BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
J.-E. Brassard, FinancialAssistance for Farmers: A Lawyers Guide to Federal
Programs. Toronto: Carswell, 1987. Pp. xiv, 83 [$32.00]. Reviewed by Jane
Glenn.*
This slim volume bears witness to the growing interest in agricultural
law amongst members of the legal profession. The 1980’s have thus far seen
the publication of some eight individual volumes as well as at least twenty-
eight law review articles or case comments –
in sharp contrast to the eleven
law review items in the 1970s.1 Admittedly, much of this recent attention
is explained by the adoption of provincial legislation protecting agricultural
land, particularly Quebec’s An Act to Preserve Agricultural Land,2 but more
recently other subjects –
such as marketing boards, taxation, organizational
structure and agricultural credit –
have come to the fore. In fact, both
Ontario and Quebec have recently held continuing education programmes
devoted to problems of farm organization and management.3 Financial
Assistance for Farmers: A Lawyers Guide to Federal Programs4 represents
a timely addition to this growing library, which the author, as Legal Counsel
(National) to the Farm Credit Corporation, is well-qualified to write.
The presentation of the material is both descriptive and prescriptive.
After a short historical introduction, the author, in what is by far the longest
chapter (46 pages), entitled “Existing Legislation”, reviews federal agricul-
tural assistance programmes and related financial measures and incentives.
As such, the study purports to be “a simple outline of what is available”
and “not … an exhaustive examination” of it.5 In spite of the author’s
disclaimer, however, it would be wrong to regard this study as simply an
expansion upon one particular aspect of the author’s earlier treatment (to-
“Agriculture” prior to 1970.
*Of the Faculty of Law, McGill University.
‘The Index to Canadian Legal Periodical Literature did not have a separate heading for
2L.R.Q., c. P-41.1. Two of the books and some eleven law review articles deal with this
statute. Somewhat surprisingly, similar legislation in British Columbia, Agricultural Land Com-
mission Act, R.S.B.C. 1979, c. 9, has not triggered the same interest amongst lawyers of that
province.
3Canadian Bar Association – Ontario, Continuing Legal Education, Closing the Barn Door
Before: Advising on Farm Related Matters ([Toronto]: The Association, 1986); Chambre des
Notaires du Qu6bec, Cours de Perfectionnement du Notariat, 1985 (see [1985] C.P. du N.).
4J.-E. Brassard, Financial Assistance for Farmers: A Lawyer’s Guide to Federal Programs
(Toronto: Carswell, 1987).
5Ibid. at iii.
1987]
BOOK REVIEWS
gether with Sherwin Lyman) of federal and Ontario legislation touching
upon agriculture. 6 The earlier work contains only the briefest of summaries 7
while the later one is both more elaborate and more discursive. The pre-
scriptive part of the study is found in the two remaining, and considerably
shorter, chapters entitled “Legislation for the 90’s” (c. 3) and “Conclusions”
(c. 4), in which the author suggests possible new directions in dealing with
current rural economic problems.
The bulk of the book, then, is found in Chapter 2, with pride of place
evidently given to the discussion of agricultural credit. The chapter treats
such as long-term mort-
not only direct financial asssistance programmes –
gages (to a maximum of thirty years) granted by the government itself (or
more precisely by the Farm Credit Corporation) under the authority of the
Farm Credit Act,8 intermediate and short term government-guaranteed bank
loans under the authority of the Farm Improvement Loans Act, 9 and of the
Banks and Banking Law Revision Act, 198010 section 178 securities – but
also such diverse indirect measures as advance payment for crops, crop
insurance schemes, fruit and vegetable storage construction assistance, var-
ious fiscal advantages, agricultural stabilization payments and a series of
measures restricted in application to the prairie provinces. 1 The chapter
ends with a statement of creditors’ rights in the event a farmer does not
meet his debts.
As a simple outline of what is available, this chapter undoubtedly ac-
complishes its purpose. It is both up-to-date and comprehensive, including
material not readily available elsewhere, and it is perhaps unfair to suggest
it ought to have done something else or to have done it differently. Never-
theless, the very topicality of the treatment risks dating the book more
rapidly than might otherwise be the case. Some of the material included,
such as a discussion of certain interim financial provisions restricted to the
late 1950’s, 1960’s or 1970’s,12 is already of marginal interest and other
6S. Lyman & J.-E. Brassard, Agriculture, volume IA, Canadian Encyclopedic Digest (Ontario)
3d ed. ([Toronto]: Carswell, 1983).
7The entire discussion of federal agricultural credit programmes, for example, is only two
pages long: ibid. at 58-60.
8R.S.C. 1970, c. F-2.
9R.S.C. 1970, c. F-3.
10S.C. 1980-81-82-83, c. 40.
“These range from the Prairie Farm Assistance Act, R.S.C. 1970, c. P-16, as rep. S.C. 1985,
c. 21, to the Western Grain Transportation Act, S.C. 1980-81-82-83, c. 168.
‘2E.g., Prairie Grain Loans Act, S.C. 1960, c. 1 (government guarantee of loans made before
1960); Prairie Grain Producers Interim Financing Act, S.C. 1956, c. 1 (government guaranteed
loans to grain producers in 1956); Prairie Grain Provisional Payments Act, S.C. 1960, c. 2;
Prairie Grain Provisional Payments Act, 1969-70, S.C. 1969-70, c. 10 (for unthreashed grain
in 1959-1960 and 1969-1970 respectively); the small farm development programme (ended
1979); Two-Price Wheat Act, S.C. 1974-75-76, c. 54 (applicable 1974-1980).
REVUE DE DROIT DE McGILL
[Vol. 32
material will obviously become less relevant in time. Of course, this risk is
present in any descriptive treatment of an area of law, and particularly so
in an area as volatile as agricultural credit.,However, one cannot help wishing
that the author had on occasion substituted analysis for description. One
wonders, for example, what roles are in fact played by the various levels of
governments and private lending institutions in providing agricultural
credit? Why is government responsibility under the Farm Improvement
Loans Act 13 now being phased out? Why do the Farm Credit Act Interest
Rates Regulations’4 limit repayment terms to five, six, ten and fifteen years
whereas the Farm Credit Act’ 5 itself authorizes thirty year terms?
The prescriptive section of the book, potentially the more interesting,
is disappointing. The author is obviously concerned with the problems cur-
rently facing the family farm and outlines a number of imaginative and
innovative solutions, ranging from the creation of new financing instru-
ments, such as an obligation “with no fixed or par value (and no fixed
interest but a rate tied to market value) redeemable according to an index
of agricultural returns or equity accumulation”’16, or a concept of “con-
vertible participating preferred shares”‘ 7 through to repeal of section 31 of
the Income Tax Act’ 8 (which restricts deductibility of farm losses from non-
farm income). However, this section of the book disappoints for two par-
ticular reasons. Firstly, the various proposals found in the concluding chap-
ters are unrelated to discussion elsewhere in the book. The suggestions
concerning new debt instruments, for example, could profitably have been
linked to the discussions of Canadian Farm Loan Bonds, small business
development bonds, shared risk mortgages and commodity-based mort-
gages; and those concerning debt rearrangement could have referred back
to preceding discussions of recent provincial and federal developments in
this regard. Secondly, and more importantly, the suggestions put forward in
the concluding chapters, while admittedly interesting, are merely sketches;
they have not been developed to the extent the overall length of the book
would easily admit. To put it quite frankly, this part of the book reads like
a provocative after-dinner speech, one that stimulates more than it satisfies.
13Supra, note 9.
14SOR/84-28.
15Supra, note 8. Quebee’s Union des producteurs agricoles, for example, has objected to the
provincial Office du credit agricole’s preference for twenty year terms over the twenty-nine
years authorized by law as forcing young farmers to meet unnecessarily high repayment sched-
ules: see Union des producteurs agricoles, Le financement agricole, M~moire pr~sent
fi ]a
Commission parlementaire de l’agriculture (March 1985) at 33.
16Brassard, supra, note 4 at 64.
7Ibid. at 64-65.
18S.C. 1970-71-72, c. 63.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
967
But this study does stimulate and for that reason, should be read by
anyone interested in the current plight of the Canadian farmer. Its more
descriptive elements alone ensure it a place on the bookshelf of any lawyer
practising agricultural law.
968
McGILL LAW JOURNAL
[Vol. 32
R.K. Paterson et al., Canadian Regulation of International Trade and
Investment. Toronto: Carswell, 1986. Pp. xxxix, 429 [$78.00]. Reviewed by
David Stevens.*
It is somewhat remarkable that the legal literature in Canada on national
and international trade law is as sparse as it is. Canada is one of the world’s
leading trading nations, with some 30% of its gross domestic product ac-
counted for by exports of its goods and services.’ Compared to its two
leading trading partners, the United States (10%) and Japan (14%), this is
a significant figure and demonstrative of Canada’s need for a “liberal and
rule-oriented” international trading system and a legal profession having
some expertise in the international and national regulation of trade. 2 The
last decade or so has witnessed considerable growth in interest on the part
of Canadian law faculties in the field of international trade law and the
consequent publication of many valuable contributions to different aspects
of trade regulation by academic and non-academic scholars alike.3 Until the
publication of Professor Robert K. Paterson’s Canadian Regulation of In-
ternational Trade and Investment, however, no comprehensive Canadian
text had appeared. 4 Professor Paterson’s book is, therefore, a welcome and
timely contribution to the Canadian legal literature on the subject.
Professor Paterson’s book is divided into two parts. Part I, entitled
“Canadian Regulation of International Trade”, is composed of 7 chapters.
It deals with the following topics: the GATT (c. 1); Canadian tariff legislation
(c. 2); import and export controls in Canada (c. 3); the Special Import
Measures Act 5 and the implementation of the GATT Agreement on Gov-
ernment Procurement in Canada (c. 4); export financing in Canada (c. 5);
*Of the Faculty of Law, McGill University.
‘R.K. Paterson et al., Canadian Regulation of International Trade and Investment (Toronto:
Carswell, 1986) at 3.
‘Ibid.
3See F Stone, Canada, the GATT and the International Trade System (Montreal: Institute
for Research on Public Policy, 1984); J.-G. Castel, A.L.C. de Mestral & W. Graham, Inter-
national Business Transactions and Economic Relations: Cases Notes and Materials on the
Law as it Applies to Canada (Toronto: Emond Montgomery, 1986); J. Quinn & P. Slayton,
Non-Tariff Barriers After the Tokyo Round (Montreal: Institute for Research on Public Policy,
1982). Carswell has recently announced the establishment of a Canadian journal on interna-
tional trade law, and the Institute for Research on Public Policy and the C.D. Howe Institute
have each sponsored the publication of several monographs on Canada trade policy. Never-
theless, Canadian works on the legal dimension of international trade regulation remain rel-
atively sparse.
4Supra, note 1. Three chapters of the book were contributed by three collaborators: c. I on
the GATT was written by J.A. Finlayson; c. 6 on Canadian trade with the EEC was written
by P Raworth; and c. 7 on Canadian trade with Japan and the U.S. was written by M.D.H.
Smith.
5S.C. 1984, c. 25.
1987]
BOOK REVIEWS
and Canada’s trade relations with the United States, Japan and the European
Economic Community (c. 6-7). Part II, entitled “Canadian Foreign Invest-
ment Law”, is composed of three chapters. It deals with the international
regulation of foreign direct investment and of international trade in services
(c. 8), the legislative regulation of foreign direct investment in Canada (c.
9) and the protection of Canadian foreign direct investment in developing
countries (c. 10). The treatment of the various topics throughout is, for the
most part, well-balanced, though some topics, such as the GATT and Ca-
nadian tariff legislation, are treated in less than thorough detail, no doubt
on account of the availability of several comprehensive treatments of these
topics elsewhere.6
Two or three key features of the Canadian situation compel special
emphasis in a text of this sort. Professor Paterson’s text meets these exi-
gencies reasonably well, both in terms of topics covered and in terms of
depth of coverage. One of the principal features of Canada’s peculiar situ-
ation is the extent to which our foreign trade is dominated by our economic
relationship with the United States. In 1984, two-way trade between the
two countries totalled $156 billion dollars (Canadian), with 76,3% of Can-
ada’s merchandise exports going to the United States and 71,4% of Canada’s
total imports coming from that country.7 A portion of the text, therefore,
provides an overview of American trade policy and legislation. Chapter 7
contains a summary of the comparatively extensive power of the American
executive to negotiate and implement international trade agreements, to
take protective measures under the GATT, to effect safeguard measures pur-
suant to article 19 of the GATT, and to impose import quotas. There are
also are several pages in Chapter 7 devoted to a concise survey of the
American anti-dumping, subsidy, and export control legislation. Although
the treatment of these various topics is brief,8 there is sufficient information
in the text to provide the reader with a clear picture of the structure of
American trade policy and legislation, and enough guidance as to other
sources for further detailed research and reading. 9
6The leading texts on the GATT are two American publications: J.H. Jackson, World Trade
Law and the Law of GATT (New York: Bobbs-Merrill, 1969); K.W. Dam, The GATT Law and
International Economic Organization (Chicago: University of Chicago Press, 1970). Canadian
tariff law is treated thoroughly in M. Irish, Customs Valuation in Canada (Don Mills: C.C.H.,
1985). Canadian import policy generally is treated in D. Protheroe, Imports and Politics: Trade
Decision Making in Canada (Montreal: Institute for Research on Public Policy, 1980).
7Paterson et al., supra, note I at 239.
8These complex topics are covered in less than 20 pages.
9See R. de C. Grey, United States Trade Policy Legislation, A Canadian View (Montreal:
Institute for Research on Public Policy, 1982), which remarkably is not cited in the Paterson
book; J.H. Jackson, Legal Problems of International Economic Relations, Cases Materials and
Text (St Paul: West, 1977); E. McGovern, International Trade Regulation: GAT,
the United
States and the European Economic Community (Exeter Globefield, 1982).
REVUE DE DROIT DE McGILL
[Vol. 32
Similarly, the text provides an overview of trade regulation in Japan
(which in the early 1970’s replaced the United Kingdom as Canada’s second
most important trading partner) and the EEC. The treatment of the EEC is
considerably more extensive than that of either Japan or the United States,
largely due, one surmises, to the complexity of trade regulation in the EEC,
rather than the relative importance of Canada’s trading relations with it.
Once again, more detailed treatments of these topics exist elsewhere. But
Professor Paterson’s book is a useful introduction, providing the reader with
sufficient detail as to the main outlines of Japanese and EEC foreign trade
policy and regulation, and many suggestions for further research and
reading.
Another aspect of the Canadian situation which might influence the
design of a book of this sort is the importance of foreign direct investment
in the Canadian economy. Part II of Professor Paterson’s text deals with the
international and national regulation of foreign direct investment in Canada.
But it also deals with the regulation of trade in services, both nationally
and internationally, and the protection of Canadian foreign direct invest-
ment in the developing countries of the Third World. Trade in services might
better have been included in Part I. In any event, its relevance to inter-
national trade is obvious and undisputed. The relevance of the international
investment topics, is not, however, readily apparent and, at first sight, their
inclusion in the text appears to be overly-ambitious and tangential. Perhaps
their inclusion is best explained on the basis that Canadian trade and in-
vestment law form an integrated case study, given Canada’s peculiar situ-
ation insofar as foreign direct investment is concerned.’ 0 Yet, as is stated
by Professor Paterson in the preface to the book, one might expect a Can-
adian text on international commercial law also to treat of such matters as
technology transfer, transfer pricing, joint development projects, the private-
law aspects of international trade, the extra-territorial application of laws
relating to commerce and trade (and in particular, the extra-territorial ap-
plication of American anti-trust legislation), the prospects and significance
of a Canada-U.S. free trade agreement, the Canada-U.S. Auto Pact and the
international regulation of monetary affairs. None of these complex topics
is treated in the text. Professor Paterson and his co-authors are not to be
faulted in this. Their text is the first contribution of its kind in the Canadian
setting. And the decision to include investment and exclude these others is
perhaps understandable.
Finally, Canada has in the past several years enacted legislation and
adopted administrative policies implementing its obligations resulting from
‘This would not explain the inclusion of Canadian investment in the Third World which,
until recently, has been relatively meagre. See Paterson et al., supra, note 1 at 343 (roughly
16% of total Canadian foreign direct investment in 1980).
1987]
CHRONIQUE BIBLIOGRAPHIQUE
the Tokyo Round of the GATT negotiations. These have replaced and/or
supplemented previous policy instruments governing the Canadian aspects
of international trade. For the first time treatment of such topics as Canadian
anti-dumping and countervailing duty legislation (the Special Import Meas-
ures Act’ 1), Canadian customs and tariff legislation (the Customs Act’ 2 and
the Customs TarifJ3), Canadian “safeguard” legislation (contained in the
Customs Tarffl4 and the Export and Import Permits Act’ 5) and Canadian
regulation of the import of textiles and clothing (the Textile and Clothing
Board Act) are treated in one volume. Occasionally the treatment is spare
I would have liked to have seen more on Canadian trade policy formation
–
at the administrative and legislative level and the effect of American export
control laws on Canadian trade with Cuba and the People’s Republic of
but generally the treatment is sufficiently detailed
China, for example –
and in some areas quite thorough.
Perhaps the book is overly ambitious, perhaps not ambitious enough.
On the one hand, there is a very wide range of topics covered, a few in a
cursory fashion. On the other, the topics surveyed suggest in themselves
that others might also have been included. Professor Paterson and his co-
authors, however, faced a formidable task in setting out to write the first
Canadian treatment of international commercial law as a whole. The balance
they struck is a good one and the book will, as a consequence, serve as a
basic resource work for practitioners, public administrators and law students
alike. The writing is of a uniformly high standard and the extensive bibli-
ographies at the close of each chapter, very useful.
I Supra, note 5.
12S.C. 1986, c. 1. The new act revises customs administration in Canada and implements
Canada’s obligations under the GATT Customs Valuation Code.
13R.S.C. 1970, c. 41.
14lbid., ss 7, 7.1 and 8 as am. Special Import Measures Act, supra, note 5, ss 102-103.
15R.S.C. 1970, c. E-17, ss 5(2)-5(3) as am. Special Import Measures Act, ibid., s. 104.
McGILL LAW JOURNAL
[Vol. 32
Lynn Smith, ed., Righting the Balance: Canada’s New Equality Rights.
Saskatoon: Canadian Human Rights Reporter, 1986. Pp. xviii, 426 [$52.50].
Reviewed by Allan R. Hilton.*
This book is a collection of fifteen essays, which deal with a wide range
of issues arising out of the coming into force on 17 April 1985 of section
15 of the Canadian Charter of Rights and Freedoms.’ Most of the essays
were presented initially as papers at the National Symposium on Equality
Rights held in Toronto in January of 1985. Unfortunately, the reader is left
to guess which of the essays were presented at the Symposium and which
were not, for it is apparent that no attempt has been made to update the
text of some of the articles since the date the papers were presented.
The seven organizers of the Symposium took it upon themselves to
“inform and generate discussion among senior decision-makers from gov-
ernment, the private sector, labour, academia, the legal profession, and
equality-seekers organizations”, 2 so that when section 15 of the Charter
came into effect, the dialogue about its implementation would be well under
way. The volume consists of five parts, and indeed the editors are right when
they say that thb essays reflect the wide range and complexity of issues raised
by the implementation of section 15 of the Charter.
There is, however, a rather unequal division of the subject matters
covered. The first three parts, which deal with the social and political context
of section 15 rights, the legal context of these rights and issues of legal
interpretation, contain no less than twelve of the fifteen articles. There are
only two articles dealing with remedies (both of which are excellent), and
only one article treating the fascinating subject of evidentiary issues. Un-
fortunately, this article, by Professor Jane M. Picker of the Cleveland-
Marshall College of Law, Cleveland State University, is of doubtful value
in the Canadian context, as it makes no attempt to compare the American
experience to what may be the Canadian experience in the future.
The editors have also included two other articles by American authors
which to a greater or lesser extent offer analyses of equality issues under
the United States Constitution. The best of these is Professor Kent Gree-
nawalt’s paper entitled “A Neighbor’s Reflection on Equality Rights”, 3 which
provides an interesting approach to Canadian Charter issues from an Ame-
rican perspective.
*Of the Bar of Montreal.
‘Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
2L. Smith, ed., Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian
c. II [hereinafter Charter].
Human Rights Reporter, 1986) at viii.
3In Smith, ed., ibid., 189.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
The editors suggest that this collection represents “a contribution to a
rapidly developing area of Canadian law and illustrates the interdependent
moral, philosophical, legal, political, social, and economic dimensions of
equality-making”. 4 From any perspective, this is an ambitious undertaking,
but the essays do offer a basis for thought-provoking analysis and discussion
for those engaged in the development of Charter litigation. As a reference
source, however, it is inevitable that the book depreciates in value, as a
consequence of the rapidly developing case law on the Charter, especially
as enunciated by the Supreme Court of Canada.
The Symposium took place in January of 1985, and the book was
published at some point in 1986. There is an unfortunate inconsistency in
the accuracy of the contents, however, even if one takes 1 January 1986 as
the point of publication. For example, Professor Francine Fournier, in her
article “tgalit6 et droit a l’galit”, asserts that sections 2 and 7 to 15 of
the Charter are not in force in Quebec as a result of the adoption of An Act
Respecting the Constitution Act, 1982.5 Professor Fournier was quite correct
in this assertion in January of 1985, relying at least in part on the authority
of the decision of Deschnes C.J., as he then was, in Alliance des Professeurs
de Montreal v. A.G. Quebec.6 This judgment was reversed by the Quebec
Court of Appeal on 14 June 19857 and since then Quebec Courts have
consistently held that the Quebec legislature’s attempt to render inapplicable
sections 2 and 7 to 15 of the Charter is invalid.8
On the same subject, Professor William Black in his thorough survey
entitled “A Walk Through the Charter” 9 asserts that it is “not yet clear”
whether the Act Respecting the Constitution Act, 198210 meets the require-
ments of specificity required by the enabling provisions of section 33 of the
Charter, yet he makes no reference to either the Superior Court or Court
of Appeal decisions in Alliance des Professeurs.”
4Supra, note 2 at viii.
5S.Q. 1982, c. 21.
6(1983), [1985] C.S. 1272, 5 D.L.R. (4th) 157.
7(1985), [1985] C.A. 376, 21 D.L.R. (4th) 354.
8See, most recently, Invin ToyLtdv.A.G. Quebec (1986), [1986] R.J.Q. 2441 at 2443, Jacques
J.A., and at 2457, Vallerand J.A. (dissenting on other grounds); A.G. Quebec v. Chaussure
Brown’s Inc. (1986), [1987] RJ.Q. 80 (C.A.).
91n Smith, ed., supra, note 2, 47 at 81.
‘0Supra, note 5.
“Supra, notes 6 and 7. Although leave to appeal was granted by the Supreme Court of
Canada on 30 September 1985, the case has not yet been argued and does not appear on the
Court’s docket for the January 1987 term. In accordance with s. 33(3) of the Constitution Act,
1982, supra, note 1, the effects of the Quebec law, assuming the law to have been constitutional
when it was adopted, will expire on 17 April 1987.
REVUE DE DROIT DE McGILL
[Vol. 32
As far as the presentation of the collection is concerned, the editors
have done well to provide a summary of each article in French for the
fourteen English-language articles and in English for Professor Fournier’s
article. Nevertheless, there are some annoying aspects of the presentation
and editing, especially for Quebec practitioners.
First, it is always preferable to have footnotes placed at the bottom of
the page to which the notes relate, especially, as is the case here, when many
of the footnotes contain commentary as well as a citation. Second, the editors
have omitted mention of the official reporter series in citations of several
cases. Readers in Quebec will be surprised to learn that two important
Quebec cases do not appear to have been reported in the Quebec report
series. 12 There is also an inexplicable omission of reference to the official
report series of the Supreme Court of Canada, 13 and in one case, an indi-
cation in the Table of Contents that a case is unreported when in the text
of the article it is given a citation.’ 4
Finally, in one other instance, there is an unexplained failure to have
the text of an essay changed to reflect the outcome of two Supreme Court
decisions. The decisions are treated in the text as still being reserved, while
in the footnote reference is made to the fact that the decisions of the Supreme
Court of Canada have been rendered yet there is no indication of what the
orders were with respect to these judgments under appeal from the Ontario
Court of Appeal and the Federal Court of Appeal. 15
Somewhat more rigorous editing would have been desirable in making
this book the type of lasting contribution its editors hoped it would be.
Despite its evident imperfections, the book is worth having, if only to
give those who are new to Charter issues an idea of the types of problems
they must confront. The reader, however, would do well to verify inde-
‘2Smith, ed., supra, note 2 at 409, where in the table of cases A.G. Quebec v. Quebec Asso-
ciation of Protestant School Boards is cited without reference to the official Quebec reporter
either at the Superior Court level, (1982), [1982] C.S. 673 and at the Court of Appeal, (1982),
[1983] C.A. 77. At 414, Malarctic Hygrade Gold Mines v. R. was also cited without reference
to the Quebec reporter, (1982), [1982] C.S. 1146.
3The Patriation Reference (1981), [1981] 1 S.C.R. 753 is not given its official citation at 181,
339, 415 and 417.
W1In the footnotes to Professor Gibson’s article at page 340, only the Dominion Law Report
citation of Reference re Language Rights under Section 23 of the Manitoba Act, 1870 (1984),
[1985] 1 S.C.R. 721, is given, but in the Table of Cases, at 417, the case is said to be unreported.
15See Gibson’s article, at page 333 where reference is made to the appellate judgments in Re
Ontario Human Rights Commission and Simpsons Sears (1982), 138 D.L.R. (3d) 133 (Ont.
C.A.) and Re Canadian National Railway and Canadian Human Rights Commission (1983),
147 D.L.R. (3d) 312 (Fed C.A.) while the footnote, on page 341, refers to the judgments of the
Supreme Court of Canada rendered on 17 December 1985 and subsequently reported at [1985]
2 S.C.R. 536 and [1985] 2 S.C.R. 561 respectively.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
975
pendently the assertions as to the state of the law as they are described in
the articles.
McGILL LAW JOURNAL
[Vol. 32
J.-G. Castel, Canadian Conflict of Laws, 2e 6d. Toronto, Butterworths,
1986. Pp. xxxix, 429 [$115.00 ]. Comment6 par Ethel Groffier-Atala.*
La deuxi~me 6dition de l’ouvrage du professeur Castel repr~sente un
tour de force. En effet, la premiere, publi6e en deux volumes, comptait pros
de 1 600 pages.’ L’auteur a r6ussi i mettre A jour, A comprimer, t 61aguer
et a produire un ouvrage 6minemment lisible et complet de quelques 650
pages. Le trait6 a beaucoup profit6 de ces coupures drastiques. Elles ont
61imin6 les citations et les d6veloppements un peu confus qui rendaient la
lecture de la premiere 6dition difficile. 2 En particulier, l’auteur a supprim6
les longues citations de lois et de conventions internationales en les rem-
plagant par un court r6sum6 indiquant le contenu des dispositions en cause 3
et d’autres renseignements pertinents. 4
De nombreuses r6f6rences au projet de Code civil du Qu6bec, peu utiles
t6 supprim6es. Elles
meme du point de vue comparatif, ont 6galement
figurent maintenant dans l’ouvrage de Jean-Gabriel Castel, Droit interna-
tional privg qu~b~cois5
Du point de vue de la forme, encore, nous notons avec satisfaction la
num~rotation par paragraphe et le nombre des sous-titres qui rendent l’ou-
vrage plus clair et sa consultation plus facile.
Le seul aspect du livre qui nous semble avoir un peu souffert de sa
transformation est l’6tude de l’6volution historique du droit international
priv6. Certains developpements que nous trouvions int~ressants ont dis-
paru. Cela 6tait sans doute in6vitable.
En revanche, des domaines qui ont fait l’objet d’une jurisprudence
r6cente ou d’une recrudescence d’int6r~t dans la pratique ont requ un trai-
tement plus d6taille6. C’est le cas des socits commerciales 6trang6res et
des problmes de taux de change.
Eauteur a r~ussi A gaider un 6quilibre difficile entre l’aspect theorique
d’une mati~re qui se prete aux d~veloppements philosophiques et la n~ces-
*De la Facult6 de droit, Universit6 McGill.
UJ.-G. Castel, Canadian Conflict of Laws, t. 1, 2, Toronto, Butterworths, 1975-77.
2Voir pour cette critique J. Blom, Compte-rendu (1975) 13 Ann. can. droit int. 435, (1978)
16 Ann. can. droit int. 452.
3Voir, par exemple, le paragraphe consacr6 A la Convention de La Haye du 15 novembre
1965 relative A la signification et la notification A l’tranger des actes judiciaires et extra-
judiciaires en matiare civile ou commerciale (J.G. Castel, Canadian Conflict of Laws, 2e 6d.,
Toronto, Butterworths, 1986 A la p. 206), lequel remplace avantageusement trois pages de
l’Ndition pr~c6dente (Canadian Conflict of Laws, t. 1, supra, note 1 aux pp. 239-41).
4Comme la ratification –
le plus souvent ‘absence de ratification – d’une convention pour
le Canada.
5Toronto, Butterworths, 1980.
6Canadian Conflict of Laws, 2e 6d., supra, note 3 A Ia p. 50.
7(1979), [1979] 2 R.C.S. 529, 96 D.L.R. (3d) 1.
19871
CHRONIQUE BIBLIOGRAPHIQUE
sit6 de mettre A la disposition des praticiens un outil de travail qui leur soit
r~ellement utile. Son scepticisme souriant A l’gard de certaines theories et
<< decouvertes >> brandies, parfois avec fracas, par nos voisins du sud fait
d’autant plus plaisir qu’il est fond sur une connaissance approfondie.
Une citation illustrera mieux que de longs d6veloppements cette qualit6
du livre. I1 s’agit du parall~le entre la fagon pragmatique et prudente avec
laquelle les juges de common law abordent les qualifications et les multiples
theories qui ont fleuri A leur sujet:
Under the traditional approach the court is able to concern itself with the
contents of the foreign laws among which it has to choose and of the policies
behind them before selecting the one state whose law will be applied, even
though the court does not frame its opinion in those terms. This process had
been followed long before Professors Cavers, Currie and Ehrenzweig presented
their <(new > methods. In practice, the court does not proceed independently
of the law’s contents which are to be discovered at a later stage of the inquiry.
Since in most. jurisdictions the foreign law must be alleged in the pleadings,
this gives the court an indication of the laws which will be relied upon by the
parties. 6
En revanche, nous regrettons la condamnation sans appel du renvoi alors
qu’on ne peut pas dire que les tribunaux en aient abus6 au Canada. Pourquoi
se priver d’un outil qui peut servir un jour ?
Nous regrettons 6galement que l’arrat R. c. Thomas Equipment Lte 7
que l’auteur 6tudie de fagon si fouill~e du point de vue des aspects consti-
tutionnels du droit international priv6 ainsi que du point de vue contractuel
ne l’ait pas 6galement pouss6 A nous faire part de son opinion sur les lois
d’application immediate. Elle n’aurait pas manqu6, de la part de ce grand
specialiste, de revetir un intrt tout particulier.
I1 s’agit IA de reproches extr~mement mineurs A un outil de travail de
precision. La table de jurisprudence est impressionante. I’index est complet
et bien fait. Une bibliographie aurait encore ajout6
l’utilit6 de l’oeuvre
mais nous ne savons que trop que, dans ce domaine, ce sont souvent les
imp~ratifs de l’6diteur qui l’emportent.
6Canadian Conflict of Laws, 2e Ed., supra, note 3 i la p. 50.
7(1979), [1979] 2 R.C.S. 529, 96 D.LR. (3d) 1.
