“Equity” in the Civil Code of Québec (“CCQ”) is a broad notion of fairness, especially in relation to discretion exercised by a judge. It is unrelated to its common law counterpart meaning the body of law pertaining to such “equitable remedies” as injunctions, estoppel, and trusts.[1]
There are two references to “equity” in the CCQ. First, in the regime governing movable accession; equity limits the usual right of accession in disputes involving circumstances unforeseen by the CCQ itself.[2] In this instance, “equity” is fairness in balancing the competing interests of disputing parties.[3] Second, in the regime governing obligations, validly formed contracts are said to include not only the express terms of the agreement, “but also [...] what is incident to it […] in conformity with usage, equity or law.”[4] Notable examples of such implicit obligations have been the obligation of clubs and professional associations to follow certain principles of procedural equity when disciplining their members.[5] In these cases, procedural equity was found to be an implicit term in the contract between the association and its members, even if the association itself did not act as a tribunal or otherwise exercise quasi-judicial functions.[6]
It must be emphasized that when the CCQ speaks of “equity” or the “principles of equity”, it is in reference to this broad notion of fairness in decision-making and not any regime associated with the common law. In brief, “equity” in common law jurisdictions refers to a supplemental body of law that developed in parallel to the common law, reaching back to the Court of Chancery in England in the 15th century.[7]
The CCQ’s usage of “equity” remains distinct from its counterpart in French civil law as well. The Napoleonic Code reflects the post-Revolutionary goal of eliminating any law-making power on the part of judges, whose roles were to be limited to the direct application of the law.[8] To this day, équité in the French legal system carries with it the somewhat negative connotation of judges derogating from written law in the name of an independent, or subjective, notion of fairness.[9] By contrast, “equity” (as the subjective notion of fairness) is generally not regarded with suspicion in Quebec.[10]
[1]Anne-Françoise Debruche, Équité du juge et territoires du droit privé - Le paradoxe de l'emprise immobilière dans les systèmes romanistes et de common law (Cowansville, Que: Yvon Blais, 2008) at 359 [Debruche].
[2]Art 975 CCQ.
[3]F Allard et al, eds, Private Law Dictionary of Obligations and Bilingual Lexicons, (Cowansville, Que: Yvon Blais, forthcoming) sub verb “equity (1)” [Allard]. Similarly, art 976 CCQ may be understood as an equitable constraint on the right of ownership, though it does not explicitly say so. For a more detailed study of equity acting as a limit on rights, see Debruche, supra note 1.
[4]Art 1434 CCQ.
[5]Senez v Montreal Real Estate Board, [1980] 2 SCR 555; Delage v Club de Golf St-Lambert Inc, [2003] R.L. 454.
[6]Ibid at para 6.
[7]Allard, supra note 3 sub verbo “equity (2)”.
[8]Art 5 Code Civil (1815-).
[9]Debruche, supra note 1 at 23-4.
[10]This is in part due to the federalist court system of Canada necessitating longer judgments from Quebec judges. This type of reasoning admits a greater degree of subjectivity than the “judicial syllogism” of France. For more, see: Debruche, supra note 1 at 26-7.
