BOOK REVIEWS
COMPTES RENDUS
Proposals for a Securities Market Law for Canada. By Philip Anisman.
with Warren M.H. Grover, John L. Howard and J. Peter Williamson. Volume
I, Draft Act; Volume II, Commentary; Volume III, Background Papers.
Ottawa: Government of Canada, Dep’t of Consumer and Corporate Affairs,
1979.
I. Introduction
This three-volume study signifies that securities regulation, as
a separate area of law in Canada, has come of age. Moreover, it is
an indication that the study and reform of Canadian business law
have rapidly progressed to a high level of sophistication in the last
decade.
The Proposals for a Securities Market Law for Canada (herein-
after “the Proposals”),
like the Proposals for a New Business
Corporations Law for Canada1 produced by the same department
ten years ago, analyze thoroughly existing legislation, jurisprudence
and administrative practice, recognize unique Canadian economic
conditions, borrow generously and appropriately from various juris-
dictions, particularly federal legislation in the United States, and
set forth for public debate a clear and cogent draft bill with detail-
ed commentary. In sum, as an exercise in technical law reform the
Proposals are commendable. They are also essentially conservative
and organic in that they refine existing legal principles rather than
strike bold new approaches. Yet in this derivative approach the
Proposals reach a high level of precision and clarity.
As a unilateral venture by the federal government into the field
of policy-making, however, the practical success of the Proposals
is more questionable. First, the field of securities regulation is now
occupied almost exclusively by the provinces and, though the consti-
tutionality of federal or provincial jurisdiction is unclear, the
federal government to date has made no comprehensive, sustained
attempt to assume jurisdiction. Second, this study was launched
without prior discussions with present policy-makers in the field
of securities regulation, in particular provincial officials and self-
regulating organizations. During the seven years in which the
‘Dickerson, Howard & Getz, Vol. I, Commentary; Vol. II, Draft Act (1971)
[hereinafter “the C.B.C.A. proposals”].
1981]
BOOK REVIEWS – COMPTES RENDUS
Proposals were prepared, provincial authorities have worked assi-
duously and successfully to produce uniform statutes and more
coordinated administration. This movement to improve provincial
securities regulation culminated with the adoption in Ontario of
The Securities Act, 19782 and the willingness of the other major
provincial jurisdictions to adopt essentially similar uniform legisla-
tion. Third, there has not been any groundswell of popular support
for federal intervention like that which occasioned the two prin-
cipal U.S. federal statutes, the Securities Act of 1933 and the Securi-
ties Exchange Act of 1934,4 or for broad reform like that which in
Ontario spawned The Securities Act, 19665 and other uniform pro-
vincial statutes which followed shortly thereafter. While the Royal
Commission on Banking and Finance recommended in 1964 that a
federal body govern the securities market, the years of federal
inactivity and the development of provincial administrations have
blunted the force of that recommendation. Fourth, in the current
discussions of a new constitution and particularly the distribution
of powers between federal and provincial authorities in Canada,
matters more fundamental to the good government of the nation
than a federal securities law will occupy the time of policy-makers.
The introduction of a substantial federal presence into this domain
will presumably not command high priority with federal and pro-
vincial authorities. Finally, as much as Canada now needs co-
ordinated securities regulation, duplication of administration would
be a particularly painful price to pay at this time. And in spite of
impressive efforts in these Proposals to permit concerted action
between federal and provincial regulatory bureaucracies, a degree
of duplication will nevertheless remain, and it is improbable that
provincial authorities will yield the field.
II. The study in general
The study, begun in 1973, was ably led by the Director of
Corporate Research in the federal Department of Consumer and
Corporate Affairs, Philip Anisman, who returned to academic life
at the study’s conclusion. He was joined by three eminent scholars,
Warren Grover, John Howard and Peter Williamson. These four
were assisted by twenty-seven advisers who contributed the fifteen
major background studies, published as Volume III of the Pro-
2 The Securities Act, 1978, S.O. 1978, c. 47 as am.
8 48 Stat. 74 (1933); 15 U.S.C. 77a et seq. (1964).
448 Stat. 881 (1934); 15 U.S.C. 78a et seq. (1964).
5 S.O. 1966, c. 142; The Securities Act, R.S.O. 1970, c. 426 as am.; repealed
by The Securities Act 1978, S.O. 1978, c. 47.
McGILL LAW JOURNAL
[Vol. 26
posals. This task force reflects a remarkable variety of experience
in practice, scholarship, law reform, public service and, in several
instances, technical expertise in areas of economic or technology
relevant to securities markets. The depth of this advisory team is re-
flected in the soundness of the legislative result, and the effort to
assemble this expert group and to produce such an attractive
reform proposal is cause for celebration.
III. Volume I
The first volume of the Proposals contains a draft statute
entitled The Canada Securities Market Act, and is divided into
sixteen parts. It is not radically different in size, organization and
philosophy from The Securities Act, 1978, in Ontario, although it is
of course national in scope. It forges a modest number of original
legal principles, clarifies and sharpens many of the concepts of
provincial law, and blends some of the important improvements in
securities law in other jurisdictions, particularly from the federal
Securities Code in the United States.6 At the end of each section
within the sixteen parts, the legislative analogue or conceptual
source is given. Thus one can easily refer to the specified section
of that source.
IV. Volume II
This volume, containing four hundred pages of commentary,
elucidates the purpose and background of each section in the draft
Act. The Commentary analyzes the different sources considered in
drafting: it succinctly discusses the merits and demerits of alter-
native formulations, and specifies reasons for the selection of the
particular section. In. several particularly interesting parts it sets
out minority positions of advisers, and in a few instances candidly
acknowledges that a lack of experience does not permit a clear
or easy conclusion to difficult choices.
The Commentary will serve to accomplish one of the laudable
objectives of this method of law reform, that is, to provide informed
feedback to the drafters in preparing a revision before a bill is)
introduced. This format was followed in the C.B.C.A. Proposals in
1971, with beneficial results for the statute as finally enacted and
for the practising community who had to apply it.
6 American Law Institute, Federal Securities Code (Proposed Official Draft
(1978)) as am. by A.L.I., Federal Securities Code (Supplement to Proposed
Official Draft (1978)) [hereinafter “the A.L.I. Code”]; now A.L.I., Federal
Securities Code (1980), 2 vols. & Supplement (1980).
1981]
BOOK REVIEWS – COMPTES RENDUS
The Commentary and the detailed background papers may
present an interesting evidentiary problem for judicial interpreta-
tion of future statutory provisions. Will Canadian courts use these
secondary sources as an explanation of the draftsmen’s intent (as
opposed to the evil which the particular provision was attempting
to cure), and therefore as persuasive evidence in attempts to resolve
ambiguities? The Act opts for American practice. Section 16.16 (1)
includes an express provision that legislative history may be con-
sidered.
Part I gives the title of the Act and declares its policy. The seven
subsections stating this policy identify the broad context in which
the securities market functions and the goals to be served by the
statute. Section 1.02 neatly summarizes the methods the statute
-will use to accomplish its task:
by ensuring the availability of information relating to investment deci-
sions, by protecting investors from fraudulent and deceptive conduct
and by ensuring fair competition, all of which can best be accomplished
by the creation of an independent public body to regulate the Canadian
securities market and the securities market actors over which the
Parliament of Canada has legislative jurisdiction in co-operation with
similar provincial and foreign public authorites.
Part 2 contains forty-nine different sections, many of them broken
into subsections, setting out comprehensive definitions for the Act.
These definitions borrow judiciously from Canadian and American
sources and reflect a restrained effort to glean the best lessons from
comparative study. Like many sections in the Act, they pay tribute
to the saw that “an old law is a good law”. However, they do
clarify many existing provincial law definitions.
Part 3 is the first and the most general of the exemption pro-
visions. It follows the general exempting pattern of existing pro-
vincial legislation but refines some of the definitions contained
therein. Part 3 exempts specified securities from all or part of the
Act. Part 6 exempts certain transactions from prospectus-type re-
quirements. Part 8 provides for exemptions from licence require-
ments. Finally, the Commission is empowered to make further ad
hoc exemptions.
Part 4 provides for registration of issuers and introduces an
interesting duality. First, issuers that currently meet a threshold of
sufficient public holders of their securities to permit active trading
must register under the part: they must file an annual registration
statement and fulfil their obligation to provide regular and timely
information to shareholders. Second, issuers that make a distribu-
tion, whether registered or not, must comply with prospectus and
prospectus-related requirements. This part adopts a tiering approach
to balance the need felt by investors for information and the burden
McGILL LAW JOURNAL
[Vol. 26
of compliance. The approach is modelled partly on current Ontario
provisions and partly on the A.L.I. Code, while in other respects
it is new and unique. An issuer falling below a minimum threshold
number of security holders is subject only to enforcement activities.
An issuer at an intermediate threshold is subject to all anti-fraud
provisions. Issuers at higher thresholds are also subject to registra-
tion provisions. Finally, relief from the last-mentioned obligations
may be obtained by application when an issuer falls below the
threshold level.
Part 5 deals with distribution. Its fifteen sections break new
ground and establish a more varied categorization of types of distri-
butions with briefer or more detailed information requirements
than current provincial schemes. Furthermore, it borrows from the
U.S. Code by recognizing the competence of provincial securities
acts for intra-provincial distributions and exempting these. The
sensitivity this part shows in tailoring requirements to categories
of issuers here and elsewhere in the Act will be welcomed by those
-who must comply with them.
However, in another important policy provision the Act promotes
an interventionist approach. Part 5 continues the existing pro-
vincial “blue sky” discretion of the regulator to accept or reject
a prospectus, employing the “fair, just and equitable” test from
state jurisdictions
in the United States. Moreover, it explicitly
states this test to make it clear that the Commission may rejece
a prospectus on basic grounds of fairness, whereas existing pro-
vincial acts speak mutely of the exercise of discretion to reject a
prospectus in the public interest although their administrators act
with “blue sky” authority. The Act thus rejects the less interven-
tionist model of the U.S. federal statute which, since 1933, has used
the “full, true and plain disclosure” test for accepting or rejecting
prospectuses.
Part 6 contains extensive exemptions from the prospectus re-
quirements in five sections. It does not perfectly mirror the new
provincial initiative, but strikes a more conservative position
between the new Ontario Act’s closed system and the present system
in the other provinces, itself modelled on the previous Ontario
provisions:
[it] attempts to ensure that large amounts of securities will not be sold
to public investers by means of the exemptions without prospectus
disclosure, while permitting the sale of small amounts of securities of
reporting issuers by means of anonymous sales into the market and the
sale of securities of non-reporting issuers by means of direct transactions.
[It] thus achieves a balance which avoids the imposition of restrictions
on resale of securities that do not create a risk to large numbers of
investers but which preclude the use of the exemptions as a device to
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BOOK REVIEWS – COMPTES RENDUS
accomplish a wide distribution of securities without complying with the
provisions [p. 93].
Part 7, which deals with continuous and regular disclosure
contains twenty-five sections. It requires reporting issuers to make
regular and timely reports to their security holders and to the
Commission, and imposes disclosure duties on issuers and insiders
in connection with certain transactions. It does not depart notably
from the Canada Business Corporations Act 7 and basic principles in
existing provincial acts relating to regular, continuous and timely
disclosure, proxy solicitation, insider reporting and takeover bid
regulation, but it does contain some interesting specific innova-
tions, all of which will be enthusiastically welcomed by most of
those governed by the statute. For example, on timely disclosure
it is less interventionist than the newest Ontario initiative. The
issuer makes the initial determination of whether public disclosure
of a material fact would be unduly prejudicial and, as is not the
case under the new Ontario Act, does not have to file a confidential
timely disclosure report of the event with the Commission. Rather,
the issuer simply informs the Commission that undisclosed material
information exists so that the Commission may increase its sur-
veillance of trading in the issuer’s securities. For example, the Act
adopts “a small trade” exemption, stimulated by but not identical
to U.S. Securities Exchange Commission practice empowering the
Commission to specify minimum reporting limits to remove from
insiders the obligation of reporting on a monthly basis with at-
tendant publication the insider trades of relatively minor amounts.
Finally, the Act leaves undecided the treatment of the controversial
sale of a controlling block at a premium question. The new Ontario
Act requires the purchaser to make a similar follow-up offer to
minority shareholders. The Commentary justifies the position this
way:
The impetus for the [Ontario] legislation is the apprehended loss of
confidence in the market by investers if such transactions are permitted
to occur. But the effects … are still far from clear. As a result the
draft act … leaves [this] for reconsideration in the light of the experience
under the Ontario
these
Proposals [p. 124].
legislation and the comments
received on
Of equal importance will be the experience of the Ontario Com-
mission in exercising its awesome ad hoc responsibility in dealing
with applications for what is now a rather narrowly circumscribed
exemption from the follow-up obligation. 8
7 S.C. 1974-75, c. 33 as am.
8 See The Securities Act, 1978, S.O. 1978, c. 47, s. 99. See also Re Atco Ltd,
IV International Corp. & Canadian Utilities Ltd, O.S.C. Bulletin, September
1980; Re Newsco Investments, O.S.C. Bulletin, July, 1980.
McGILL LAW JOURNAL
[Vol. 26
Part 8 contains seven sections which require that “market
actors” obtain a licence. It stands in contrast to the pattern of
provincial acts. It only requires registration of persons who carry
on business as brokers, dealers or advisers or act as underwriters,
substituting a “business” test for a “trading” test. The Commentary
concedes that the licencing requirement on market actors is pro-
bably “the most difficult element of a [federal] securities law” to
jusuty on constitutional grounds (p. 128). However, it concludes
that this requirement is necessary to a comprehensive scheme. The
detailed requirements underlying the registration provisions do not
differ radically from existing provincial law. Like their provincial
analogue they anticipate the substantial content to be found in
the regulations or policy statements by giving considerable freedom
to the Commission to alter these to meet changing needs.
Part 9 contains fourteen sections which empower the Commission
to supervise recognized self-regulatory organizations. Its purpose
is neatly summarized:
the Part, while recognizing and adopting the present Canadian scheme
of self-regulation, formalizes the procedures, particularizes the standards
for its continued functioning, and subjects the overall scheme to com-
mission supervision. In doing so, it expressly imposes on the Commission
the duty of reconciling any conflict between competition policy and the
needs of an efficient securities market and the protection of investers
and of ensuring fair implementation by the self-regulatory organizations
of their functions [p. 149].
The tone of the Commentary, coupled with several of the back-
ground studies, suggests that the theme of competition will attract
more attention in the regulations than under existing provincial
law. The concept of fair competition appears twice in the first
policy part of the Act.9
Part 10 contains eighteen sections, the purpose of which is
“to facilitate the development and implementation in Canada of
one or more book entry systems for the transfer and pledge of
securities whether or not they are evidenced by security certificates”
(s. 10.01). This reflects one further step towards the automation of
securities transactions. As the Commentary explains, “Canadian
corporation laws do not generally legitimate book entry transfers
of deposited securities or certificateless issues or transfers” (p.
174). Ontario corporations legislation, governing all securities trans-
actions in Ontario and not simply those of Ontario incorporated
companies, 0
is the modern exception, and even this provision
9 S. 1.02(e) and Conclusion.
3’ Ontario Business Corporation Act, R.S.O. 1970, c. 53, s. 91.
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BOOK REVIEWS – COMPTES RENDUS
“‘legitimates transfer by book entry of deposited securities but does
not legitimate certificateless issues or transfers” (ibid.). Further-
more, provisions authorizing trustees to deposit securities and laws
governing the functioning of a depositary are lacking in Canada,
thus requiring a maze of amendments to existing federal and pro-
vincial laws, or possibly a general enabling law in each province.
Delicately premised on the debatable assumption that Parliament
is paramount with respectto works for the general advantage of
Canada or two or more provinces, and that stock clearing agencies
are integral to a national securities market system, Part 10 will
permit (though not require) issuers to deposit their certificates
with the federal registered clearing agency or to use it in other
respects. Thus, Part 10 “provides for the immobilization of se-
curities certificates and its consequences in respect of the issue,
the transfer and the pledging of securities by book entry, and for
the protection of the interests of beneficial owners, pledgees and
execution creditors, and it also expressly declares the rights and
duties of a depository and its participants” (p. 175).
Part 11, in thirteen sections, sets out basic rules to govern trad-
ing conduct by registrants, with no substantial departures from
existing provincial regimes. While it is anticipated that the rules
of self-regulatory organizations will provide many of these pro-
visions, since membership in a self-regulatory body is not mandatory
under the Act, it is necessary that the Commission hold a residual
discretion. This part authorizes the Commission “to deal with the
activities of registrants that involve conflicts of interest, with
specific types of trading that raise issues fundamental to the
integrity of the market itself and with transactions in the over-the-
counter market that come within its jurisdiction” (p. 198).
Part 12 contains eleven sections which set out the definitions
of fraud and manipulation. Thus it brings together provisions which
are now found both in the Criminal Code’ and the provincial
securities acts. It applies to all securities other than those exempted
from the Act, reflecting the wide ambit of the statute’s anti-fraud
focus. By contrast the registration-of-issuer requirement has a
narrower application. The prohibitions of fraud and manipuration
in the part are foundation provisions allowing other parts of the
Act to deal with the consequences of breach, in particular Part 13
on civil liabilities and Part 14 on criminal sanctions. This part
admirably preserves the core principles governing fraud and mani-
pulation in existing Canadian jurisprudence, primarily derived from
British case law, but incorporates important clarifications based on
11 R.S.C. 1970, c. C-34, s. 340.
McGILL LAW JOURNAL
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recent jurisprudence, academic studies and statutory reform in
other jurisdictions. In one area it demonstrates cautious restraint.
It does not attempt to deal with manipulative conduct involving
“stabilization” in connection with a distribution. It concludes that
the issue is complex and that there is insufficent legislative ex-
perience for provisions now; then it authorizes “stabilization” to
be governed by rule-making by the Commission. This is an auda-
cious delegation of responsibility analogous to U.S. practice. The
rule-making authority will permit the Commission to enact regula-
tions authorizing legitimate stabilization activities and proscribing
any other conduct that exceeds “stabilization” in connection with
a distribution.
Part 13 is one of the longest portions in the second volume,
setting out in twenty sections a comprehensive code of civil liability.
Any violation of the Act may give rise to civil liability under this
part. However, the remedies provided are varied and are tailored
to the specific type of transaction involved. This part is a consider-
able improvement on existing provincial law, not so much because
it develops sweeping innovations, but because it codifies an in-
tegrated scheme of remedies to clarify much of the ambiguity
relating to basic liability and defences in current law.
Part 14 is the criminal analogue to Part 13. It sets out in
eleven sections the Commission’s authority to initiate enforcement
activity with few innovations. This includes the initiation of in-
vestigations for detecting violations or gathering information relat-
ed to quasi-legislative and policy-making functions. It empowers
the Commission to issue “cease trade” or “freeze” orders. It permits
the Commission to apply to a court for injunctive or other equit-
able relief. The courts are given broad remedial discretion. Finally,
it permits the Commission to initiate criminal prosecutions. It at-
tempts to balance the goal of efficient enforcement of the Act and
respect for civil liberties and fair treatment of persons investigated
or otherwise affected by the Commission’s orders.
Part 15 provides twenty-five sections for the administration of
the Act. The regulatory agency is an analogue of existing Ontario
-or Quebec commissions. However, in an important gesture intended
to embrace coordinated rather than overlapping jurisdiction with
the existing provincial regimes, “it encourages the Commission
to cooperate with other government agencies, federal, provincial
and international, where its activities affect institutions regulated
by them, and permits a maximum amount of federal-provincial
cooperation both in appointments to it and in its activities”. 12
12 Commentary, 329.
1981]
BOOK REVIEWS – COMPTES RENDUS
Part 16, entitled “General”, contains eighteen provisions which
provide for the application of the Act and settles a number of
extra-territorial and conflict-of-law provisions. In deference to pro-
vincial jurisdiction, the first provision declares that the Act does
not apply to a trade that is initiated and completed in a single
province, otherwise than through the facility of a registered se-
curities exchange.13 However, the next provision cuts back modestly
on that recognition by specifying that a trade in a distribution by
a corporate issuer in a province other than its province of incor-
poration, is not initiated and completed in a single province.14
In addition to jurisdictional questions, the part also provides for
certain procedures on filing and service of documents, admission
of evidence, privileged statements, immunity from liability, records,
determination of security holders, receipt of mail documents, and
application to the Crown. Finally, it demonstrates a healthy respect
for constitutional uncertainties by providing that each provision
and part of the Act is severable. If any provision or part is struck
down, the remainder of the Act will continue in force.’5
V. Volume III
The fifteen papers which serve as background to the Proposals,
most of which are over one hundred pages in length, provide a
remarkably comprehensive analysis of Canadian securities law and
policy. They make liberal use of comparative jurisprudence, parti-
cularly that of the United States. Most of the papers culminate in
specific statutory recommendations which have in large measure
been incorporated in the proposed legislation. The 1700 pages in
Volume III will serve for years as a well-spring of interpretative
guidance to persons interested in securities regulation. Space per-
mits only the barest sketch of each paper.
Peter Williamson’s study of Canadian capital markets provides
a particularly informative economic framework for consideration
of reform proposals. It analyzes savings and capital markets in
Canada, examines their efficiency according to the three concepts
of allocational, operational and external efficiency, reviews histo-
rical rate of return patterns on stocks and bonds, sketches out the
movement toward a national capital market system in the United
States, and then assesses developments in Canada, particularly the
advent of computer-assisted trading systems in the national se-
13 s. 16.01.
14 S. 16.02.
15 Ss. 16.16, 16.17.
McGILL LAW JOURNAL
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curities market. He draws sound conclusions and policy implica-
tions for each section of his study.
Philip Anisman and Peter Hogg have written a shorter but very
important paper on the constitutional aspects of federal securities
legislation. It justifies cooperative federal involvement in securities
regulation on practical and legal grounds. In its pragmatic analysis
it argues that securities markets in Canada transcend provincial
boundaries, suggests examples of inter-jurisdictional compromise
between provincial commissions or stock exchanges necessitated
under existing law, observes that recent technological developments
reinforce the national character of Canadian securities markets
and that increasing internationalization of those markets transcends
provincial regulation. It concludes that some form of federal in-
volvement in the regulation of the Canadian securities market is
both inevitable and necessary. Some readers may conclude that this
series of factors does not establish the case for federal involvement.
The Commentary (Volume II) picks up this pragmatic justification
but it gives rise to the same doubts. It states (pp. 4-5) that coopera-
tion among the provincial commissions alone, although admirably
furthered in the past decade and useful in areas such as prospectus
clearances, is inadequate to the present task. It suggests this is
demonstrated in several recent takeover bid issues such as the
development and approval by the British Columbia, Ontario and
Quebec commissions of so-called “stock exchange takeover bids”
and the competing takeover bids for Husky Oil Limited. It con-
cludes that a nationally coordinated system of regulation that
involves cooperation between a federal commission with a federal
jurisdiction and provincial and foreign commissions is necessary:
“Only such a scheme will permit the establishment on a Canada-
wide basis of the minimum standards necessary to ensure investor
confidence in the Canadian securities market” (ibid.). It is not
entirely clear from this statement if the approval of stock exchange
takeover bids by the three provincial commissions and the events
involving Husky Oil Limited were evils to be remedied or, if they
were, how a federal authority would conclusively cure those evils.
In its legal analysis, the Anisman-Hogg study deftly traces the
history of provincial jurisdiction over securities and propounds
the basis for federal jurisdiction, in particular the power relating
to trade and commerce and works for the general advantage of
Canada under the British North America Act, 1867.16 The paper
concludes that:
1630-31 Vict., c. 3 (U.K.), ss. 91(2), 92(10).
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It may therefore enact
[The federal Parliament] has clear jurisdiction over interprovincial and
international distributions of end trading in securities and likely over the
whole of the trading market as well under its authority to regulate trade
and commerce, complemented by its power over interprovincial under-
legislation requiring disclosure by
takings.
issuers both in connection with the distribution and on a continuing
basis in regulating the stock exchanges and their members. Such legislation
might also apply directly to intra-provincial transactions and, possibly,
to market actors if necessary, to ensure its proper administration. And the
creation of civil remedies for violation of its requirements would be
justifiable on the same basis. In short, Parliament may under the trade
and commerce power alone or in conjunction with its jurisdiction over
interprovincial undertakings adopt a comprehensive scheme for the
regulation of the securities market [p. 219].
Anisman and Hogg recommend the development of a “nationally
integrated, comprehensive scheme of securities regulation for Ca-
nada through federal-provincial negotiations. Complementary legis-
lation and administration may thus be devised through the customary
means of cooperative federalism as it has developed in Canada,
including, in appropriate circumstances, the use of interdelegation”
(p. 220). It is by no means certain that Canadian courts will resolve
difficult constitutional questions in this way in spite of the obvious
attempts to permit complementarity with provincial legislation.
Frank Iacobucci’s study “The Definition of Security for Purposes
of a Securities Act” is a thoughtful and comprehensive analysis of
jurisprudence interpreting Canadian and American legislation. His
recommendations are faithfully reflected in the broad concept of
security defined in the proposed Act. These recommendations
essentially reinforce the existing provincial definitional network
but provide a welcome clarification of this crucial language.
“Disclosure Requirements” by Warren Grover and James Baillie
is remarkable for its depth. It begins with an historical analysis
of developments over several centuries in Canada, as well as the
United Kingdom and the United States, before proceeding to
examination of the purposes of disclosure requirements, expansion
of the disclosure technique by the more interventionist “blue sky”
rules, a survey of the current Canadian position of prospectus filings,
continuous disclosure and exemptions from prospectus require-
ments, before arriving at recommendations for an appropriate
Canadian regulatory pattern for disclosure and dissemination. It
recommends a tiered approach which balances the need for infor-
mation with the size of the company, proposes a more flexible type
of prospectus disclosure with more rule-making responsibility in
the commissions to tailor rules to specific conditions, effects some
revisions with a modest strengthening of exemptions and provides
McGILL LAW JOURNAL
[Vol. 26
greater flexibility in methods of dissemination. The paper is parti-
cularly sensitive in its assertion that compatibility with existing
provincial regulatory systems is essential and that dual and over-
lapping regulation is to be avoided.
“Continuing Disclosure and Data Collection”, by Dleap Hall, is
a useful catalogue of the existing sources and methods of govern-
ment data collection in so far as these concern economic regulation,
with some practical suggestions on coordination of these efforts
to reduce the burden and to render more useful common methods
of collecting and disseminating information. It proposes a centraliz-
ed agency, controlling one integrated information system in order
to bring about a necessary coordination.
The study by Leonard H. Leigh, “Securities Regulation: Problems
in Relation to Sanctions”, is a wide-ranging consideration of sanc-
tions of a criminal, quasi-criminal and civil liability nature, design-
ed “to raise policy issues for resolution prior to the preparation of
legislation.” While it is rooted in sanctions in existing Canadian
securities law, it discusses selected jurisprudence in the United
States and the United Kingdom and focuses on practices of the
U.S. Securities Exchange Commission as well as the Ontario Se-
curities Commission. Unlike most of the other papers, it does not
attempt to make a comprehensive set of recommendations but
allows recommendations and preferences to arise in the context of
the discussion of different types of sanctions.
Marvin Yontef’s study of “Insider Trading” enters into a com-
prehensive analysis of the existing Canadian laws dealing with
insider reporting and liability before recommending a role for
federal regulation. It is quite balanced on this question. For example,
it states: “the proposition that additional federal regulation of in-
sider trading would be desirable is debatable” (p. 715), and “al-
though most observers would concede the desirability of regulating
insider trading, the commitment of additional resources to satisfy
what may be viewed as technical shortcomings is questionable”
(pp. 716-7). The author concludes that there is justification for
federal initiatives and that the attractiveness of one federal standard
which would replace the duplication and conflict which already
exists with seven regulatory codes is strong. Moreover, he proposes
that the present conflict between corporations and securities laws
would be minimized with one regulatory code.
The lengthy study entitled “Canadian Financial Institutions”,
by Peter Williamson, is a more specific and largely empirical
analysis of the study commenced in his first paper. It begins with
a general analysis of all major financial institutions in Canada and
1981]
BOOK REVIEWS – COMPTES RENDUS
then focuses on the securities industry to look at registered partici-
pants, self-regulatory organizations, the activities of securities firms,
competition policy, the sources and adequacy of capital in the
Canadian securities industry, foreign ownership, and broker failures.
The paper then turns to a detailed analysis of commission rates and
the economics of the Canadian brokerage business. It examines
securities-related activities of banks and trust companies and con-
cludes with an analysis of institutions and independent individual
investors in the stock market. It is a fountain of information about
Canadian practices, uses U.S. comparisons thoughtfully and sharply
and, in the conclusions and policy implications drawn at the end
of each part, provides an attractive balance of soundness and in-
novation in its recommendations.
Hugh Cleland, in “Applications of Automation in a Canadian
Securities Industry: Present and Projected”, provides a detailed
progress report on the mechanics and daily operations of the
securities market system, on the work to establish a Canadian
depository for securities, on trading systems and the development
of the computer-assisted trading systems research project at the
Toronto Stock Exchange, and ends with a view of the probable
shape of a securities market system for 1980-1985. The paper is
particularly valuable because it contains much information, based
on Mr Cleland’s own experience as the senior consultant to the
Toronto Stock Exchange, which is previously unpublished and is
known only to persons close to future policy developments within
the exchange community. The paper will provide a useful basis
to consider continued progress towards automation and a national
technologically advanced market system in Canada. It will establish
a yardstick against which to measure the development of the im-
mobilization or elimination of the stock certificate and computer-
assisted trading. In drawing comparisons with the United States,
the author concludes that, in general, the Canadian experience has
been more successfully innovative than the American. Unfortun-
ately, the paper was largely written in October, 1975 and only super-
ficially updated in July, 1978. Since the pace of progress has been
so rapid in this domain, and the developments under discussion
are “in train”, one feels a sense of frustration that the update is
not more comprehensive. This is one paper that existing regulatory
authorities should amend and review annually for the next few
years so as to monitor technological progress towards more efficient
securities markets.
The paper by Michael Jenkins called “Computer Communications
Systems in Securities Markets” is intended to provide some tech-
nical background about automation in the securities industry. It is
McGILL LAW JOURNAL
[Vol. 26
written to provide vocabulary and concepts for the lay person to
help him grasp modern technology as it applies to the securities
industry. The author is quite successful. He begins with a simple
explanation of computer hardware and software, tracing automa-
tion in securities markets in the United States, the United Kingdom
and Canada, examining reliability, integrity and security in com-
puter systems and concluding with a glimpse at the future of
automated systems in securities markets. The paper provides an
attractive companion study to the background study by Mr Cleland
and will serve as a primer for anyone interested in understanding
how technology has dramatically changed the securities industry.
“International Aspects of Securities Legislation”, by Sholto
Hebenten and Brian Gibson, comprehensively examines the two
broad concepts of extraterritoriality and international enforcement
in securities markets, and contains a series of useful recommenda-
tions on such topics as outreach of national legal systems permitted
by international law under the headings of criminal law, civil actions
and economic regulation; extraterritorial application of securities
laws; present jurisdictional claims in securities
law; Canada’s
foreign policy and its attitude to national jurisdiction; special
characteristics of securities offences; special problems of inter-
national offences; obtaining information from abroad; transferring
international offenders from one state to another; and enforcement
systems other than criminal law.
Mark Connelly’s paper, “The Licencing of Securities Market
Actors”, examines the goals of licencing, specifies the securities-
related activities to be licenced, and examines the licencing process.
It reviews a series of issues on standards of conduct and their
enforcement on which the licence is based and examines questions
of public and foreign ownership of securities licences. It concludes
with a series of recommendations respecting a federal licencing
goal not radically different than the existing provincial regime and
evolving provincial policy.
In “Government Supervision of Self-Regulatory Organizations
in the Canadian Securities Industry”, Peter Dey and Stanley Makuch
set out an analysis of self-regulatory organizations in Ontario. They
review the delegation of powers by government or government
agencies to self-regulatory organizations, the evolution of statutory
recognition of self-regulatory organizations, the rationale for self-
regulation with a consideration of its advantages and limitations,
requirements of government supervision of self-regulatory organiza-
tions, and a registration system for such organizations. They
postulate the need for government power to make rulings concern-
ing these self-regulatory organizations and a review of their actions,
19811
BOOK REVIEWS – COMPTES RENDUS
an appraisal of membership criteria in self-regulatory organizations,
a consideration of self-regulation and competition policy, and -pro-
pose a division of regulatory powers in Canada’s scheme of securi-
ties regulation. The study is based on the premise that self-regulation
has been and will be an integral part of Canadian securities regula-
tion. It does not attempt to determine whether or not self-regula-
tion has operated in the public interest, though the general direction
of the paper would suggest that such is the case. The study con-
cludes that the evolution which has given considerable responsibility
to self-regulatory organizations in an increasingly complex regu-
latory environment should continue but with additions to the laws
which would provide greater general supervisory roles for govern-
ment in conferring self-regulatory responsibility on appropriate
organizations.
In “Failures of Securities Dealer and Protective Devices”, John
Honsberger looks at a negative aspect of capital markets, the
failure of firms. He compares U.S. and Canadian experiences, re-
counts some of the specific instances of broker-dealer failures in
the two countries, analyses the existing bankruptcy law, reviews
existing protection and insurance funds and specifically considers
the commodities future options and commodity options markets
as special cases. He concludes that the existing and evolving Cana-
dian law does not pose enormous dangers but that certain issues
require attention and in some instances the amendment of existing
law. The paper itself serves as a rare and welcome textbook of
the law and existing practice in an area which is little understood.
The final paper, “Securities Regulation: Structure and Process”,
by John Howard, is a learned tour de force and an appropriate
ending to this impressive project. A broad theoretical overview of
economic regulation is followed by a comprehensive analysis of
alternative models for appropriate securities regulation
in one
hundred pages. In the author’s own words, he “reviews a number
of basic assumptions about the Canadian securities market and,
more specifically, explains the concept of economic regulation in
its application to securities markets, analyzes alternative regulatory
mechanisms and proposes the means the federal government can
employ to regulate the Canadian securities market if it decides
it should regulate the market” (p. 1611). He describes the frame-
work of the contemporary mixed economy as “an inevitable mix of
the institutions of both command and market economies to achieve
the three basic functions of government:
to allocate resources
among alternative users, adjust the distribution of income and
wealth among individuals, and stabilize the operation of the overall
McGILL LAW JOURNAL
(Vol. 26
economy to achieve a high level of resource use with a minimum
of inflation” (ibid.). He then looks at the economic function of the
securities market, traces the development of securities market regu-
lations and appraises different regulatory techniques and considers
different institutions of federal provincial cooperation before con-
cluding that one of fifteen different models of securities regulation
examined is the most appropriate for Canada with several other
related alternative models ranking close. His choice of a model is
“an integrated system, based on the idea of delegation of powers
from the federal Parliament and the provincial legislatures to one
securities commission. This model does not require uniform laws,
but because of the single commission, it would tend strongly to the
development of such laws and to the development of one disclosure
system supported by a common data base” (p. 1617). He justifies
his preference as follows:
It continues reasonable provincial autonomy, permitting each province
to establish for intra-provincial transactions its own substantive standards
applicable to market entry and its own additional disclosure requirements.
It will, because of the centralized policy-making structure, tend strongly
to the development of uniform laws and procedures. It also has the
advantage that it permits the use of experienced personnel to administer
the various laws through completely decentralized administrative offices.
And finally, it reconciles central policy making with decentralized admini-
stration through a mechanism that, because it contemplates separate
federal and provincial laws, is flexible in the sense that it can be
responsive to local needs and yet be effective to achieve Canada-wide
goals [pp. 1617-8].
The model chosen is similar to the CANSEC proposal made by
the Ontario Government as a basis for federal-provincial cooperation
in securities regulation a dozen years ago. It is regrettable that the
more auspicious times for cooperation of that epoch, two years
before the Victoria Charter, have now given way to the much more
fractious intergovernmental relations that do not augur well for
the adoption of these technically impressive proposals.
David Lloyd Johnston*
* Principal and Professor of Law, McGill University.
1981]
BOOK REVIEWS –
COMPTES RENDUS
Secured Transactions in Personal Property in Canada. By Richard H.
loose-leaf. Secured Trans-
McLaren. Toronto: Carswell, 1979, 2 volumes,
actions in Personal Property in Canada: Release No. 1. By Richard H.
McLaren. Toronto: Carswell, June, 1980. Personal Property Security: An
Introductory Analysis (a reprint of Part I of the first-mentioned work).
By Richard H. McLaren. Toronto: Carswell, 1980.
The law of security on moveable property has undergone major
changes in this country in the last decade. At the beginning of that
period all of the common law provinces as well as Quebec had what
title-based legal regimes. These
could be broadly described as
regimes were characterized by a multiplicity of separate devices
for securing obligations on moveables, tangible and intangible. In
the common law provinces the major devices were the conditional
sale, the chattel mortgage, the floating charge, the finance lease,
the pledge and the assignment of book debts; in Quebec they were
the conditional sale, the sale with a right, of redemption, the sale
with a leaseback, double sales, security under the Special Corporate
Powers Act,1 and sales of accounts receivable. In addition to the
provincial regimes were federal chattel-security devices, the single
most significant of which was undoubtedly the chattel-mortgage
type of security, as it appears to a common lawyer, under section
88 of the Bank Act.2 These devices had each their own creation,
priority, and enforcement rules, whose combined aspect resembles
nothing so much as a tangled jungle of complex, difficult and subtle
law3 More seriously for those most directly affected by the law,
the jungle poorly accommodated the kinds of financing that the
modem North American economy demands:’
The changes in this picture began with the coming into force
in 1976 in Ontario of the Personal Property Security Act (the
OPPSA).2 Inspired by the version of 1962 of the secured trans-
actions article, Article 9, of the American Uniform Commercial
Code,6
the OPPSA drew on the title-independent notion of a
1L.R.Q., c. P-16.
2 R.S.C. 1970, c. B-1. See now Banking and Banking Law Revision Act, 1980,
S.C. 1980, c. 40.
3 See Catzman, Personal Property Security Law in Ontario (1976),
1; for
Quebec, see Macdonald & Simmonds, The Financing of Moveables: Law
Reform in Quebec and Ontario (1981) R.D.U.S. section 1 & 2 (forthcoming).
4 See e.g., Macdonald & Simmonds, supra, note 3; Ziegel, The Legal Pro-
411 Can.
blems of Wholesale Financing of Durable Goods in Canada (1963)
Bar Rev. 54, passim (common law provinces).
5 R.S.O. 1970, c. 344 as am.
6 For the official text, see Uniform Laws Annotated, Uniform Commercial
Code, Vol. 3 (1968), Pamphlet (1978).
McGILL LAW JOURNAL
[Vol. 26
security interest, to replace all the old common law devices with a
uniform set of creation, priority and enforcement rules. In 1977,
Manitoba brought into force its Personal Property Security Act
(the MPPSA),’ based in large part on the Ontario model. In 1980,
Saskatchewan became the third province with such legislation (the
SPPSA) ,8 while British Columbia’s Law Reform Commission has
published a discussion paper 9 foreshadowing its introduction into
the province. The Civil Code Revision Office in Quebec has also
proposed a secured-transaction law whic4 grew out of an appre-
ciation of Article 9.10 And the Canadian Bar Association’s Model
Uniform PPSA Sub-Committee has been working for the cause of
nation-wide adoption of uniform legislation, both through its two
Model Acts (1970 and 1980) and other efforts.
Against this background, the appearance of Professor McLaren’s
work (collectively, Secured Transactions) is most timely. To be
sure, there exists a significant body of American literature on Article
9, of which Professor Gilmore’s Security Interests in Personal
Property (2 volumes, 1965) is the pre-eminent work, being a model
analysis of the law and policy underlying both pre-Article 9 American
law and the 1962 changes to it. However, Article 9 itself has under-
gone a number of changes since Professor Gilmore wrote, changes
from which the SPPSA and the MUPPSA (1980) have carefully
drawn. In any event, the Canadian Acts are far from slavish copies
of Article 9 –
not least because of important differences in the
pre-Act legal positions. In this last respect, Professor McLaren’s
title is perhaps somewhat misleading, as he does not provide for
Canada the kind of comprehensive historical
treatment which
Professor Gilmore provides for the United States, and which
Professor Sykes, in The Law of Securities (3d ed., 1978), provides
for Australia. However, Professor McLaren has given lawyers in
Ontario and Manitoba, and to a lesser extent Saskatchewan, the
first textbook on the new Canadian law. Lawyers in other pro-
vinces receive a preview of life in the new secured-transactions
world.
Professor McLaren’s stated objective is to provide a “functional”
analysis of the new law “not just for [the] exclusive use of lawyers,
7 SM. 1977, c. 28 as am.
8 The Personal Property Security Act, S.S. 1980, c. P-6.1 (due to come into
force on 1 April, 1981).
Security (1975).
9 Report on Debtor-Creditor Relationships, Part V –
10Civil Code Revision Office, Report on the Quebec Civil Code (Draft
Personal Property
Civil Codel (1977) Book IV, Title 5.
1981J
BOOK REVIEWS –
COMPTES RENDUS
645
but also for the use of those who grant credit and take security as
well as those who may from time to time encounter the legislation
in the course of purchasing personal property.”” He is well qualified
to achieve this, having combined an academic’s interest with
membership on the Ontario Ministerial Advisory Committee on
The Personal Property Security Act. The loose-leaf format of the
main two-volume work allows it to be kept abreast of a rapidly
changing field; Release No. 1, June 1980, is the first addition.
The volumes are divided into eight parts. Part I, entitled “Intro-
ductory Analysis,” is devoted to a thematic exposition of the law,
with a separate treatment for each of the two jurisdictions he covers,
Ontario and Manitoba. This part, published separately under the
title Personal Property Security, and without the most recent up-
dating and supplementary material, serves as an introductory text
for law students. Parts II and III, “Registration” and “Searches”,
respectively, describe the character, the mechanics and the ramifi-
cations of the computerized systems on which both jurisdictions
rely, including problems of errors in the system and impact on
secured-transaction closings and lawyers’ opinions. Part IV, “Secur-
ed Party Remedies”, is a treatment in greater detail of matter
forming an element of Part I. Part V, “Transactional Documents”,
sets out precedents for both commercial and non-commercial
security agreements with explanations of the distinctive clauses in
each. Part VI, “Legislation & Forms – Ontario”, sets out the text
of the OPPSA (up to and including 1977, chapter 23), the Regula-
tions (up to and including 547/79), the Forms thereunder, and
four very useful Ontario government publications on the legislation.
Part VII contains the matching MPPSA materials –
the Act (up to
and including 1979, chapter 32), Regulations (up to and including
156/78), Forms, and the Manitoba Personal Property Security
Registration Guide and the Personal Property Enquiry Guide. And
Part VIII, “Personal Property Security Act Cases”, contains in full
text almost all the decisions on this legislation up to Re Toyerama, a
judgment rendered June 23, 1980.12 A treatment for Saskatchewan
is missing from the work at present, which in view of the SPPSA’s
recent passage is quite understandable. One hopes this gap will be
filled soon: the SPPSA differs much more from the MPPSA and
the OPPSA than the last two do from one another; the SPPSA also
seems the likeliest source of the next “wave” of amendments to
the other two provinces’ laws.
11 Secured Transactions, Vol. I, vii.
12 (1980) 1 P.P.S.A.C. 126 (Ont. S.C.).
McGILL LAW JOURNAL
[Vol. 26
This format makes possible a quite selective reading, by province
and problem area, of the material in the book. It also produces a
great deal of duplication, which is more likely to concern the rare
reader who tackles the work from end to end than the major
users of it. For the lawyer and business user there is at least the
beginning of a discussion of those problems they are most likely
to encounter: what transactions does this legislation cover? what
form of documentation must be used? what documentation should
be used? what are the types of secured transaction this new law
makes possible which the old law, at least not without difficulty,
did not? what is the new priority picture and how does if affect
the way commercial secured financing operations should be run?
and what are the principal features of the new remedial regime?
The law student will find in Personal Property Security an over-
view of the major themes of the legislation, the leading problems
in construing it, and its practical effects.
The work is, however, much less satisfactory in at least three
ways for the secured transactions specialist lawyer; and these
concerns to some extent detract from its undoubted virtues for the
other users as well. First, insufficient advantage is taken of the
rich U.S. material, potentially of immense assistance in coming to
terms with the Canadian legislation. For example, there are no re-
ferences to the excellent treatise, Uniform Commercial Code, by
Professors White and Summers, now in its second edition (1980).
While hardly as comprehensive as Professor Gilmore’s work, to
which Secured Transactions makes frequent reference, White &
Summers in both its editions is more likely to be accessible to users
of the Canadian book. Admittedly, the current edition focuses more
on the 1972 version of Article 9 and not the 1962 version, on which
the present Ontario and Manitoba legislation is based. Nevertheless,
many discussions of Code law in the second edition are useful, either
because the relevant Code section has not changed in a material
respect or because the 1962 section is still discussed.13 In view of
the future direction of Canadian personal property security law,
one would hope that this particular deficiency in Secured Trans-
actions will be remedied in future.
Second, although Secured Transactions has drawn fairly well on
the still relatively small Canadian literature on the new legislation
(at least when account is taken of Release No. 1), there are some
13 See, e.g., White & Summers, Uniform Commercial Code, 2d ed. (1980),
883-8, esp. 886-7 (which makes fairly clear the peculiar features of the current
Code position).
1981]
BOOK REVIEWS – COMPTES RENDUS
curious gaps. For example, in the discussion of one of the statutory
preconditions to creation, or “attachment” of a security interest
(the debtor “has rights in the collateral”) 14 there is a reference
to a useful American article.15 But there is no reference to the
interesting discussion of the point by the British Columbia Law
Reform Commission. 16
The third specialist concern about the book is one that comes
easiest to an academic lawyer: the level of explicit policy analysis.
While there is useful analysis by McLaren of some of the difficult
issues of commerciab policy raised by the legislation, it tends not
to go very deep. For example, in explaining the special priority
position accorded financiers of the acquisition of discrete collateral
(purchase money financiers) ,’17 a good account is given of the basic
argument for this exception to the legislation’s first-in-time, first-in-
right priority rule. However, that argument, that the debtor should,
despite a prior secured creditor’s after-acquired property clause,
“always [be] able to obtain credit from a new financier if he
wishes to make purchases of property [in view of the fact that that
prior creditor was] satisfied. with the security base without the
inclusion of any after-acquired (new) collateral”,’ s is susceptible
of further elaboration to explain why the debtor should not be re-
mitted to the prior creditor for the new credit. A fuller explanation
could make clear not only the situational monopoly created by
the after-acquired property clause, but also the reasons for restrict-
ing the special priority position to financiers of discrete new
collateral. 19
Of somewhat lesser concern are stylistic and proofreading
difficulties with the text, not to mention some substantive errors
to which another reviewer has drawn attention 0 There is some
rather awkward prose at a number of points. The word “compliment-
is used in its obsolete meaning which
ary” (and “compliment”)
is today rendered by “complementary”; and “principle” is used
where “principal” is meant. The text’s proofreader failed to pick
up the frequent misspelling of Professor Ziegel’s name in the cita-
14 R.S.O. 1970, c. 344, s. 12(1)(c).
15 See Secured Transactions, 2-3, n. 6; Hogan, The Marriage of Sales to
Chattel Security in the Uniform Commercial Code: Massachusetts Variety
(1958) 38 B.U.L. Rev. 571. See also White & Summers, supra, note 13, 915-7.
16 Supra, note 9, 39-44.
17 R.S.O. 1970, c. 344, s. 34.
18Secured Transactions, Vol. I, 6-9.
19 See the most interesting article by Jackson & Kronman, Secured Finan-
cing and Priorities Among Creditors (1979) 88 Yale L.J. 1143.
20Crawford, Book Review (1980) 4 Can. Bus. L.. 493, 497.
McGILL LAW JOURNAL
[Vol. 26
tions to some of his numerous writings on personal property
security.
Professor McLaren has done well to gather as much material
as he has on the new wave of Canadian personal property security
law. The concerns this reviewer has expressed are fairly readily
redressable –
due to the wisely chosen loose-leaf format. Its value to all who are
professionally interested in this area will only increase as Secured
Transactions keeps pace with the rate of change in the law and the
understanding of it.
at least for the purchasers of the two-volume work –
R.L. Simmonds*
* Of the Faculty of Law, McGill University.
1981]
BOOK REVIEWS – COMPTES RENDUS
Principes de contentieux administratif. By Yves Ouellette and Gilles Pdpin.
Montreal: Les Editions Yvon Blais Inc., 1979. Pp. xv, 478.
This text, which first appeared as Prdcis de contentieux admi-
nistratif,1 is now well on the way to becoming a full-fledged mo-
nograph on judicial review and government liability. Although,
being a textbook, it is not comprehensive and occasionally reduc-
tionist, it is still a useful work on Canadian administrative law.2
Focusing on federal law and the law of Quebec, the text makes
in common law provinces; for
few references to developments
example, one finds little on the peculiarities of the traditional
judicial review remedies or their statutory reform and consolida-
tion. But this new edition has generally improved upon the preced-
ing version. Intricate points which were treated superficially in
previous editions have now been amplified,3 and administrative
litigation is better situated within a broad framework of public
administration and administrative law.4 The authors have attempted
to treat the subject as an integral part of the process of modern
government, rather than as a subject of legal arcana divorced from
any political and social context.5
Like its predecessor, Principes de contentieux administratif is
concise, current, relatively inexpensive, abundantly annotated and
generally well written. It includes a detailed table of contents, a
comprehensive bibliography, and a thorough case list with an index
of judicial references. The choice of typeface and titles, as well as
the spacing of the text also contribute to the aesthetic appeal and
easy reading of this book. Finally, the clarity and concision of the
introductory and concluding sections of most chapters add to the
text’s value as a teaching manual.
1 See Prdcis de contentieux administratif, 2d ed. (1977),
reviewed by this
author in (1978) 13 RJ.T. 220.
2A similar work in English is Mullan, Administrative Law, 2d ed. (1979).
Other texts include Reid & David, Administrative Law and Practice, 2d ed.
(1978); Dussault, Trait6 de droit administratif (1973), Vols. I & II.
3 E.g., sections on reconsiderations, error of law on the face of the record,
liability and s. 96 of the
privative clauses, government quasi-contractual
British North America Act, 1867 (30-31 Vict., c. 3 (U.K.)) have been expanded.
4 The lengthy title “La classification des pouvoirs” (pp. 43 et seq.) has been
the authors
substantially rewritten
apparently cite with approval from Schwartz & Wade, Legal Control of
Government (1972), 324: “the process of applying law to acts of government
requires knowledge of law, and knowledge of administration is neither
relevant nor helpful.”
from this perspective. Nevertheless,
5For this purpose, the Introduction, comprising the first 37 pages of the
text, represents a remarkable improvement from the brief nine-page over-
view of the preceding prdcis.
McGILL LAW JOURNAL
[Vol. 26
With a work such as this, one might be tempted simply to
congratulate the authors on their efforts and recommend the text
to anyone interested in the field; but such a course would not be
appropriate in the present context for at least three reasons. First,
given the popularity of the book, another edition is likely in the
near future: the authors having manifested a desire to improve
continually the work, critical comments (even where these relate
to the guiding concept of the book) should not be suppressed.
Second, although the new text has been styled a handbook of
principles, rather than a prdcis of administrative litigation, it
remains more in the nature of Mullan’s Administrative Law” than
of de Smith’s Judicial Review of Administrative Action:1 a further
rewriting of the book is necessary if it is to become more than an
amplified case citator. Third, while the book is admittedly intended
only to elucidate administrative litigation both as to jurisdiction
and as to civil liability, this topic forms only a small and parasitic
part of administrative law: just as one cannot understand company
law solely by focusing on judicial decisions, one cannot understand
administrative litigation solely by focusing on reported cases. For
these reasons, the remainder of this review will deal with what I
consider important omissions in the text.
One complication in this book results from the many purposes
it is designed to serve. While a discursive and didactic approach
may be appropriate (perhaps even necessary) in a work purporting
to be a pricis, it is not suitable in a text. The authors have preferred
to report the result of myriad cases rather than analyze in detail
selected important judgments. Significant decisions of the Supreme
Court,” Federal Court9 or Quebec Court of Appeal are not sub-
‘ Supra, note 2.
74th ed. (1980), by John Evans.
8 E.g., Bell v. Ontario Human Rights Commission “1971] S.C.R. 756; Metro-
politan Life Insurance Co. v. International Union of Operating Engineers
[1970] S.C.R. 425; Jacmain v. A.-G. Canada [1978] 2 S.C.R. 15; A.-G. Quebec
v. Farrah [1978] 2 S.C.R. 638; Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police [1979] 1 S.C.R. 311; M.N.R. v. Coopers and Lybrand
[1979] 1 S.C.R. 495; Herman v. A.-G. Canada [1979] 1 S.C.R. 729; C.U.P.E. v.
New Brunswick Liquor Corporation [1979] 2 S.C.R. 227; Re Harelkin and
University of Regina [1979] 2 S.C.R. 561; Manitoba Fisheries v. The Queen
[1979] 1 S.C.R. 101; Duquet v. Ville de Ste-Agathe-des-Monts [1977] 2 S.C.R.
1132; Vachon v. A.-G. Quebec [1979] 1 S.C.R. 555; Keable v. A.-G. Canada
[19793 1 S.C.R. 218; Mitchell v. The Queen [1976] 2 S.C.R. 570; Houde V.
C.E.C.M. [19783 1 S.C.R. 937.
9 Inuit Tapirisat v. Ldger [1979] 1 F.C. 213 (C.A.), rev’d (unreported judgment,
10 October 1980 (S.C.C.)); Martineau v. Matsqui Institution Inmate Disciplinary
Board (No. 2) [1978] 2 F.C. 637 (CA.), rev’d [1980] 1 S.C.R. 602.
10 Testulat v. Ville de Sherbrooke [1977] C.A. 312; Commission de contrdle
19811
BOOK REVIEWS – COMPTES RENDUS
jected to extensive study and explication, and have been, treated
summarily in a few lines. As a consequence, the common law fabric
of administrative law tends to be overlooked and the importance
of close textual analysis is understated.”
The authors also are unwilling to criticize certain judicial deci-
sions at a fundamental level.’ 2 In an early section (pp. 32-6) the
book explores the creative role of judges in developing adminis-
trative law. This being so, it would seem necessary for the authors
to abandon their attempt to rationalize (or even merely list) dozens
of cases on conflicting points. Perhaps more than other areas of
the law, administrative litigation needs to be situated in a policy
context and decisions must be understood not so much on the basis
of what is expressly said in various judgments as on the results
of individual cases. What distinguishes a good text is the vision
of its authors and their ability to impress the raw material of the
law with a coherence arising from that vision.’ 3
A second problem with Principes de contentieux administratif
also is inherited from its predecessor. Even though the text purports
to be an outline only of administrative litigation – which the
authors carefully define (pp. 24-5) –
it is impossible to under-
stand this subject without a more general examination of public
administration. This point is especially difficult to convey to stu-
dents, who tend to see judicial review simply as challenges to
bureaucratic acts on jurisdictional grounds. Yet judicial review
lawyers often are interested in defending the legality of a decision.
Obviously those working for agencies will seek to have agency
jurisdiction upheld. But, more importantly, in many situations
several private parties will be supporting the agency position. For
example, in applications for judicial review of a Labour Board
decision one usually finds either employer or union defending the
impugned decision; in licensing matters, either the applicant or his
competitors often seek to have a decision confirmed on judicial
review; or, on disciplinary cases, either the accused or prosecutor
will likely approve of the act of the tribunal in question. This bi-
des permis d’alcool v. Distribution Kindma Ltde [1977] C.A. 308; A.-G. Quebec
v. Restaurants et motels Chatelaine International [1977] C.A. 454.
11 For an excellent example of a detailed analysis of a limited number of
cases, see Mullan, “Administrative Law” in (1980) 1 Supreme Ct L. Rev. 1-77.
12This is paradoxical in view of the fact that Professor Pdpin has already
undertaken such an exercise with respect to many such cases: see (1976)
36 R. du B. 453; (1978) 38 R. du B. 818; (1979) 39 R. du B. 1070,
13 This “legal realist” or “nominalist” approach should not be mistaken
for scepticism as to the possibility of finding unifying threads in administra-
tive law. For a more detailed treatment of this theme, see Macdonald &
Wydryzynski, “Book Review” (1979) 28 U.N.B.L.J. 234, 234-7 and 251-2.
McGILL LAW JOURNAL
[Vol. 26
polarity also arises in matters of tort and contract. Should not the
taxpayer, joint tortfeasor and beneficiary of an allegedly tortious
act also be interested in having the agency absolved of liability?
May not the quota-producer, potential competing supplier and
collateral beneficiary, depending on the circumstances, have a con-
gruent interest with the government co-contractant? In other words,
administrative lawyers must be able to attack and defend the
determinations of public bureaucracies.
While jurisdictional challenges may not imply some prior under-
standing of the science of public administration, the defence of
agency determinations usually does. For if administrative law is
the body of principles and concepts which arises from the recon-
ciliation of judicial adjudication and the managerial bureaucracies
of government,14 is it not necessary to become acquainted with
each of these in order to know their respective limits? From this
perspective many, if not all, doctrines of judicial review should
not be seen as merely the boundaries of jurisdiction implied by
canons of statutory interpretation;
they also symbolize the re-
straints on governmental attempts to implement policy.,; Hence,
the “delegatus” maxim, “acting under dictation”, “institutional
bias”, and “deciding without hearing” illustrate difficulties arising
from the nature of public bureaucracies: by whom, to what degree
and within what framework are certain decisions to be taken?
Again, “jurisdictional facts”, fettering discretion by self-created
“policy rules” and functus officio reflect the problem caused by
the lack of finality in political decision-making: when, to what
degree and for what purposes should the astringent character of
judicial decision-making crystallize the evolution of public values?
Issues of “natural justice”, “fairness” and “wrong questions” illus-
trate the limited teleology of adversarial adjudication: there are
alternatives to a strictly judicial process of resolving disputes.
Successful resistance to jurisdictional challenges thus presupposes
a familiarity with the nature, goals and procedures of public
bureaucracies.
Finally, one might also criticize the overtly positivistic orienta-
tion of P6pin and Ouellette’s new book. Administrative law arises
principally in administrative agencies, not in courts; and administra-
tive litigation is not just the end result of the administrative pro-
cess, but part of the process itself. Thus it is important to investigate
thoroughly each of the various processes by which agencies operate.
24 Cf. Willis, Canadian Administrative Law in Retrospect (1974) 24 U.T.LJ.
225.
15 For an elaboration of this theme, see Vining, Legal Identity (1978), passim,
and Freedman, Crisis and Legitimacy (1979), passim.
1981]
BOOK REVIEWS – COMPTES RENDUS
While the authors do devote forty pages to legislative powers, six
pages to ministerial (managerial) powers and thirty-two to judicial
powers, the remaining functions of administration are treated in
five pages; powers to negotiate, mediate, prosecute, investigate,
and the like, are simply characterized as “administrative”, without
further analysis. Because characterization of functions continues to
have an important bearing on the procedures and the outcome of
judicial review, 6 the diversity of administrative processes compels
detailed examination. 17 Further, one cannot really appreciate the
forms, limits and functions of administrative litigation without
consideration of other remedial alternatives: ombudsmen, public
inquiries,
reconsiderations,
parliamentary control, monitoring by public-interest groups, and
press exposure are also components of the legal control of govern-
ment. 18 That judicial review is a “discretionary remedy” subject to
constraints such as ripeness, mootness, political question, exhaus-
tion, more appropriate remedy and the like, reflects judicial at-
tempts to maintain an integrated socio/politico/legal fabric to ad-
ministrative law.’9
trusteeship, administrative appeals,
Despite the tenor of the preceding paragraphs, it should not be
assumed that Principes de contentieux administratif is a mediocre
work. Like its forerunner, it is a good outline of the major themes
and concepts in the judicial control of government. But other writ-
ings by its authors 0 illustrate their capability to improve the text
in subsequent editions, and I trust that the continued reworking of
this monograph will result in a definitive treatise on a difficult
and elusive field of law. In the interim, Messrs Ppin and Ouellette
are again to be congratulated for having produced a useful contri-
bution to the literature of administrative law.
R.A. Macdonald*
lO Cf. M.N.R. v. Coopers and Lybrand, supra, note 8, per Dickson J. See also
Inuit Tapirisat v. A.-G. Canada (unreported S.C.C., October 7, 1980).
‘7 See Macdonald, Judicial Review and Procedural Fairness (1980)
25
McGill L.J. 520; (1980) 26 McGill LJ. 1.
18 See the observations of Garner, Administrative Law, 5th ed. (1979), chs
V-IX, who discusses some of these.
19 See Stone, “Towards a New Model of Court Function” in Bishin &
Stone, Law, Language and Ethics (1972), 399-402.
20Notably Pdpin, Les tribunaux administratifs et la constitution (1969);
Quelques observations sur la question du caractare efficace ou illusoire du
contr6le judiciaire de l’activitg de l’administration (1976) 36 R. du B. 453;
Ouellette, Le contr6le judiciaire sur l’universitg (1970) R. du B. can. 631; La
responsabilitd civile personnelle du fonctionnaire (1975) 18 Can. Pub. Ad. 1;
Le pouvoir de surveillance et le contr6le de la sgvgritd des sanctions disci-
plinaires ou administratives (1978) 38 R. du B. 362.
* Of the Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 26
Thdorie de la responsabiliti civile. By Jean Pineau and Monique Ouellette.
Montr6al: Les Editions Th6mis Inc., 2d ed., 1980. Pp. viii, 237.
Civil responsibility, usually assessed in damages, is the law’s
sanction for the inexecution or faulty execution of “obligations”
arising from contracts, quasi-contracts, delicts, quasi-delicts or from
the operation of the law solely.1 The book under review deals with
civil responsibility arising from delictual and quasi-delictual obliga-
tions. Professor Pineau has published another book, Thdorie des
obligations, devoted largely to contractual and quasi-contractual
obligations.
A distinction between obligations in general and delictual and
quasi-delictual obligations is common in writing about the law of
obligations in Quebec. There are sixty-nine codal articles on con-
tracts and quasi-contracts in general2 and only four articles on
delicts and quasi-delicts in general.3 This difference perhaps justifies
treating “obligations in general” and “delictual and quasi-delictual
obligations” separately. That method, however, may somewhat dis-
tort the unity of the law of obligations and the relationship of its
constituent parts. Much can be said in favour of a more global
approach to the law of obligations.4
Nevertheless, -Professors Pineau and Ouellette have devoted
three paragraphs of their book to the relationship between con-
tractual and delictual or quasi-delictual responsibility
(pp. 5-6,
189-97). In this context, their choice for the r6gime of respect
rather than cumul or option is to be applauded (p. 192). The
r6gime of “respect” means that, with certain exceptions, a con-
tracting party can only invoke contractual rules against his co-
contracting party, and not delictual or quasi-delictual ones. Cumul
describes the right of a contracting party to invoke both contractual
and delictual rules against his co-contracting party. Option allows
that a contracting party may leave the contractual field altogether
and invoke solely delictual rules against his co-contracting party.
Unfortunately, the authors’ review of jurisprudence on this matter
lacks an analysis of the Court of Appeal’s decision in National
Drying Machinery Co. v. Wabasso Ltd.5 The case is only referred
to in a footnote without further explanation.
1 Art. 983 C.C.
2 Arts 984-1052 C.C.
3 Arts 1053-1056 C.C.
4 E.g., Tancelin, Thdorie du droit des obligations (1975). For the law of
France, see H. & L. Mazeaud, Traitg thdorique et pratique de la responsabilitd
civile ddlictuelle et contractuetle, 6th ed. by Tune & Chabas (1965, 1970 & 1978).
5 [1979] CA. 279, now in appeal before the Supreme Court of Canada; for
comments, see Jobin, (1979) 39 R. du B. 939; Haanappel, (1980) 11 C.C.L.T. 276.
19811
BOOK REVIEWS – COMPTES RENDUS
The book consists of two parts: conditions of responsibility
and effects of responsibility. In their Introduction, Professors
Pineau and Ouellette note three practical differences between delicts
(intentional civil wrongs) and quasi-delicts
(unintentional civil
wrongs) (p. 3). They could have added a fourth one: exoneration
from quasi-delictual responsibility is possible, at least in principle,
whereas exoneration from delictual responsibility is not., The issue,
however, is taken up by the authors elsewhere in the book (pp. 60,
190-1).
The Introduction also contains a study of the theory of risk
as a possible basis for civil responsibility. The authors have perhaps
too hastily concluded that the theory of risk does not underlie
modern jurisprudence on the irrebuttable presumptions of fault,
contained in articles 1054(7) and 1055 of the Civil Code.1 Further,
the Rome Convention of 1952, mentioned as a legislative incidence
of the theory of risk (p. 10), no longer forms part of Canadian
law, having been denounced in 1976.8 Finally, the authors’ criticism
of the decision in Lapierre v. Procureur Ggndral de la Province
de Qudbec,9 which used article 1057 of the Civil Code in order to
find strict responsibility
in a medical liability case, is overly
harsh (p. 12). The authors argue that responsibility without fault,
as upheld in Lapierre, can never have been the intention of the
drafters of the Civil Code of 1866. This may be true, but the law
of obligations must grow and develop in accordance with today’s
social, cultural and economic realities, which sometimes dictate
solutions different from those conceived by our nineteenth-century
codifiers.
Part I of the book contains chapters on each of the three
conditions of responsibility –
damage, fault and causality. In the
chapter on damage, the authors discuss article 1056 of the Civil
Code, which determines who can sue in delict or in quasi-delict
for damages suffered as the consequences of the death of another.
One misses here a thorough discussion of the recent Court of Appeal
decision in Air Canada v. Alice Marier,10 dealing with the standing
Madill v. Sommer Building Corp. [1978] 1 S.C.R. 999.
0 Ceres Stevedoring Co. Ltd v. Eisen und Metall A.G. [1977] C.A. 56; J.A.
7 See also p. 77 on irrebuttable presumptions of fault (presumptions juris
et de lure); pp. 96-8 on the nature of art. 1054(7) C.C.; pp. 124-5 on the
nature of art. 1055(1-2) C.C.; and pp. 128-9 on the nature of art. 1055(3)
C.C.: cf. Haanappel, Faute et risque dans le syst me qudbicois de la res-
ponsabilitd civile extra-contractuelle (1978) 24 McGill L.I. 635.
8 ICAO State Letter 3/14-76/129 of 23 July 1976.
9 [1979] C.S. 907.
10 [1980] C.A. 40.
McGILL LAW JOURNAL
[Vol. 26
to sue of a divorcee in a death case. Again, the case is only cited
in a footnote (p. 40, n. 41).
In the first section of the chapter on fault, where the authors
discuss responsibility for one’s personal acts, one finds a paragraph
on the defence of volenti non fit injuria (pp. 51-2). Although the
examples used by authors are well chosen, they fail to answer the
two following questions. Is volenti in civil law an independent
doctrine or merely an application of the doctrine of the fault of
the victim (contributory negligence)? And if the defence of volenti
is successfully advanced, does it exonerate fully the person in-
voking it?
The first question is harder to answer than the second. Often
volenti seems an application of the doctrine of one’s own fault, as
in accepting a lift from a driver whom one knows to be drunk.
On other occasions, however, especially in sports events, it is harder
to view volenti as an application of the doctrine of own fault.
Can one say that a participant in a sports event, who voluntarily
assumes a risk of injury, commits a fault? Apparently not. In civil
law, volenti, once established, does not necessarily constitute full
exoneration, though it may allow partial exoneration. 1
In the same section on responsibility for one’s personal acts,
there is a discussion of the “capacity to discern right from wrong”
(pp. 53-7), a necessary element of civil responsibility under article
1053 of the Civil Code. The authors are right to say that under the
civil law of Quebec, unlike the French law, this “capacity to discern
right from wrong” is an independent element of a delict and there
may be objective fault without the subjective “capacity to discern
right from wrong”, and hence no civil responsibility. One must
also agree with the authors’ discussion of “omission delicts” (pp.
57-60). According to jurisprudence, there can only be an omission
delict if the omission corresponds to a “legal duty to act”. This
expression should not be taken in the narrow sense of “statutory
duty to act”, but rather in the wider sense of the general duty of
the bonus pater familiae. ”
When looking at the discussion of troubles de voisinage and
“abuse of rights” (pp. 67-74), one wonders why the authors have
dealt with them separately rather than simply considering troubles
de voisinage to be an abuse of the right of ownership. The authors’
efforts to interpret the decision in Katz v. Reitz13 as staying within
“E.g., Robert v. Paquet [1961] C.S. 114.
12 Cf. Baudouin, La responsabilitg civile ddlictuelle (1973), 61-8.
13 [1973] CA. 230.
19811
BOOK REVIEWS – COMPTES RENDUS
the framework of fault liability, seem artificial, in that the judg-
ment explicitly excludes fault as the basis of liability.14
In the second section of the chapter on fault, dealing with res-
ponsibility for the acts of others, the authors state (p. 83) that
there can be no such responsibility outside the cases specifically
mentioned in paragraphs 2-5 and 7 of article 1054 C.C. The Superior
Court decision in the case of Laverdure v. Blanger5 may, however,
have opened the road to a general r6gime of responsibility for
the acts of others under article 1054(1)) C.C.’ 6 in the same fashion
as there is a general r6gime under article 1054(1) of responsibility
for things under one’s care. Much of the discussion of this latter
area of responsibility is devoted to the new Automobile Insurance
Act.’ With great clarity the authors explain the new r6gime, as it
applies to physical injury and death and to property damage.
With the new Act, however, liability arising out of automobile
accidents is perhaps more properly studied in a course on ad-
ministrative and/or insurance law than in a general course on
the law of obligations. Also, why single out this Act and ignore
two others that are quite similar, the Workmen’s Compensation
Act 1 8 and the Crime Victims Compensation Act? 9
On the whole, this second edition of the book by Professors
Pineau and Ouellette is written with lucidity and the reader is given
many well-chosen examples. Footnotes are often more elaborate
than in the first edition; they are, however, no longer printed at
the bottom of each page, but are collected at the end of chapters
or sections of chapters, which makes reading somewhat awkward.
In appropriate places, the book indicates where the law of obliga-
tions of Quebec differs from that of France. Unfortunately, there
are no references to the articles of the proposed Draft Civil Code,2”
even where it intends to change existing law. 21 Finally, the book
lacks a table of cases and an index.
P.P.C. Haanappel*
14See Baudouin, supra, note 12, 66; Haanappel, supra, note 7, 637, 643.
:15 [1975] C.S. 612.
10 Ibid., 619-23. The Superior Court decision was confirmed by the Court of
Appeal (Montreal, 09-000 116-756) without reference to this particular point.
17 L.R.Q. c. A-25.
8L.R.Q. c. A-3. Cf. Perret, Pricis de responsabilitd civile (1979), 146 et seq.
I9 L.R.Q. c. 1-6. Cf. Perret, supra, note 18, 155 et seq.
20 Civil Code Revision Office, Report on the Qudbec Civil Code (Draft
Civil Code) (1977), Vol. I.
21 E.g., Book V, arts 95, 98, 100-103.
* Of the Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 26
Lawsuit. By Stuart M. Speiser. New York: The Horizon Press, 1980. Pp. v, 617.
Stuart M. Speiser is a senior partner in a firm known nationally
and internationally for its success in winning tortious claims, parti-
cularly in aviation accident cases. It is one of a few firms which
have revolutionized the law relating to the compensation of aviation
accident victims, and have contributed substantially to the develop-
ment of tort law in the United States, especially in the field of
products liability.
After serving as a pilot in the United States Army Air Force
during World War II, and as an aerial agricultural pilot immediate-
ly after the War, Stuart Speiser resumed his legal studies and in
1949 established his own practice with a view to specializing in
aviation tort law. At that time it was a primitive discipline but
over the years he has contributed to its growing sophistication.
He is the author or co-author of a number of articles and books,
including Recovery for Wrongful Death (2d ed. (1975)) and, with
C. Krause, Aviation Tort Law (1979).
The career of the author and the role of his firm recommend
Lawsuit to those interested in aviation law and in the practice of
tort law in the United States. In a lucid style, the author provides
a history of tort litigation and of the profession of specialized
claimants attorneys, a description of the role which that profession
plays in the legal process, a strong argument for the contingency fee
system and an explanation of the financial aspects of the claimant
attorney’s business. What is most fascinating to this reviewer, and
of great value to students of the subject, is that he has drawn from
his broad experience examples to illustrate and educate.
Lawsuit commences with Ralph Nader v. General Motors Corpor-
ation.’ It discusses events before the initiation of the action and
gives a detailed account of the questions of law and fact, litigation
strategy, the conduct of the trial and the negotiations between the
parties, and concludes with the settlement and the consequences.
The same approach is taken to the Grand Canyon Disaster and more
recent aviation catastrophes.
This technique enlivens the reported decisions and helps to
redress misperceptions induced by those reports. The success of
the claimant’s attorneys is to a large extent explained by their
thorough preparation. In the aviation catastrophe cases, for exam-
ple, the attorneys repeat the investigations performed by national
authorities with a comparable degree of technical sophistication.
325 N.Y. 2d 560 (N.Y. 1970).
19811
BOOK REVIEWS – COMPTES RENDUS
Lawsuit makes it plain that claimants in the United States enjoy
advantages that are not available elsewhere. Three of these deserve
mention. The federal multi-district procedure allows a single federal
judge to supervise the pre-trial phase of claims arising from a
single aircraft accident. It results in a concentration of the claim-
ants’ legal resources, giving them additional bargaining strength.
This is not possible in Canadian aviation catastrophe cases, except
in the unlikely event that all claims can be brought in the same
jurisdiction Another advantage is the availability of extended
discovery during the pre-trial phase. The third is the contingency
fee system.
For foreign lawyers the most interesting parts of Lawsuit are
the chapters discussing the international effects of American tort
law. Of central importance is the Ermonville accident of March
3, 1974. A McDonnell Douglas DC-10 belonging to Turkish Airlines
crashed at Ermonville, near Paris, with the loss of 333 passengers
and thirteen crew members. The rear cargo door was not properly
closed, due in part to a defect in the design of the locking mecha-
nism. After the aircraft climbed above 11,000 feet, the air pressure
in the hull blew the door out; explosive decompression followed,
causing part of the passenger cabin floor to collapse, thus severing
or jamming the control lines to the rudder, stabilizer and elevators.
The aircraft went into a nose-dive from which it was impossible to
recover. These circumstances were a virtual replay of a near-
accident involving an American Airlines DC-10 in flight near Wind-
sor, Ontario in June, 1972. The aircraft survived because it was
lightly loaded and because the pilot-in-command had trained himself
on a simulator for such a situation, although he was not required
to do so by the airlines’ training schedule. McDonnell, Douglas
subsequently designed a modification to the lock on the cargo door.
However, the safety device was not immediately incorporated in
operating aircraft. The Federal Aviation Administration did not
issue an airworthiness directive because there was a gentlemen’s
agreement between the Administrator and the Directors of McDon-
nell Douglas. Although the Ermonville DC-10 was delivered after
2S. 23 of the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10 was designed
inter alia to permit a similar concentration of claims in one court in Canada.
This section was decapitated by the Supreme Court of Canada in Quebec
North Shore Paper Co. v. Canadian Pacific Ltd [1977] 2 S.C.R. 1054. This
matter has been exacerbated by the equally unnecessary decision of the
Supreme Court in McNamara Construction (Western) Ltd v. The Queen
[1977] 2 S.C.R. 654. The results are to be seen in Pacific Western Airlines Ltd
v. The Queen in Right of Canada [1980] 1 F.C. (C.A.). The decisions of the
Supreme Court have strengthened the position of liability insurers.
McGILL LAW JOURNAL
[Vol. 26
the Windsor incident, only a part of the modification had been
incorporated and thus was ineffective.
Most of the passengers were not American citizens. As they were
being carried on an international journey, the Warsaw Convention3
governed, limiting the liability of the carrier for most of them to
$20,000 per passenger. The manufacturers (General Dynamics had
built the hull under contract to McDonnell Douglas) were more
attractive defendants than the airline, because no special legislation
limited their liability. All suits, involving more than a thousand
claims, were brought against both defendants in the United States.
Under the Federal multi-district procedure, these were assigned to
a retired senior federal district judge in California for pre-trial
proceedings. Fortunately, he had had extensive experience in avia-
tion accident cases. By April, 1978 he was able to report4 that all
but a few of the 1123 claims had been settled and that $62,000,000
had been paid out in settlements, most of which exceed what would
have been recoverable under the Warsaw-Hague system. The author
takes the reader through the whole process, from the marshalling
of claims to the settlements, explaining how it was possible to settle
so many claims within four years of the accidents.6
The author discusses the effect of the Ermonville proceedings
upon the approach taken by defendants to claims arising out of
the Tenerife accident. In March, 1977 a K.L.M. Boeing 747, in the
course of take-off from Tenerife, collided in conditions of poor
visibility with a Pan-Am Boeing 747, which was also on the runway.
Five hundred and eighty-three persons died and sixty-one were in-
sConvention for the Unification of Certain Rules Relating to International
Carriage by Air 49 Stat. 3000; T.S. No. 87 (1929)
[the Warsaw Convention],
as am. by the Protocol to Amend the Convention for the Unification of
Certain Rules Relating to International Carriage by Air ICAO Doe. 7632
(1955)
[the Hague Protocol]. Canada has ratified both of these instruments
and has given effect to them in the Carriage by Air Act, R.S.C. 1970, c. C-14.
However, major Canadian airlines have increased the Warsaw-Hague limits
to $58,000 (U.S.) by an appropriate provision in their tariffs; see, e.g., Air
Canada International Passengers Rules Tariff No. PR-1, 14th revised page
53, “Liability of Carriers”, clause (B)(1)(b), which became effective on July
1, 1977.
4 For the report of the judge, Hall J., see (1978) 3 Annals of Air and Space
Law 615.
6It is interesting to compare this with the experience of Canadian claimants
in the Canadian Pacific accident in Tokyo, 1966. The Montreal actions gave
rise to two appeals in the Supreme Court of Canada: Montreal Trust Co.
v. Canadian Pacific Airlines Ltd [1977] 2 S.C.R. 793 and Ludecke v. Canadian
Pacific Airlines Ltd [1979] 2 S.C.R. 63. The reviewer understands that the
last settlements were made in 1980, fourteen years after the accident.
19811
BOOK REVIEWS – COMPTES RENDUS
jured. The defendants offered generous settlements to the Dutch
and American claimants, and in the case of the Dutch claimants
they offered ten to fifteen times the amount which would have
been awarded by Dutch courts. By September, 1978, 530 of 644
potential suits had been settled. Mr Speiser’s point is that the de-
fendants took this course to avoid litigation in the United States.
Furthermore, he suggests that the level of awards has risen since the
Ermonville accident. Confirmation is not available because of the
individual nature of claims and the fact that liability insurers are
understandably reluctant to disclose the details of settlements. Mr
Speiser’s remarks cause one to speculate on the consequences of a
catastrophe involving no American contacts, bearing in mind that
there were two, Pan Am and Boeing,” in the Tenerife accident. Will
settlements be made upon the basis of the Warsaw-Hague system? 7
If so, a substantial group of claimants will be at a disadvantage.
6The K.L.M. aircraft was clearly negligent. The Pan-Am aircraft and
Spanish air traffic control service were probably negligent. Boeing ,may
have been liable on a theory of crashworthiness. It follows that, while the
carriers in relation to their passengers enjoyed the benefit of the Warsaw-
Hague limits, as between each of them and the passengers of the othet-
aircraft, and as between Boeing and the Spanish A.T.C. on one side and
the passengers of both aircraft on the other, there was no limitation of
liability.
7 “The Warsaw/Hague system” is a misnomer in so far as it implies uniform
limits of liability. If the Warsaw Convention applies, the limit is $10,000
(U.S.). If the Warsaw Convention, as amended by the Hague Protocol, applies,
as it does in the overwhelming majority of cases, the limit is $20,000 (U.S.).
This situation is mitigated by the following:
a)
if the passenger’s journey commences in, terminates or contains an
agreed stopping-place in the United States, by virtue of the Montreal
Agreement of 1966, the carriers’ liability becomes strict (in place of the
presumption of fault of the Warsaw/Hague system) and the limit is
increased to $58,000 (U.S.) exclusive of costs and $75,000 (U.S.) inclusive
of costs;
b) a number of airlines, either voluntarily or by reason of the laws of
their states, have a limit ranging from $58,000 (U.S.)
(U.S.);
and
c)
in a number of countries where there is no specific legislation, the
unit of account used in the Warsaw/Hague system (the gold franc) is
converted at the free market price of gold with the result that the
limits, depending upon the market, are seven
those
mentioned at the commencement of this note.
to eight times
to $150,000
In fact, in response to other pressures, amending instruments have been
opened for signature, the Guatemala City Protocol of 1971 and four Montreal
Protocols of 1975. However, none of these have come into force; for a
discussion of these and the efforts for reform, see Szer, Consolidation of
the WarsawlHague System (1979) 25 McGill L.J. 217.
McGILL LAW JOURNAL
[Vol. 26
The developments described by Mr Speiser, the flaws in the
Warsaw-Hague system, and the tendency to transfer liability for the
death or injury of passengers from the carrier to the manufacturer
and others have sparked proposals for reform” that would allow a
reasonable distribution of the loss arising from an aircraft cata-
strophe among the carrier, the manufacturer and other parties which
may be liable.
To the extent that these proposals are prompted by the American
Bar, the impetus for them rests upon the continued willingness of
American courts to take jurisdiction over actions brought by foreign
claimants with respect to accidents occurring outside the U.S.A.
Mr Speiser points out that there is a growing tendency for American
courts to deny jurisdiction or stay proceedings on the basis of forum
non conveniens. Should this tendency prevail, the pressure for change
will diminish and future claimants will be prejudiced.
Criticism has been directed at the activities of the claimants’
attorneys. Some of it focuses on their conduct, which has been
likened to that of “ambulance chasers”. However, the main thrust
of the criticism is directed at the cost of the contingency fee system
and the inequity of forum-shopping. As to the contingency fee system,
the author provides convincing answers. “Forum shopping” is a
phrase that has unwarranted pejorative connotations. In Admiralty,
forum-shopping is institutionalized. Lord Morris of Borth-y-Gest
made this point in his dissenting judgment in The Atlantic Star:
It is natural and inevitable and, indeed, is an inherent feature of the
recognised system that a plaintiff will choose the place where he con-
siders that his legitimate interests will be best advanced. A shipowner
knows this and expects it just as a potential plaintiff knows it. If a
plaintiff chooses to sue in England and becomes enabled and entitled to
sue he knows that the proceedings may be stayed but will only be stayed
if they are oppressive or harassing or are brought in bad faith and for
no legitimate reason. If the law of one country is more favourable than
the law of another country, is a plaintiff to be criticized for choosing the
former? … It is suggested that the matter should be looked at objectively
with the interests of justice as the aim to be achieved. But this is only
to side-step the problem. It can be assumed that the court in any country
will be animated by a desire to do justice. It can be assumed that the
court in any country will do justice according to law. But there may be,
and presumably are, variations in the law and practice of different
countries. As a result there may be advantage for a plaintiff if he pro-
ceeds in one country rather than another.9
8 See Bin Cheng, Fifty Years of the Warsaw Convention: Where Do We Go
from Here? [1979] Z.L.W. 373; for another view, see Bockstiegel, Some Recent
Efforts for a Fundamental Reconsideration of the International Aviation
Liability System (1980) 5 Annals of Air and Space Law 17.
9 [1974] A.C. 436, 461 (H.L.).
19811
BOOK REVIEWS – COMPTES RENDUS
It is anomalous that forum-shopping is respectable for a class of
property for historical ‘reasons but not for death or injury claims.
There are signs, however, that attitudes are changing: for example,
Lord Justice Shaw in Castanho v. Brown & Root (U.K.) Ltd:
If someone who has been reduced to a human wreck can seek amends in
a more generous environment, his misfortune is the more offset by that
fortuitous circumstances. At least the victim will have the satisfaction
of knowing that the destruction of his own capacity to derive enjoyment
from physical life has had the consequence of augmenting his family’s
prospects of living securely on a good standard. It must not be thought
that this is to compensate the dependants of the victim. The satisfaction
is his, and is an important aspect of the amends he is entitled to receive.
The pursuit of that satisfaction is in my opinion to be commended as
justifiable, and not condemned as avaricious; and the provision of a
munificent measure of compensation is to be applauded and should not
be denigrated as extravagant or exorbitant. It would in my view be less
than humane to deny such a victim the opportunity to pursue his claim
for compensation wherever it will evoke the most generous response.’0
Stress has been placed in this review on the aviation aspects of
Lawsuit. This does not do justice to the wide range of questions
discussed in the book, such as the ‘deficiencies in the current system
of accident investigation and safety regulation, the allowable heads
of damages in case of wrongful death and the question of interest
on awards running only from the date of judgment and not from
the date of the commission of the tort.
This book makes splendid reading. It is stimulating and thought-
provoking, and should be read by any person interested in the law
of torts generally and particularly in international aviation cases.
M.A. Bradley*
10 [1980] 1 W.L.A. 833, 858 (C.A.).
* Of the Institute of Air and Space Law and the Faculty of Law, McGill
University.
McGILL LAW JOURNAL
[Vol. 26
Quebec and the Constitution 1960-1978. Par Edward McWhinney. Toronto:
University of Toronto Press, 1979, Pp. 170.
Le professeur Edward McWhinney a publi6 plus d’un ouvrage
en droit constitutionnel compar6, notamment sur les cours supr6-
rues et les chambres hautes de certaines f6d6rations. Sa contribu-
tion est d’autant plus pr6cieuse en cette p6riode de renouveau cons-
titutionnel. En effet, il est bon de connaitre le fonctionnement des
organismes et des institutions qui existent dans d’autres Etats
f6d6r6s, avant de les instaurer chez nous. Monsieur McWhinney a
r6sid au Qu6bec pendant plusieurs ann6es. I1 fut l’un des membres
de la c6lbre Commission Gendron sur la situation de la langue
frangaise au Qu6bec. Juriste anglophone, il a acquis une connais-
sance profonde des problimes linguistiques au Qu6bec ainsi que
des problmes de “coexistence” et d’interactions culturelles au Cana-
da. Enfin, il fuit l’un des conseillers de la Commission Pepin-Robarts
sur l’unit6 canadienne. Son dernier ouvrage traite du Qudbec et
de la Constitution pendant la p6riode dite de la “R6volution tran-
quille”. L’auteur y analyse les rapports de forces Qudbec-Ottawa et
Qu6bec-autres provinces. I1 a bien saisi le r6le crucial rempli par
les intellectuels au Qu6bec, dans’les universit6s, les m6dia et les
partis politiques; cette participation s’est manifest6e, au cours des
vingt derni~res ann6es, plus qu’h aucune autre p6riode de notre
histoire peut-8tre! II a su mettre en lumi~re la r6action des franco-
phones et des anglophones aux probl~mes constitutionnels qui ont
surgi depuis deux d6cennies. Ami de la langue et de la culture
frangaises, son exp6rience en droit compar6 et sa connaissance
6tendue des deux syst~mes juridiques de notre pays sont, ici, mises
? profit.
Monsieur McWhinney essaie de discerner ce qui est proprement
choix et questions politiques, de ce qui est r6forme des structures
constitutionnelles. On peut faire beaucoup sans changer la Consti-
tution, dit-il, mais vient un moment oii cette derni~re elle-meme
doit etre r~vis~e. L’ouvrage fait de nombreuses allusions a ce qui se
passe ailleurs et n’en devient ainsi que plus utile, car les f~d6rations
ne vivent pas en vase clos, et de leurs exp6riences respectives, nous
pouvons tirer des legons profitables. En ce sens, le syst~me am6ri-
cain a influenc6 le f~dralisme canadien; de m~me pour les f~d-
ralismes allemand, suisse et australien.
Sur l’ensemble des treize chapitres, on ne se surprendra pas
qu’il consacre un chapitre aux droits linguistiques au Qudbec. II
a bien raison, car c’est lh un des points les plus importartts de la
rdvision constitutionnelle au Canada. La derni~re confdretice cons-
titutionnelle, qui s’est d6roul6e
. Ottawa du 8 au 13 septembre
1981]
BOOK REVIEWS – COMPTES RENDUS
1980, fut 6loquente h ce sujet. Le premier chapitre situe le problime
dans son contexte g6ndral, alors que le second illustre l’6volution
de la Constitution canadienne; cette synth~se est de lecture agr6able
‘histoire. L’auteur consacre son troisikme chapitre
et fait sa part h
aux idles “constitutionnelles” de la “R6volution tranquille” et passe
en revue les travaux des juristes et des hommes politiques, qui ont
6crit sur la question. Au chapitre suivant, il se penche sur les criti-
ques formuldes au Qudbec quant h l’inad6quation du British North
America Act’ dans certains secteurs. I1 expose, ensuite, au chapitre
cinq, le r6le jou6 par les premiers ministres Pearson et Trudeau
sur le plan de la rdvision constitutionnelle et traite de la Loi sur les
langues officielles,2 de la Charte de Victoria et du Rapport Molgat-
MacGuigan.
Monsieur McWhinney consacre, dans son sixime chapitre, plus
de vingt pages h la Loi sur la langue officielle3 et h la Charte de la
langue franaise,4 qui ont eu un impact 6norme, non seulement au
Qu6bec, mais dgalement sur la sc6ne fdd6rale et dans plusieurs
autres provinces. Selon lui, la reaction des provinces h la “R6volu-
tion tranquille” fat lente et est encore tres parcimonieuse. L’Ontario
ut la premiere province h sonner le rdveil. Au chapitre huit, on
analyse, entre autre choses, quelques d6cisions de la Cour supreme
qui ont fait 6poque en droit constitutionnel, dont le renvoi sur la
loi anti-inflation en 1976,6 les arr~ts Dionne6 et Capital Cities1 sur
la ciblodistribution, ainsi que la ddcision Canadian Industrial Gas
and Oil Limited8 en mati~re fiscale. Ces jugements se sont av6rds
cardinaux dans l’orientation du f6d6ralisme et l’auteur l’a bien sou-
lignd. I1 analyse enfin les arr6ts c61kbres impliquant les “Gens de
l’air”.
L’autorit6 f6d6rale prit des initiatives en mati~re de rdvision
constitutionnelle apr~s celle de Victoria, dont la creation de la Com-
mission de l’unit6 canadienne, et mit elle-m~me de l’avant un docu-
ment, Le temps d’agir, et un projet d’amendement constitutionnel,
le projet de loi C-60.1 Les chapitres neuf et dix en traitent abon-
damment, en insistant plus particuli~rement sur la rdforme du
‘Voir 30-31 Vict., c. 3 (U.K.), tel qu’amend6.
2 Voir S.R.C. 1970, c. 0-2.
3 Voir S.Q. 1974, c. 6.
4 Voir L.R.Q., c. C-1.
5 Voir [1976] 2 R.C.S. 373.
6 Voir Rigie des services publics v. Dionne [1978] 2 R.C.S. 191.
1Voir Capital Cities Communications Inc. v. C.R.T.C. [1978] 2 R.C.S. 141.
8 Voir Canadian Industrial Gas and Oil Ltd v. Government of Saskatchewan
[1978] 2 R.C.S. 545.
9 Ce projet de Ioi rut introduit h la Chambre des Communes le 20 juin 1978.
McGILL LAW JOURNAL
[Vol. 26
Sdnat et de la Cour supreme; l’auteur aurait, semble-t-il, souhait6
un S6nat 6lu comme aux Etats-Unis et en Australie, par exemple.
II est particuli~rement en mesure de parler des r6formes des insti-
tutions centrales h cause de sa grande exp6rience et de ses nombreux
6crits sur la question. Le chapitre onzi~me r~ffre au r6le jou6, en
1978, par le Comit6 du S6nat sur la Constitution et par le Rapport
de l’Association du Barreau canadien sur la Constitution;10 sur ce
dernier document cependant, la critique parait fort s6v~re. Dans
son avant-dernier chapitre, l’auteur dit qu’il n’y a pas de solutions
faciles au dilemme constitutionnel canadien. Il dcrit 6galement:
To recapitulate one of our opening points, most of the problems of
contemporary federal systems, including Canada’s are not constitutional
but societal, and a constitutional charter will have at best only a
marginal effect on those problems.”
II se peut qu’il ait raison en bonne partie, mais il ne faudrait pas
minimiser 1’effet bdn6fique qu’aurait au Qu6bec une Constitution
6crite au Canada, par des Canadiens, dans les deux langues offi-
cielles. Quelques changements pertinents au chapitre du partage
des pouvoirs, et au niveau des institutions centrales, pourraient
avoir un effet profond et durable au Qudbec et au Canada, du moins
le pensons-nous. Dans son dernier chapitre, l’auteur passe en revue
les conf6rences constitutionnelles de novembre 1978 et de f6vrier
1979 et ne jette qu’un coup d’oeil rapide au rapport Se retrouver
de la Commission Pepin-Robarts.
En conclusion, nous pouvons dire que m~me si les juristes et
les politologues de langue anglaise au pays sont intervenus dans
le ddbat constitutionnel h des p6riodes diff6rentes, dont plusieurs
avec un certain retard, leur concours, leurs iddes et leurs suggestions
sont essentielles et toujours souhaitables; le Qu6bec, en effet, atta-
che beaucoup d’importance h leurs recommandations. L’un des tous
premiers A intervenir, le professeur Edward McWhinney, a su main-
tenir sa contribution au plus haut niveau et nous lui en savons gr6.
Gdrald A. Beaudoin*
20 Voir Vers un Canada nouveau (1978).
11 Voir A lap. 143.
* De la Facult6 de droit de l’Universit6 d’Ottawa.
1981]
BOOK REVIEWS – COMPTES RENDUS
Vocabulaire de la “common law”. Tome I. Moncton: Les Editions du
Centre universitaire de Moncton, 1980. Pp. 235.
L’arriv6e sur le march6 d’un ouvrage comme ce vocabulaire nu
peut que r6jouir les professeurs qui enseignent la common law en
frangais et, sans nul doute, ceux h qui incombe la tache de traduire
les lois du Manitoba. Comme l’indique Me Bastarache, doyen de
l’Ecole de droit de l’Universit6 de Moncton, dans sa pr6face, le vo-
cabulaire a dt6 initialement conru pour r6pondre au d6fi linguisti-
que pos6 par l’enseignement de la common law en frangais; h cet
6gard, il constitue un outil d’une valeur incontestable. N6anmoins,
l’importance de l’ouvrage demande h itre 6valu6e h un tout autre
point de vue: celui de la normalisation du frangais juridique au
Canada, voir m~me ailleurs. A la lumiire de cette optique plus
large, on doit appuyer la d6cision du rddacteur de faire publier ce
vocabulaire imm6diatement, bien qu’il ne constitue qu’une tranche
d’un projet de dictionnaire frangais de la common law. Ce tome
traite principalement du droit des biens, domaine plut6t technique
ot l’on retrouve des termes parfois archalques. I1 n’existe guZre
d’autre source terminologique t l’heure actuelle. La juridiction f6-
d6rale et, par cons6quent, les lois f6d6rales, ne couvrent que cer-
tains aspects de ce domaine. La Cour supreme entend peu de causes
relevant du droit des biens. M~me le Nouveau-Brunswick, seule pro-
vince de common law officiellement bilingue jusqu’k tout r6cem-
ment, ne l’est devenue qu’il y a quelques ann6es.
Ce m6me probl~me de sources juridique et terminologique se
reflte dans le vocabulaire. Les lexicographes se sont souvent r6fu-
gi6s, de fagon assez ing6nieuse d’ailleurs, dans le vieux frangais, qui
est 6videmment h l’origine de plusieurs expressions juridiques pr6-
sentant des difficult6s de taille au traducteur. Fee devient alors
“fief”, feoffee est rendu par “fieff6” et feoffment par “enfieffement”;
de m6me, seisin devient “saisine”, ce qui permet au lexicographe de
traduire la terrifiante expression foe!fment by livery of seisin, par
“enfieffement par livr6e de saisine”. Les lexicographes ont cependant
dvit6 l’emploi du vieux frangais dans certains cas, notamment celui
de mortgage, qu’ils ont pr6fr6 rendre par “hypoth~que”, bien que
le terme anglais tire ses racines 6tymologiques du frangais normand
import6 en Angleterre lors de la ConquAte. 1 Il ne s’agit pas ici d’une
mauvaise traduction de la part d’un traducteur ignorant la distinc-
tion entre la notion de mortgage en-common law et d’hypoth6que en
droit civil, mais bien d’un choix exerc6 par le lexicographe en plei-
ne connaissance de cause. I1 l’explique en disant qu’il vaut mieux,
I Voir Oxford English Dictionary.
McGILL LAW JOURNAL
[Vol. 26
pour 6viter un jargon juridique truff6 d’archa’smes, emprunter au
droit civil des termes qui, une fois introduits dans le syst6me de
common law, rev&iront une signification plus ou moins diffdrente
de l’originale. On peut &re d’accord avec le lexicographe dans la
mesure oii l’emploi d’un tel mot est restreint au niveau provincial,
mais il nous semble que cet usage pourrait nuire h la normalisation
du franrais juridique h travers le Canada. Ce probl~me pr6sente, en
effet, un cas oit le frangais juridique aurait avantage &L se montrer
plus prdcis que l’anglais, puisque le mot mortgage recouvre deux
notions du systeme canadien de common law. Dans les provinces
qui n’ont pas adopt6 le syst~me Torrens d’enregistrement des biens
fonciers, le mot mortgage d6signe un transfert du titre au crdancier,
sujet au droit de rachat (equity of redemption) que poss6de le d6-
biteur, tandis que dans les provinces ayant adopt6 ce syst~me, le
mot mortgage rdf~re h une garantie grevant le bien du d6biteur
qui reste toujours propri6taire. Cette deuxi~me signification se rap-
proche 6videmment davantage de l’hypoth~que en droit civil. I1 n’est
pas surprenant que les lexicographes se soient souvent fi6s aux lois
du Nouveau-Brunswick en vue de normaliser le frangais juridique
dans cette province, d’autant plus que celles-ci constituaient l’une des
rares sources disponibles. Parfois, cette confiance entraine un re-
sultat qui laisse h desirer. Par exemple, power of appointment est
rendu par “mandat de designation”. A notre avis, le mot “mandat”
implique une obligation d’agir; mais la personne dotde d’un power
of appointment n’est g6ndralement pas tenue d’exercer son pou-
voir.2 Mieux vaudrait, peut-6tre, ddcrire cette rdalit6 juridique par
“pouvoir de designation” ou “pouvoir de nomination”.
Malgr6 Ies quelques critiques que l’on peut lui adresser, ce tome
demeure un outil indispensable h tous ceux qui s’int6ressent h l’en-
seignement ou h l’exercice de la common law en frangais. Il devrait
aussi servir A engager le processus de normalisation du frangais juri-
dique et h confdrer ainsi au projet de dictionnaire un caract~re dd-
finitif. On attend avec impatience la parution du prochain tome.
Terence Wade*
2 Voir McPhail v. Doulton [1971] A.C. 424 (H.L.) et Re Manisty [1974] 1
Ch. 17.
* De McGill University et l’Universit6 de Moncton.
