed. See also a625(3) and a1610, which allow heirs sue for breach of
personality rights if the breach occurred prior to the holders death.
Moyse: La loi est une cathdrale des concepts qui na pas toujours un cho en la ralit.
Essai dune prsentation nouvelle des biens incorporels (Savatier) [C1.141]: il nest.. dautres biens que les droits. Tout droit,
mme sur une chose concrte, tant incorporel, il nexiste donc que des biens incorporels.
ii) Doctrine
Le Droit des biens (Pierre-Claude Lafond) (cited in Mallette): Il faut se garder de confondre les biens abandonns par leur
propritaire des biens perdus ou vols. Dans le premier cas, les biens nont pas de matre tandis que, dans le cas dune perte ou dun
vol, leur propritaire nen a plus la possession mais en conserve la proprit.
Le Vocabulaire juridique (Grard Cornu) (cited in Boivin): Treasure is: Chose cache ou enfouie (ex. pices d'or, bijoux, etc.),
dcouverte par le seul effet du hasard, sur laquelle personne ne peut justifier de sa proprit ou dont la proprit est attribue en tout
ou en partie, suivant la distinction de la loi, celui qui le trouve.
Droit Civil: Les Biens 11e ed. (Jean Charbonnier) (cited in Banque Laurentienne): Le titulaire dun droit reel peut, en principe,
labandonner par volont unilatrale : il est seul; cela ne dpend que de lui. Abandonment is thus a unilateral act which causes the
right/object to disappear from the owners patrimony. It is inherent in the right of abusus.
iii) Jurisprudence
Boivin c. PGQ [1997] RJQ (CS)[WebCT]
Facts: The plaintiffs found a series of gold bars on the bed of a lake. They claim property over the ingots, and also over all other gold
bars discovered on the lakebed, arguing that the treasure forms a whole, and that their discovery incited others to commence treasurehunting on the lakebed in the first place. PGQ argues that it is half-owner of the bars, as the lakebed belongs to the State. Several third
parties also found gold bars in the lake. They intervened in the case, claiming that their gold bars were neither part of the original
treasure, nor a treasure at all, since they were abandoned movables.
Issue: (1) Are the gold bars legally treasure, abandoned movables or lost/forgotten movables? (2) If treasure, are they one treasure,
or multiple treasures? (3) Do the plaintiffs have claims on the interveners gold bars?
Holding: (1) Treasure (2) Multiple treasures (3) No.
Reasoning: The judge reviews the doctrinal treatment of treasure (see above). Next he asks whether a reasonable man would throw
(abandon) several gold bars valued at $16,000 each in to a lake with the intention to extinguish his rights over them. He responds no,
thus they cannot be abandoned movables. Equally clearly they are not lost or forgotten. He concludes that they are treasure, adding
Why this occurred we may never know; is there ever treasure without mystery? Examining both the serial numbers of the ingots and
their physical locations, he rules that they are not part of the same treasure. Claims on the third parties treasure are rejected out of
hand. The bars are half the property of the finders, half the property of the state.
that the bars were permanently abandoned. They note that it would be very difficult to recover the bars and SQ would probably get
involved, since the lake was government property. Thus it is implausible that the bars were hidden for later recovery. In any case, le
silence de son propritaire ou de ses ayants droit est eloquent the fact that no owner has come forward despite intense media
coverage shows intent to abandon.
Ratio: (1) To classify something as treasure, it must be shown that no one has any rights to it after analyzing the context of its
discovery (2) La conclusion tirer des indices de faits non contestes est une question de droit."
Theres also a good discussion of real and personal rights quoted in Cadieux c. Morin.
Trait de droit civil (J. Ghestin) [C1.127]: Ces expressions [dds et ddp] ne sont que la traduction concrte de lopposabilit tous du
droit rel. Elles conviennent davantage aux droits rels accessoires.
Useful CCQ articles
Real rights: a904 (real rights in immovables), a912 (enforcement), a1453-1455 (transfer of real rights), a2660 (droit de preference),
a953 (droit de suite)
Personal rights: a2645, plus Book 6 (Obligations) esp a1371-1376, a1440.
Accessory real rights are defined at a2660-2661, a2773, a2778
DT 48 Under article 903 only those movables referred to which ensure the utility of the immovable are to be considered as
immovables, and any movables which, in the immovable, are used for the operation of an enterprise or the pursuit of activities are to
remain movables.
ii) Doctrine
Prcis de droit des biens (Pierre-Claude Lafond) (quoted in Axor): 5 conditions necessary for immobilisation by attachment : 1) The
presence of an immovable; 2) The attachment or union of the movable to the immovable; 3) The movable must maintain its
individuality; 4) The link must be of perpetual duration ( demeure); 5) The function of the device must assure the usefulness of the
building. Interprets/expands on a903+a48 of the DT.
iii) Jurisprudence
Belair c. Ste.-Rose (Ville), [1922] SCR [C1.238]
Facts: Belair owned a bridge between the towns of Ste. Rose and Ste. Thrse. The municipality levied a tax on immovables, which
Belair claimed did not apply to his bridge because it was not an immovable.
Issue: Was the bridge an immovable in the sense of a376 (Lands and buildings [btiments] are immovables by their nature) or
a377 (Windmills and water-mills, built on piles and forming part of a building, are also immovable by their nature)?
Holding: Yes.
Reasoning: The case turns on the interpretation of the words btiment and building (since the English and French texts have equal
weight!). The word is interpreted by the Court to mean structures of any kind which are attached to the ground. The bridge is thus
immovable by nature (a376). Mignault: La deuxime prtention de lappelant est que le pont nest pas un immeuble. Je me demande
quelle serait la nature de ce pont sil nest pas immeuble, car ce nest certainement pas un meuble, et il faut quil soit ou meuble ou
immeuble.
Comment: Note that the servitude on the river bed the right to build a bridge resting on it is itself an immovable, even though its
an incorporeal right (and hence normally movable) because rights relating to immovables are immovable.
Montral c. 2313-1329 Qubec Inc. (Rock Sanna Caf Bistro) and 2086091 Qubec. Inc. [2002] [C1.263]
Facts: RSCB went bankrupt and a wide variety of goods were seized from the restaurant as a result: appliances, furniture, etc. RSCBs
owner vacated the premises and left all of the seized equipment behind, agreeing with his landlord to transfer the equipment along
with his lease to the next tenant. This transaction was confirmed (homologu) by a Superior Court judge. 2086091 Qubec Inc.
became the next tenant of the property and opposes the city of Montreals seizure, claiming that the transfer of ownership removed any
right of seizure the city had against RSCB.
Issue: Are the goods movable (and hence subject to seizure) or immovable?
Holding: Movable.
Reasoning: Some objects, such as the chairs, tables, fire extinguisher, etc. are clearly movables. Others were somehow attached to the
building via metal screws or through the plumbing. The judge quotes Pierre-Claude Lafonds five conditions for immobilization by
attachment (supra) and their application in Axor (supra). He finds that the attachment of the objects to the building was not
sufficiently permanent to fulfill condition 4 and that the building would retain its usefulness even if they were removed, so condition 5
fails as well. Thus they are movable.
a949 Fruits and revenues belong to the owner, who bears the cost incurred to produce them.
a1018 Fruits and revenues with respect to indivision.
a2287 Deposits/detention and fruits and revenues.
See also usufruct (a1120+), use (a1172+). C/F&R are mentioned in the section on debts/hypothecs, but I doubt we need to know that.
CHAPTER 4: PROPERTY
4.1.1 History
Roman law classified property as one branch of the law of things, the other being contract law. Roman law recognized two kinds of
property: individual and collective (property held by families, political groups, etc). Individual property was absolute; only one person
had dominium over a good. Property rights included the triad of usus, fructus and abusus. The right of ownership could be
dismembered and the dismemberments given to others.
Medieval law recognized multiple owners over the same object, each having different sets of rights. Thus no one truly owned
land, since each had rights only in certain domains. Ex: tenant owns right to use land and to most of the crops ( domaine utile); lord
owns rights to the rest of the crops, to feudal privileges over tenants (corve, banalit, etc), right to veto sale or transfer of land
(together these rights were known as domaine suprieure); king gets feudal services from lord (generally taxes and military service).
4.1.2 Theory
Justifications for private property can be divided in to two themes (taken from Lamettis joint lecture):
i) Individual-Based Arguments
Locke: You own your body, and by mixing your labour with the natural world, you gain ownership over things. Problems:
appropriation without effort (by fencing off land should I gain ownership over it? What about land I clear from the forest?), difficulties
of mixing (If I mix what I own with what I do not own, why do I gain property rather than lose it?), difficulties of employment (why
do I gain property rights in the work of my employees?).
Hegel: Uses mixing of will, rather than labour. People have will, objects dont. Thus by infusing our will in to objects, we gain
ownership over them.
Aquinas: Resources were given to Man by God (Donative theory) and we need to exploit them to survive (Adam and Eve condemned
to survive by the sweat of their brow)
Calvinists: If you are predestined to go to Heaven, your holiness will be reflected on Earth as well. Material success is Gods reward
to the faithful. Private property is necessary for this process.
Hegel+Radin: Personality helps us self-actualize/express our personality. Wedding rings, artwork, etc.
i) Absolute
CCQ speaks of property as full, (English a947 CCQ) or complete (French a497 CCQ) while older doctrine refers to it as
absolute (a406 CCLC both languages). Either way, property is the totality of DDB and all other real rights are carved out of it.
Moyse: Le Code est malalaise avec la co-proprit. It prefers absolute forms of property rights.
ii) Exclusive
Property is exclusive in the sense that it can be opposed to all third parties. Some real rights need to be published before they are
opposable. See section 3.2.1.iv, above, for information on publication.
a912 The holder of a right of ownership or other real right may take legal action to have his right acknowledged.
a953 The owner of property has a right to revendicate [sic] it against the possessor of the person detaining it without right, and may
object to any encroachment or to any use not authorized by law.
La notion de modalit de la proprit (S. Normand): Le caractre exclusif de la proprit renvoie au droit, reconnu au propritaire,
de bnficier, sans partage, du monopole des avantages confrs par le bien.
iii) Perpetual
Essai sur la dure des droits patrimoniaux (Cantin Cumyn) [C2.25]: The code contains articles specifying the duration of usufruct
and emphyteusis (a.1123 and a.1197), but not property itself. Ownership is the only real right that does not extinguish by non-use
(contrary to servitudes, a1191) Seule la destruction totale de lobjet anantit le droit de proprit. [pp.14]
ii) Fructus
Attribute of property that allows the owner to benefit from the fruits and revenues of the property.
a948 Ownership of property gives a right to what it produces and
a 949 The fruits and revenues of property belong to the owner, who bears the costs he incurred to produce them.
a908-910 Further define the concept and rules for fruits and revenues.
iii) Abusus
The right to dispose of property, both physically and juridically. Can consume, damage, destroy or abandon it. Can sell it or give it
away. Can change it in important, irreversible ways.
The owner of property can never dismember his abusus even the most extensive dismemberments (usufruct, emphyteutic lease)
leave abusus in the hands of the owner. In these cases he is called the nu propritaire or bare owner.
An Act Respecting the Lands in the Domain of the State [C1.166]: Sets out the requirements for managing and using public lands.
Cultural Property Act [CB2.67]: The act provides for the recognition or classification of movables and immovables as cultural
property and states in s.30 Every classified cultural property must be kept in good condition. This imposes a duty on owners of
historic items or property not imposed on normal property owners (thus restricting abusus and usus of the owner).
Mining Act [C1.302]: Rights in or over mineral substances form part of the domain of the State. Exceptions: sand, rock, gravel, other
building materials.
Constitution Act 1867, s.125: State property is immune from taxation (This clause exists to prevent different levels of government
from taxing each other!).
ii) Doctrine
Discours sur la proprit (Portalis) [C2.19]: Au citoyen appartient la proprit et au souverain lempire. Public domain isnt really
a domain in the feudal sense; there are no simultaneous property rights. Instead, it consists of the power to govern: to pass laws
influencing the use of property, to tax owners of property, and, in exceptional cases, to expropriate property for public utility.
iii) Jurisprudence
PGQ c. Houde [1998] RJQ [C1.289]
Facts: A surveyors plan in 1847 delimits precisely the banks of the Petit-Saguenay River as well as land used by Price, ancestor of
Houde. In 1852, Price acquires the land from the Crown and runs a sawmill. According to a plan prepared for the PGQ, a fosse
saumons is found approximately 200 meters from the sawmill dock and 450 meters from the old federal dock downstream from the
sawmill. In these places, at low tide, the river is almost dry. In addition, at the date the letters patent were issued, there were several
islands downstream from the fosse which created an obstacle to navigation. However, the PGQ claims that this part of the river is
now navigable at high tide.
Issue: Who owns the riverbed (and with it, the salmon spawning ground)?
Holding: The riverbed and the fishing rights belong to Houde.
Reasoning: The navigability of a waterway is a question of fact, one which must be answered with reference to ordinary commercial
shipping (since recreational canoeing could go almost anywhere!). By these standards, the river was clearly non-navigable at the time
of the concession. This part of the river not being navigable, there are no public fishing rights Qubec law only recognizes public
domain to navigable waterways. Thus since fishing and riparian rights were not expressly excluded from the letters patent, they form
part of the concession according to the law of the time.
Ratio: Property rights granted under letters patent must be assessed using the conditions present at the time of the grant.
Facts: D rezoned 3 undeveloped residential lots that S owned in to parks. S claimed that this effectively expropriated the lots, since he
could no longer develop them, nor could he control access to them. D claimed that since S remained owner of the lots, there was no
expropriation.
Issue: Did the rezoning constitute expropriation?
Holding: Yes.
Reasoning: Tremblay and Salvas: Since rezoning reduces Ss rights over the lots to the same level as any other person in the city, his
property has been effectively expropriated without compensation. This is beyond the power of the municipality, thus the rezoning is
illegal.
Rinfert (concurring): He says exactly the same thing as the majority it isnt clear why he bothered giving reasons.
Ratio: Un rglement qui ne permet un propritaire aucun usage de son terrain nest pas un rglement de zonage mais une
expropriation.
Comment: Heres the relevant passage from the Bill of Rights It is hereby recognized and declared that in Canada there have existed
and shall continue to exist without discrimination the following human rights and fundamental freedoms, namely, // 1(a) the right
of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by
due process of law.
ii) Jurisprudence
Grondin c. Cloutier (cited in FEM): Les impenses "doivent tre incorpors l'immeuble". Elles sont "ncessaires" lorsqu'elles ont
pour but d'assurer la conservation de l'immeuble et "utiles" lorsque "non ncessaires mais qu'elles donnent une plus value."
Issue: (1) Does Ts good faith encroachment allow him to force R to sell the land on which he encroached? (2) Did R implicitly
consent to the encroachment?
Holding: (1) No (2) No.
Reasoning: Property rights are absolute, and no one can be compelled to sell their land to another except in the interest of public
utility. Thus Ts first argument must be rejected, since it fatally undermines Rs right to her property, even if the encroachment was in
good faith. a.417-418 do not apply to this case because the building is not an improvement on Rs land it benefits only T. The good
faith requirement should be interpreted narrowly as applying to possession of an immovable with an unknown defect as to its title. Ts
second argument must fail because R became aware of the encroachment only 14 years after it happened, thus there can hardly be 15
years of tacit acceptance if the encroachment was unknown to him.
Ratio: A property rights are absolute, and in the case of encroachment, even in good faith, the encroacher has a duty to completely
restore the owners property rights.
Comment: This was an extreme case, but since it was followed in the jurisprudence, CCQ articles overriding it were introduced.
Article 7: This article consecrates the theory of the abuse of rights which is recognized by both doctrine and jurisprudence in Qubec.
The abuse of rights can occur in two ways: intentional exercise of rights to harm others, or unreasonable/excessive exercise of rights,
even if the goal is not necessarily malicious. Abuse of rights should be separated from the norms of civil liability Car labus nest ni
une simple erreur ni une negligence.
Article 976: This article creates an obligation of tolerance between neighbours, and implicitly provides penalties for going beyond
what is reasonably tolerable. It codifies doctrine and jurisprudence on nuisance via abuse of property rights.
ii) Doctrine
Pothier [quoted in Lo Pilon c. St-Janvier Golf and Country Club]: Le voisinage oblige les voisins user chacun de son hritage
de manire quil ne nuise pas son voisin Cette rgle doit sentendre en ce sens que, quelque libert que chacun ait de faire ce que
bon lui semble sur son hritage, il ny peut rien faire do il puisse parvenir quelque chose sur lhritage voisin, qui lui soit nuisible.
Carbonnier [slide]: Les droits rels sont souvent pntrs de rapports personnels : de lexercice anormal du droit de proprit nat
une obligation personnelle de rparer le dommage caus aux voisins.
A classic civilian dispute on this topic occurred between Ripert (more conservative/individualist - abuse of rights is a contradiction
and cannot exist) and Josserand (more radical/ communitarian - abuse of rights can and should exist).
iii) Jurisprudence
Neighbourhood Disturbances
Ratio: (1) Lexercice de droit de proprit, si absolu soit-il, comporte lobligation de ne pas nuire son voisin et de lindemniser des
dommages que lexercice de ce droit peut lui causer. Cette obligation existe, mme en labsence de faute, et rsulte alors du droit du
voisin lintgrit de son bien et la rparation du prjudice quil a subit . [emphasis added]; (2) Continues jurisprudence on nofault liability for neighbourhood disturbances in Qubec.
Comment: Article 406 of the CCBC reads Ownership is the right of enjoying and of disposing of things in the most absolute manner,
provided that no use be made of them which is prohibited by law or by regulation.
Judicial History: Trial judge found no fault on the part of CSL, but stated that 976 created a no-fault nuisance regime and found CSL
liable on that ground. The Court of Appeal ruled that 976 gives rise to real rights, rather than personal ones and found CSL liable
under 1457 (CA was also inconsistent about the role of fault).
Issue: Is CSL liable for the nuisances suffered by B and C (and the rest of the class action group) and on what grounds?
Holding: CSL liable under article 976s no-fault regime.
Reasoning: The Court first explains the application of fault-based (a1457) regime to troubles de voisinage, then rejects the propter
rem (real right) interpretation of a976 used by the Court of Appeals, then lays out its interpretation of a976 as a no-fault, personal
obligation.
a1457 imposes an obligation to act reasonably and within any legislative norms that apply to ones immovable property. This
obligation imposes a duty of means and applies only if a fault is committed by one party. Although a1457 can apply to troubles de
voisinage, CSL did not commit any fault, and thus cannot be liable under a fault-based regime.
On the CAs propter rem theory, the Court notes that 976 is activated by the inconvenience suffered by the victim. Hence it is
designed to protect people, not property, so it would be ridiculous to say that the right attaches to the immovable (real right) rather
than its occupant (personal right). The CAs theory also raises a practical problem if a976 gives real rights, this would prevent
recourse by tenants and occupiers. It would also make class action lawsuits virtually impossible. Finally, the CAs theory was never
discussed by the minister or the CCQs drafting commission.
a976 is held to be a no-fault regime, based on its location in Book 4 (separate from fault-based civil liability), the Ministers
comments that it was inspired by jurisprudence and the strange way in which it is written. Thus judicial notice must be given only to
results, rather than conduct the only question of interest is whether the victims annoyances exceed what is reasonable given the
circumstances. In this case CSL is clearly causing abnormal inconveniences to its neighbours. Hence it is liable under a976.
Finally, the Court notes that the law establishing CSL was not precise enough to grant immunity to civil liability, that CSL
cannot claim prescription and that the term neighbour should be broadly defined. They also confirm the trial judges methods of
calculating damages.
Ratio: Two liability regimes exist in Qubec to regulate les troubles de voisinage: one is the droit commun of fault-based liability,
either abuse of rights (a7) or violating norms of conduct (a1457+statutes on property use); the other is a no-fault regime enshrined in
a976. a976 is activated by the victims abnormal annoyance, even in the absence of fault and in spite of the nuisance-causing partys
best efforts to prevent injury.
Comment: The first paragraph of the judgement is beautiful one of the writing team (LeBel-Deschamps) is a poet.
Abuse of Rights
See also Amexco, Lo Pilon for abuse of procedural rights.
Facts: A asks for the annulations of a servitude on his property allowing R to access Rs home via a path along the north side of As
property. This servitude included a path 10 feet wide, but extended a total of 30 feet in to As property. R began expanding and
reinforcing the path to a distance of 15 feet in order to allow construction equipment to enter his property. A claims that the servitude
was a personal right which was extinguished after the house was sold to him, and that in any case, since R never left the path, the
scope of the servitude should be reduced to 10 feet, preventing R from expanding the path. R claims that the servitude is a real right
and opposes the reduction in the size of the servitude, claiming he should benefit from a scope of 15-20 feet.
Issue: (1) Was the servitude a real or personal right? (2) What is the reasonable width of the servitude?
Holding: (1) Real (2) 15 feet.
Reasoning: Even if the contract relating to the servitude is not clearly written from a judicial standpoint, by giving words their usual
and ordinary meaning, it is clear that the servitude was intended to be a real right. Rs expansion of the path to 15 feet gives him a
right to a servitude of that width, but no wider. Thus the scope is reduced to 15 feet.
a916 Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law.// No one
may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by
succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself
property of legal persons established in the public interest that is appropriated to public utility.
Succession and contract are largely beyond the scope of this course, and also less exciting from a DDB perspective, so this chapter
concentrates on possession/occupation, accession and prescription. Contract and succession apply to both real and personal rights.
Accession applies only to ownership, prescription/occupation apply to all real rights (including ownership). Extinctive prescription
can apply to personal rights.
5.2.1 Occupation
Occupation is like possession: physical control exercised over an object with intent to become property-holder. Unlike possession,
there is no previous owner the thing belonged to no one (wild animals, res derelictae).
a914 Certain other things, being without an owner, are not the object of any right, but may nevertheless be appropriated by
occupation if the person taking them does so with the intention of becoming their owner.
a935 A movable without an owner belongs to the person who appropriates it for himself by occupation.// An abandoned movable, if
no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State.
a936 Immovables without owners belong to the state (So they cant be occupied).
a939 Lost/forgotten movables are prescribed, not occupied.
5.2.2 Detention
Detention means physical control over an object without intention of possessing it (corpus but not animus). It can include acts like
conservation/maintenance and enjoyment of the good, but there must be no intent to own it. Ex: Holding a friends cat while theyre
on vacation, keeping goods pledged as securities against a loan, test driving a car, etc.
Private Law Dictionary and Bilingual Lexicon: Biens: Rem. 1 La matrise effective de la chose peut, afin quil y ait dtention, se
manifester par diffrents types dactes matriels, tels des actes de prhension physique, de conservation, de transformation, ou encore
des actes de jouissance (par ex., percevoir des loyers). 2 On soulve la notion de dtention lorsquil sagit de dterminer si une
situation de fait peut ou non tre qualifie de possession 4 En labsence de volont par le dtenteur de se comporter comme le
titulaire du droit rel portant sur la chose, on qualifie la dtention de dtention prcaire ou de simple dtention. 5 La thorie portant
sur la dtention a surtout t labore en regard des choses corporelles, meubles ou immeubles. Toutefois, il convient de noter que,
dans le Code civil du Qubec, lnonc du droit relatif la possession fait largement rfrence lobjet de celle-ci comme un bien
plutt quune chose.
a923 If you acknowledge the existence of a domaine suprieure, such as in a rental contract, you renounce your right to possession
and have only detention.
a941 detention of found objects.
a1592 detention of objects held in guarantee of debts.
a2913 Detention does not serve as the basis for prescription, even if it extends beyond the term agreed upon.
5.2.3 Possession
i) Introduction
a921 Possession is the exercise in fact, by a person of a real right, with the intention of acting as the holder of that right.// The
intention is presumed. Where it is lacking, there is merely detention. [this presumption is obviously rebuttable! Mike]
Whereas property is a legal right, possession is a matter of fact. Over time, possession is transformed in to ownership via prescription
(see below). Moyse: On donne prsance la ralit. Possession can apply to incorporeal goods, in which case it is dealt with under
the heading of quasi-possession.
Possession has two elements: corpus (physical control of object) and animus (intention to become property holder). This intention is
presumed under law (a921). There is also the presence of a previous owner, although this may not be known to the possessor. Corpus
can be exercised by intermediaries, such as when a tenant occupies an apartment for a landlord (a923).
Interversion of title (a923) means that someone who was detaining property has decided that he intends to possess it. He is attempting
to transform his animus in to that of a possessor. a2914 explains how titles are inverted.
Essays on the Civil Codes (Landy and Caparros): Where possession is precarious, however, it may be cured only by interversion of
title, which supposes a firm, public and proven intention of a person to henceforth act as an owner.
included a servitude on his property allowing plans to fly over it. L argues that the establishment of such a flightway constitutes a
violation of his right of ownership and full enjoyment of the property, since he owns everything above and below his land.
Issue: Does ownership over land extend to ownership of the airspace above the land by accession?
Holding: No.
Reasoning: a414 of the CCBC states that the owner of the soil is also the owner of what is above and what is below, a principle
going back to French customary law of the Middle Ages. This principle was created at a time where no one could foresee modern
technological developments, and modern doctrine/jurisprudence in other countries has tended to restrict it. In addition, air is res
communis and thus not susceptible to ownership by anyone, let alone accession or expropriation. Airspace occupied by a building is
part of a persons property, but only by virtue of its physical incorporation in to an immovable.
Ratio: (1) Air and space are not susceptible to ownership and fall in to the category of res communis. (2) Ownership of air space over
land is limited to that which he can possess or occupy for the enjoyment of his land, such as the airspace occupied by erecting a
building.
1009 Ownership has two principal special modes, co-ownership and superficies.
1010 Definition of co-ownership. Definition of divided and undivided co-ownership.
Table by me, rather than copied from Dorian Needham for once!
Co-Ownership
Indivision
Divided Co-Ownership (Condos)
Other kinds of
Undivided Co-Ownership
Indivision*
*These are non-ownership rights like personal rights or dismemberments, so putting them under co-ownership is misleading!
6.1.1 Nature/Creation
i) Code Articles
1012 Created by contract, succession or judgement or by operation of the law.
1013 Partition of property (divided co-ownership or individual ownership) may be postponed in up to 30-year renewable periods.
1014 Publication required to be opposable.
1519 Obligations are divisible unless otherwise specified in the contract or if the nature of the object of the obligation prevents this.
ii) Doctrine
The Law of Real Property (Marler) [C2.107]: Defines indivision as A thing belonging to several persons is stated to be in
indivision when the right of each of them is in the whole and each part of the thing, and not in a definite portion of the thing itself. The
right of each of the several persons is expressed as a fraction [of the thing] It is the right of property which is divided between the
co-owners; the thing itself is undivided.
Lindivision (Cantin Cumyn) [C2.113]: Indivision can apply to any patrimonial right. Undivided co-ownership is merely one kind
of indivision. Use of the two terms as synonyms is incorrect. Indivision has approached the judicial regime for partnerships in many
ways, (management, duration, representation, etc.) but a fundamental difference between the two remains, which is the positive goal
of the partnership. Indivision has as its goal the joint enjoyment of property only. It is conceivable that large portions of the regime on
indivision can be avoided by contractual stipulation. Criticizes a1018 [118], a1125-27 [120]. On peut douter que la rglementation
suffise alors contrer la mauvaise volont de lindivisaire qui na plus personnellement intrt rester en indivision.
iii) Jurisprudence
RCR de la STCUM c. Bandera, [1997] RJQ [C2.121]
Facts: S granted money to Trust General to invest in hypothecs. TG loaned $14 million to a company, of which $4 million were from
STCUM, the rest from TG. This loan was guaranteed by a $14 million hypothec. Trust General was bought out by Banque Nationale
du Canada, which then sold the $10 million portion of the loan to B for $4 million. S attempts to pre-empt the sale by claiming that the
hypothec was held in indivision, which would allow S to use a1022 to block the sale by paying $4 million.
Issue: (1) Can indivision apply to personal rights? (2) Is the loan held in indivision?
Holding: (1) Yes (2) No.
Reasoning: The loan from TG was a personal right, but the hypothec attached to it is an accessory real right. Thus under a904 S
exercises a real right. However, the loan itself can also be subject to indivision (although not undivided co-property) since the regime
on co-ownership is in fact broader than it first appears (see discussion at the start of this section). Thus it is possible for the loan itself
(rather than the hypothec) to be held in indivision. Applying these rules to the facts of the case, it is clear that the debt was divided,
rather than undivided. Debts can be held in indivision, but this must be stipulated, since the CCQ presumes that sums of money are
divisible.
Ratio: (1) Indivision and co-ownership are separate concepts; (2) The regime of indivision can apply to personal rights as well as real
ones.
6.1.2 Administration
i) Code Articles
Use of Indivision
1015 Shares are presumed equal (but obviously this is rebuttable!)//Each owner has exclusive rights over his own share. Can sell or
hypothecate it. Creditors can seize it.
1016 All co-owners can use property as long as they dont affect the destination or the rights of the other owners.
1017 Accession. 1018 Fruits and revenues. 1019-1020 Costs.
Sale of Indivision
1020 Partition prior to the end of the indivision agreement cant be set up against creditors.
1022-1024 An undivided co-owners can block acquisition of shares in the undivided property by third parties by buying them.
Administation
1025 Joint administration.
1026 Decisions are taken by majority of both owners (50%+ of the natural/moral persons who hold shares) and shares (that majority
of owners must own 50%+ of the shares)// Decisions to alienate or partition the property, or to charge it with a real right or change the
destination/make substantial alterations require unanimous approval.
End of Indivision
1030 Partition may be demanded at any time, unless postponed by agreement, or as a part of a will or due to legal judgements.
1031 Special exception for mainly residential buildings. Can terminate at any time with 75% of owners and 90% of shares.
1032 Court can postpone partition to avoid losses for two years.
1033-1034 Other owners can buy out one co-owner who objects to co-ownership.
1036 Indivision and loss of the property
1037 Indivision ends if the property is sold or partitioned.//In case of partition rules from Book 3: Succession apply.
ii) Jurisprudence
Harel c. 2760-1699 Qubec inc., [2000] RJQ [C2.128]
Facts: Hs husband had debts to 2760-1699. As a result, his (undivided) part of the family home was seized and sold at auctions. H
had never published her address at the registry, so she did not learn of the sale until after it took place. She invokes 1022.
Issue: Can 1022 be invoked after the sale, or does 1023 prevent her from using 1022?
Holding: 1022 and 1023 are separate and distinct regimes for blocking the sale of shares in indivision. 1022 applies.
Reasoning: 1022 and 1023 are not mutually exclusive, and in fact they each target different factual situations. 1022 applies if the
person becomes aware of the sale after it takes effect, while 1023 applies before the sale is made. H does not fall under 1023, but 1022
applies to her case, since sale by law is still acquisition of the share via onerous title.
Ratio: 1022 and 1023 are complementary regimes.
Holding: Half.
Reasoning: The proof revealed that Cw took care of daily living expenses. Cw thus paid a significant amount of money towards their
common well-being. This balances out Cms payment for the house. Furthermore, the law presumes that undivided co-ownership is
held equally. Given the division of expenses and the fact that Cws name was listed on the title of the house, Cm must prove that equal
ownership was not intended and he failed to do this.
i) Code Articles
1002-1008 Covers very specific stuff about walls, ditches, hedges and fences. No general provisions of any kind.
Note: These articles are not in the Special modes of ownership section in fact they are in a section called Special rules on the
ownership of immovables which seems mostly concerned with property rights restrictions due to les troubles de voisinage. Which
somewhat undermines doctrinal arguments about their scope.
ii) Doctrine
The Law of Real Property (Marler) [C2.143]: When indivision is destined to last and a partition may not be demanded, the indivision
is forced. The cases of such indivision may be divided in to three groups: common walls/hedges/ditches; apartments owned by
different owners in the same building; immovables perpetually destined to serve two or more immovables, like irrigation works,
courtyards, wells, lanes and private roads. Expenses for such property is divided between the co-owners in proportion to their rights in
the common property. The owner may abandon his rights to the thing and thereby liberate himself from (propter rem) obligations as a
co-owner. Such property may not be partitioned, since the nature of the thing prevents this. Since the co-ownership arises from the
common propertys relationship to several immovables, only the owners of those immovables are a co-owner (so not their tenants,
etc). This right cannot be transferred to another immovable.
Le doit civil canadien (Mignault) [C2.143]: Mitoyennet is a broad concept, even if the Code itself only speaks of walls and hedges.
It can be applied to any immovable whose destination is mityoenne.
iii) Jurisprudence
Meneghini c Zambito-Orazio, [1999] RDI (CA) [C2.136]
Facts: Two neighbours have a common wall which requires repairs. M renounced his right to wall. ZO had the wall repaired and sent
M half of the bill. M refused to pay. So ZO took the obvious and reasonable route, and had Ms goods seized in payment.
Issue: Does Ms renunciation absolve him of any debts related to the wall?
Holding: Yes.
Reasoning: M renounced his right to the wall before the repairs were made. Thus at the time they were undertaken, they were not
repairs to Ms property, so ZO do not have a claim on Ms goods.
Ratio: From the moment of renunciation of co-ownership, the former co-owner is no longer indebted for the common property.
Comment: Importantly, M denied that he owned the wall from the beginning. Only after a judgement stating that the wall was
common property did he attempt to abandon it. So he could be seen as having abandoned his property rights from the beginning.
6.2.1 Nature/Creation
Establishment and Declaration
1038 Established via publication of declaration.
1039 Legal personality, Syndicate.
1041 By relative value. Relative value must be specified in the declaration (no presumption!)
1052 Declaration must include act constituting co-ownership, bylaws and description of fractions.
1053 Constituting act must specify destination of immovable as well as exclusive and common parts.
1056 No restrictions on co-owners unless justified by the destination, characteristics or location of the immovable.
1057 Bylaws apply to lessees if they are given a copy.
1058 No timeshares allowed unless specifically included as a possibility in the constituting act.
6.2.2 Administration
1042-1051 Explains common/private fractions, use thereof, etc.
1063 Co-owners have free disposal of private and common fractions as long as they observe bylaws and do not disturb others.
1096, 1097, 1098 Voting procedures for various kinds of decisions.
1096 Simple Administrative Decisions (majority of co-owners present at meeting. Only one specifying at meeting!)
1097 Purchases/sales by syndicate, work on common portions, creation or modification of shares in syndicate (50% of
owners with 75% of shares)
1098 Changing the destination of the immovable or adding time shares. (75% owners with 90% of all shares)
1101 Cannot derogate from voting procedure in CCQ
1108 Ending co-ownership 75% of owners representing 90% of votes.
conditions en vue desquelles un copropritaire a achet sa fraction), et collectifs (la [manire dans laquelle] destination reprsente la
sauvegarde de lintret gnrale des copropritaires), en tenant compte de lensemble des faits, incluant la dclaration de coproprit.
(quoted in Wilson) Gagnon, La coproprit divise [C2.158]: La destination de limmeuble est sans doute lune des notions les plus
importantes en matire de coproprit divise en ce quelle constitue la limite des droits individuels en mme temps quelle assure
lultime protection
si (comme cest apparemment le cas) ils ont accept les rgles sans les avoir lues. Ils ont ensuite rejet la mesure
daccommodement propose par les copropritaires, en loccurrence lutilisation dune souccah commune dans les jardins de
limmeuble, parce que cette proposition ne satisfaisait pas entirement leurs opinions religieuses,
6.2.4 Multiproperty/Time-Sharing
a1058 Ban on time shares unless expressly approved in co-ownership creation document
a1098 Authorizing timeshares is as hard as changing the destination of the building
Disposition Transitoires a56 deals with application of a1058 to pre-existing time shares
Not formally dealt with or regulated, but the possibility is recognized. Dealt with purely under the framework of divided coownership. So its not clear what happens if a group buys a single house and they want to share full use of the house (undivided coownership?).
Cantin-Cumyns article De lusufruit, de lusage et de lhabitation at C.231 also discusses time shares.
ii) Doctrine
The Law of Real Property (Marler) [C2.170]: Definition the right of superficies is a right of ownership in the buildings, trees or
plants, on the surface of an immovable of which the soil belongs to another. This right is a derogation from CCLC 414 and largely a
judicial creation. Note that the owner of the soil retains full property rights, which he may exercise as long as he does not interfere
with the superficiary. The same applies to the superficiary.
iii) Jurisprudence
Explicit/By Agreement
Must be published to be opposable (Morin being an exception!)
a contrat de louage and there is no mention of dominant land. To decide between the last two options, the tribunal must analyze the
intention of the parties. Past cases with contracts similar to this one suggest that it is a superficiary right. Yet the prescriptive period
was filled, thus either way the droit de coup was legitimately held by FG and transferred to YG.
Dismemberments carve real rights out of the owners property rights and transfer them to non-owners. What is transferred is some
combination of usus and fructus (transfer/renunciation of accession creates a superficie). Abusus is never transferred and is always
retained by the owner (referred to as the nu propritaire or bare owner in such cases). Dismemberments are real rights that place a
person in to a direct, unmediated relationship with a piece of property.
A word about (real/personal) servitudes. All dismemberments are servitudes, since they grant direct and universally-opposable power
over an object. What distinguishes real and personal servitudes is the relationship that grants this power. In the case of real servitudes,
the relationship is between two immovables, and the benefits/obligations apply to the owners of each of the immovables. In the case
of personal servitudes the name is a bit misleading, since the relationship is between a person and an immovable (rather than person to
person, which would be a personal right/contract!). Usufruct, use and emphyteusis are all personal servitudes. This fits with
Mignaults definition of a servitude as Une charge et un droit.
Dominant land Real servitude Subservient land
Holder of right Personal servitude Object/property
Private Law Dictionary and Bilingual Lexicon (Biens): Dmembrement: Droit rel qui ne confre son titulaire quune partie des
attributs du droit de proprit. Alors que la perptuit du droit de proprit simpose comme la seule rgle de dure compatible avec
la notion de proprit, la diversit des dmembrements, qui, selon leur contenu, portent une atteinte plus ou moins forte au droit de
proprit, sont susceptibles dobir des rgles de dure diverses (Cantin Cumyn, (1988) 48 R. du B. 3, p. 15). Rem. 1 On
distingue parmi les dmembrements de la proprit les servitudes personnelles (par ex., lusufruit, lusage) et les servitudes relles
(par ex., le droit de vue). 3 Outre lusufruit, lusage, la servitude et lemphytose qui sont les dmembrements nomms du droit
de proprit, dautres droits rels de jouissance ont t admis, tel le droit de coupe de bois. Des lois particulires prvoient aussi des
dmembrements du droit de proprit (par ex., art. 9, Loi sur les mines, L.R.Q., c. M-13.1).
Cantin Cumyn (quoted in Cadieux) [208] : Il est lessence de la servitude personnelle quelle consiste en un droit que son titulaire
exerce directement et dune manire autonome sur la chose dautrui: elle droit tre un droit rel de jouissance de la chose dautrui.
order to extinguish it against the will of the owner (since its a property right and no one can be forced to sell property), but the CCQ
now allows this! He notes that servitudes do not require property to be contiguous.
.
Moyse [slides]: Les obligation de faire ne peuvent tre quaccessoire dans le cas des servitudes (obligations relles : 1178. Une
obligation de faire peut tre rattache une servitude et impose au propritaire du fonds servant. Cette obligation est un accessoire de
la servitude et ne peut tre stipule que pour le service ou l'exploitation de l'immeuble). La servitude relle ne doit pas imposer
quelque obligation de faire que ce soit au propritaire du fonds grev. Or, en lespce, le but mme de la clause est dobliger chacune
des parties offrir son immeuble lautre partie avant de vendre un tiers.La disposition forme une relation juridique entre deux
personnes et non deux immeubles.
iv) Jurisprudence
Whitworth c. Martin, [1995] RJQ CA [C.203]
Facts: M has property that can only be reached by taking a public road, then transferring to a private road (Lower Road) then another
private road (Upper Road). The Lower Road is on Ws property and W has prevented M from using it for some time. This forces M to
park his car on a neighbours lawn and hike uphill to reach his own property. M asks for recognition of a servitude of passage on Ws
property. W claims that M has access to his property already through his neighbour, so the servitude should be on the neighbours
property and that since the Upper and Lower roads are private roads, the rules for servitudes of right of way do not apply.
Issue: (1) Does M have a servitude on Ws property allowing him to access his property?
Holding: Yes.
Reasoning: Ms property is clearly an enclave in the sense of the law. This is clear from the geography of Ms property and also the
fact that the route through Ws property has been used for decades, which creates a presumption that the road through Ws property is
the most natural route. The uphill hike from his neighbours lawn is clearly not a natural way of accessing his property. And the upper
and lower roads are clearly public roads in the sense of the CCQ since they permit access to a road that is actually public. Thus M has
fulfilled all the criteria to gain a legal servitude.
Ratio: (1) Use of a given access route can create a presumption that it is the most natural and convenient access point; (2) Public
road is to be defined widely.
jouissance (art. 1151 C.c.Q.). La stipulation dune obligation relle doit tre rattache un droit rel dont jouit le crancier puisque
cest cette condition quelle doit son caractre rel (Cantin Cumyn, (1986) 46 R. du B. 3, n 52, p. 38). Rem. 1 On distingue
lobligation relle dorigine lgale de lobligation relle issue dun acte juridique, notamment du contrat. Relativement cette
dernire catgorie, lopinion dominante ne qualifie dobligation relle que celle qui a un rapport suffisant avec lexercice du droit rel
au regard de sa destination. 2 Lorsquil y a transfert du droit rel auquel se rattache lobligation relle, celle-ci est aussi transmise
lacqureur. 3 Le dbiteur dune obligation relle nest tenu quautant quil demeure titulaire du droit rel auquel se rattache
lobligation. Cependant, il peut sen librer pour lavenir, notamment en exerant la facult dabandon (par ex., art. 1185 C.c.Q.). 4
Le rgime de lobligation relle reflte les proccupations qui ont men labolition du titre seigneurial; aucune obligation
sapparentant un devoir fodal ne peut tre impose quiconque (voir art. 59, Acte concernant labolition gnrale des droits et
devoirs fodaux, S.R.B.C. 1861, c. 41).
For a case involving real obligations (but on the side of benefits), see General Motors v. Kravitz in my Contracts summary (section
8.1.1).
provide you with accommodation, he remains liable to you if something happens to the apartment. A usufruct creates a direct
relationship with the object, which is unmediated by the objects owner.
ii) Doctrine
Le droit civil canadien (Mignault) [C.229]: Il existe une resemblance parfait entre le droit de jouissance de lusufruitier et le
droit de jouissance du propritaire. Lun et lautre constituent, en effet, un droit rel. Importantly, while the usufructier has the right to
enjoy the property, all corresponding obligations come along with that right. So he has no right to demand that someone else put the
property in a state that he can enjoy it. (1) The usufructier must take the thing in the state that he finds it. (2) He cannot force the
owner to repair it (although those who rent apartments can, since they hold a personal right against the landlord, rather than a real right
against the property). (3) Usufructs are movable or immovable, depending on the property to which they apply. (4) They are real
rights.
De lusufruit, de lusage, et de lhabitation (Cantin Cumyn) [C.230]: (5) Usufructs must be in existing property; a usufruct in a
house not yet built is actually a promise of sale, not a transfer of real rights; (6) The usufructs direct relationship to the property
means that the landlord has no obligations to fix or repair it, since the landlord obviously would have no obligation to repair his own
property if he was living in it; (7) Usufruct differs in a personal/contractual right to the revenues of a property, since the usufruct can
get gross revenues (rather than net), and can control the management of the property; (9) The obligations that come with the usufruct
are all propter rem obligations and can be avoided by abandoning the usufruct; (10) As an opposable real right, a usufruct takes
precedence over real rights granted later in time; (62) Usufruct carries with it a right to possess [technically, the right to detain Mike]
the property that is the same as the owner.
Real Property (Marler) [Slides]: Usufruct is a temporary real right in a thing, putting the usufructuary in a direct and immediate
relation with the thing, without the intervention of a debtor or other person, making the thing his as regards the enjoyment, and
entitling him to follow the thing into whatever hands it may have passed
Private Law Dictionary and Bilingual Lexicon: Biens (Slides): 1. (Biens) Droit rel dans la chose dautrui confrant temporairement
son titulaire, lusufruitier, la facult den jouir et den percevoir les fruits et revenus, charge den conserver la substance. Il
ressort de la dfinition de lusufruit [] quil est essentiel que deux personnes soient en mme temps titulaires de droits distincts sur
ce qui fait lobjet de lusufruit (Cantin Cumyn, Droits des bnficiaires). Rem. 1 Lusufruit confre deux des prrogatives de la
proprit, lusus et le fructus, mais non labusus Quant sa dure, lusufruit est temporaire et il est prsum viager.
iii) Jurisprudence
Larocque c. Beauchamps, [1975] RJQ CS [C.233]
Facts: A man, R, dies and leaves his house to his relatives. However, he also granted B a usufruct in the house for as long as she lived
and as long as she paid certain upkeep costs on the house. The relatives take out a loan from L, which is secured by a hypothec on the
house. They default on the loan, L has the house transferred to her ownership by judicial declaration and wants B to leave. B claims
her usufruct allows her to stay in the house. L also alleges that B failed to pay some of the upkeep costs.
Issue: (1) Did Ls seizure of the house hypothec extinguish Bs usufruct? (2) Did Bs failure to pay costs extinguish her ususfruct?
Holding: (1) No (2) No.
Reasoning: Bs usufruct predates the judgement giving L ownership over the house, thus the judgement does not extinguish the
usufruct. Furthermore L can only seize the rights held by her debtors; she must take the house as charged with the usufruct. Bs failure
to pay certain costs is not enough to extinguish the usufruct either; failure to uphold usufructory obligations creates a personal right to
reimbursement for the missed payments. It does not extinguish the usufruct.
iv) Quasi-usufruct
Quasi usufructs are usufructs placed on consumable property (see section 3.3.2, above). They have a modified legal regime to account
for the fact that consumable property cannot be used without deteriorating/being used up. Thus separating usus and fructus is
impossible. So a quasi-usufruct is actually a transfer of property rights in full to the quasi-usufruitier, along with a personal obligation
to repay the owner.
a1127 The usufructuary may dispose, as though he were its owner, of all the property under his usufruct which cannot be used without
being consumed, subject to the obligation of returning [equivalent property at the end of the usufruct].// If return is impossible, cash is
allowed instead.
a1128 The usufructuary may dispose, as a prudent and diligent administrator, of property which, though not consumable, rapidly
deteriorates with use. // Cash value of property used up must be paid at end of the usufruct.
Rpertoire de droit: Biens (Cantin Cumyn) [C.235]: Le quasi-usufruit nopre donc pas un dmembrement : il transporte le droit de
proprit au quasi-usufruitier et le rend simultanment dbiteur du nu-propritaire. La crance de celui-ci nait lors de la constitution
du quasi-usufruit bien quelle ne soit pas exigible avant lextinction de lusufruit. She also argues that the parties to a contract of
quasi-usufruct can designate property as consumable and thus subject to the rules of quasi-usufruct rather than the normal regime.
Additionally, a quasi-usufruct can apply to some parts of the property transferred as part of a usufruct (example: a store plus the goods
in it; store=usufruct, goods=quasi-usufruct since you need to be able to sell them).
Private Law Dictionary and Bilingual Lexicon: Biens [Slides]: Quasi-usufruit: Usufruit portant sur une chose consomptible
Rem. 1 Lusufruit proprement dit confre son titulaire lusus et le fructus mais non labusus, car lusufruitier doit conserver la
substance de la chose soumise son droit. En revanche, le quasi-usufruit confre son titulaire toutes les prrogatives du droit de
proprit, car on ne peut se servir de choses consomptibles sans les dtruire ou les aliner. Le quasi-usufruitier acquiert donc la
proprit de ces choses, charge de rendre des choses semblables ou leur valeur la fin de lusufruit (art. 1127 C.c.Q.). 2 Le quasiusufruit nexiste pas ltat isol, mais loccasion dun usufruit tabli sur une universalit dans laquelle se trouvent des biens
consomptibles.
iii) Jurisprudence
Cohen c. Minister of National Revenue, [1968] BR [C2.191]
Facts: C and another acquired an emphyteotic lease on property owned by the Seminary. The lease contained a number of unusual
provisions for an emphyteotic lease (see reasoning, below). This resulted in unclear tax rules, so the case went to court.
Issue: Did C own the building erected on the Seminarys land, or were they merely leasing it under an emphyteotic lease?
Holding: They were owners of the building via superficie, since the emphy. lease contract granted them ownership of the building.
Reasoning: Emphy. leases are real rights. This lease is an unusual one in that it grants the lessee the right to destroy the building
constructed on the land provided that he erects another one worth $500,000 or more. Furthermore, the wording of the lease implies
that the buildings erected by the lessee become the property of the lessor only at the end of the lease, rather than immediately, as
would be the case under a normal emphy. lease. Furthermore, the contract specifies that at the end of the lease, the Seminary shall
have the right to purchase the building then erected on the land. This is in stark contrast to a normal emphy. lease, where ownership is
transferred automatically to the lessor (for free!) when the lease expires. Thus C is both the emphy.lessee of the property and owner of
the building via superficie.
Ratio: (1) It is possible to modify, in some cases extensively, the basic rules of the emphyeotic lease.
The question asked in this section is whether there is a definitive list of real rights (a numerous clauses). The answer is allegedly
unsettled, but based on the case law, I think that there is definitely no numerus clausus in Qubec.
ii) Doctrine
Private Law Dictionary and Bilingual Lexicon: Obligations (2003) [C1.125]: The issue is [allegedly Mike] not settled in QC, and
the Code leaves open the possibility of new real rights via a.947 and a.1119. Legislation sometimes creates new real rights.
Planiol and Ripert, Trait Pratique de droit civil franais: Les biens [C2.248]: No text prohibits the creation of new real rights or
modifications of existing ones, as long as they do not contradict public order (trying to reimpose feudal-style property rights, for
example). The only limit to the types of rights which can be created is that since they are dismemberments of property, they cannot
exceed the content of property rights. Lastly, in order to be opposable to third parties, real rights must generally be published. This is
problematic if the rules for publication do not recognize innominate real rights. [I skimmed Book 9 of the CCQ and it seems general
enough to allow publication of innominate rights Mike]
iii) Jurisprudence
Duchaine c. Matamajaw Salmon Club, [1918] RJQ (CA) [C2.249]
Facts: B sold G the fishing rights in a river, but not (explicitly) property in the river-bed itself. G later sold these rights, and they were
eventually sold to M. D bought Bs property on which the river was located and contests the rights held by M. D claims that the
original fishing rights were personal, rather than real, rights and could not have been transferred by G to M.
Issue: (1) Is there a numerus clausus in Qubec? (2) If not, did the agreement between B and G create a real or personal fishing right?
Holding: (1) Unclear (2) Real.
Reasoning: Pelletier: The Seigneurial Court recognized fishing rights as a separate kind of real right. Furthermore, transfer of fishing
rights inevitably carries with it transfer of the riverbed as long as it is used for fishing. This means that fishing rights are more than a
right of use [251-252 this bit is tricky reasoning]. There is nothing in law to prevent this and it fulfills the will of the parties.
Archambeault: The right given to G is either a property right or a usufruct, or personal servitude. In any case that right is transferable
to third parties while G is alive. Since this dispute does not concern the duration of the right, there is no need to choose between the
competing theories.
Ratio: None. This judgement is contradictory, although they both agree as to the outcome.
Comment: The trial judge compared the fishing rights to a common law concept called, ironically enough, profit prendre. Every
subsequent court rejects this comparison. The status of French authorities is unclear since the authors that the judges quote here and in
the SCC are writing under a very different legal regime. The Seigneurial Courts status is also unclear, since its judgements concerned
navigable and floatable rivers.
possible to create a perpetual real right of fishing rights. This is a separable subject or incident of property in other words an
innominate real right.
Ratio: There is no numerus clausus in Qubec.
Industrial IP
Patents
Trade Secrets
Withdrawal/repentance (right to remove work from public circulation, either permanently or to make corrections/updates)
Copyright Act, 2003 [C1.224]: a3(1) Copyright applies to production, reproduction, performance, translation or publication of a
literary work. This includes adaptations from one media to another; a6 Term of CR= life+50 years; a13 first owner of CR= a)
subject of portrait/photograph/plate if they hired the author to do it, b) Employer of author, unless contract states otherwise (exception
for newspaper/magazine/periodical articles), c) in all other cases, the author; a14(1) Moral rights: right of integrity+association; a14(2)
Moral rights can be waived but not transferred; a14(3) By default moral rights belong to the author (separate from copyright!);
a14.2(2) Last as long as copyright; 14.2(2) Can be transferred to succession; 28.2(1-3) definition of infringement.
Snow v. Eaton Centre [1982]: Snow sculpted a flock of Canadian geese for the Centre. At Christmas time, red ribbons were placed
around the necks of the geese by the Eaton Centre. Snow sued, alleging that the ribbons violated the statues integrity. Snow won on
the basis of his personal opinion (subjective test) and the testimony of other artists (objective test). Section 28.2(2) of the Copyright
Act now states that any modification to a sculpture, painting or engraving is deemed to prejudice the author.
iv) Patents
Patents Act, 1985 [C1.230]: a2 invention means any new and useful art, process, machine, manufacture or composition of
matter or any new and useful improvement [to the above]; 3(a-d) information/specificity requirements for a patent; a27(8) No
patent shall be granted for any mere scientific principle or abstract theorem; a28.3 invention must not be obvious. Definition of
obvious.
v) Trade Secrets
Defined by Moyse as confidential information which has commercial value and which would lose that value if it were widely known.
Includes non-patented techniques, supplier lists, client lists and other secret information. Not technically property, even in the IP sense.
Contracts involving trade secrets and confidential information are typically written as service contracts. Confidentiality of trade
secrets must be protected by purely contractual means.
a1612 The loss sustained by the owner of a trade secret includes the investment expenses incurred for its acquisition, perfection and
use lost profit can be compensated through royalties.
R. c. Stewart (quoted in Tritex): Indeed, [confidential information] possesses many of the characteristics of other forms of property:
for example, a trade secret, which is a particular kind of confidential information, can be sold, licensed or bequeathed, it can be the
subject of a trust or passed to a trustee in bankruptcy. In the commercial field, there are reasons to grant some form of protection to the
possessor of confidential information: it is the product of labour, skill and expenditure, and its unauthorized use would undermine
productive efforts which ought to be encouraged. As the term property is simply a reference to the cluster of rights assigned to the
owner this protection could be given in the form of proprietary rights. The cases demonstrate that English and Canadian civil law
protects confidential information. However, the legal basis for doing so has not been clearly established by the Courts It appears
that the protection afforded to confidential information in most civil cases arises more from an obligation of good faith or a fiduciary
relationship than from a proprietary [property] interest.
vi) Jurisprudence
Tri-Tex Co. Inc. c. Gideochem, [1999] RJQ [C1.187]
Facts: TT alleges that G illegally acquired its confidential chemical formulas, as well as confidential supplier/client lists. TT asserts a
right of ownership over the chemical formulas and all products produced from them under the Copyright Act, and also over written
documents containing confidential information. TT initiated seizure on the basis of its ownership rights. The seizure order was upheld
for the supplier/client lists, but set aside for everything involving chemicals by the Superior Court. TT appealed to CA for the
chemicals. G appealed on the written confidential information.
Issue: (1) Does TT own its chemical formulae under the Copyright Act? (2) If yes, does it have property over the barrels of chemicals
produced from its formulae? (3) Is confidential information property?
Holding: (1) No (2) N/A, but even if 1 was true, the answer would still be No (3) No.
Reasoning: Copyright was never meant to apply to an idea or information (the former being the proper subject of a patent, the latter of
trade secret regulations). The court cites Moreau v St-Vincent: the author has no copyright in ideas, but only in his expression of
them the ideas are public property, the literary work his own. The fact that the formulae were written or stored in computers does
not change their status as ideas and not literary works.
With respect to the chemical products, the court quotes SCC on Cuisenaire in which it was held that copyright protects the
expression of an idea, but not the effects of idea itself (i.e. the copyright on a cookbook does not extend to the meals made from its
recipes).
With respect to written confidential information, the court notes that jurisprudence and doctrine are divided over the issue of
confidential information as property. However, since Tri-Tex failed to prove that confidential information is movable property, its
action fails. [p.197-198]
Comment: The relevant CCP articles are reproduced below. Emphasis added.
733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to
fear that without this remedy the recovery of his debt may be put in jeopardy.
734. The plaintiff may also seize before judgment the movable property which he has a right to revendicate.
ii) Legislation
Indian Act [C1.315]: s2 Defines reserve; s18 Federal Government is the owner of the reserves land and holds that land in trust for
the band; s20 Members of the band cannot own the land individually, since its collective property; they can only possess it; s24 InterIndian transfers are okay with Ministers approval; s28(1) Indian to non-Indian transfers, sales or leases are void (2) Not void with
approval of Minister and band council; s29 reserves not subject to seizure; s36 Reserves not vested in the Crown (?); s88 Provincial
laws of general application apply to Indians unless they contradict treaty rights or the Indian Act itself.
Canadian Charter of Rights & Freedoms [from Constitutional Law]:
25. The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal,
treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
iii) Jurisprudence
Background Cases
Gurin v. R (1984) [from Constitutional Law]: Aboriginal title is sui generis and does not depend on the Royal Proclamation of 1763.
It arises from the historic occupation by aboriginals of their native lands. The underlying title is held by the (federal) Crown, and
aboriginal title is a charge in favour of the band on the title. Aboriginal title is a collective right. The result of all this is that the land is
exclusively occupied by the band and may only be sold/ceded/rented to the Crown. Because of this the Crown has a duty to ensure the
land sold/ceded to it is used so as to benefit the band. In failing to uphold this duty, the Crown becomes vulnerable to similar penalties
it would suffer for violating a private law fiduciary duty.
R v. Sparrow (1990) [from Constitutional Law]: s25 of the Charter protects aboriginal rights existing in 1982. These rights cannot be
extinguished or regulated by either level of government unless justified by a specific public policy grounds. The government has a
semi-fiduciary duty in its interactions with natives.
R v. Van der Preet (1996) [from Constitutional Law]: Aboriginal rights are different from other Charter rights because they are given
to aboriginals because they are aboriginals. Such rights exist when it can be shown that they were an integral and distinct part of the
bands culture at the time of European contact. The way in which rights are exercised may evolve over time - s25 did not have as its
intended effect freezing native rights in a particular form, nor does it force natives to use outdated traditional methods against their
will. Section 1 of the Charter does not apply to section 25, but governments may infringe aboriginal rights if they have a compelling
and substantial motivation, which must be specific rather than general (i.e. public interest is not enough).
The Van der Preet test is applied as follows: (1) determine the precise content of the right being claimed (right to fish is too
general right to fish in Lake X is specific enough) (2) Was the practice an integral and distinctive part of the bands traditional way
of life at the time of contact with Europeans (effective European control in the case of Mtis)? (3) Was that right extinguished? (4) Is
the infringement justified by a specific compelling and substantial public policy concern?
Coursepack Cases
Ratio: (1) Treaty rights granted by the Federal government can be used to oppose provincial laws under s88 of the Indian Act; (2)
Qubec Civil Law does not apply to disputes over aboriginal rights; (3) Aboriginal title may be exercised outside of lands over which
aboriginal title is exercised.