EN:

The problem of non payment of maintenance orders has been widely recognized in many jurisdictions. It has attracted a considerable body of applied research and programm development. After reviewing, with statistical data, the ineffectiviness of Court enforcement procedures, the author analyzes the reasons for non enforcement and the remedies which have been adopted in the Province of Quebec. The author distinguishes between what she calls preventive remedies, collecting and penalties. Lastly, she concludes that the problem goes far beyond the law and that a re-thinking of the issues involved, particularly at the economic level, remains a necessity.

EN:

Enforcement of court judgments against government and public authorities at all levels has never been studied. It raises two main concerns. First, what is the legal regime for compulsory execution of judgments ? A distinction must be made between situations where the legality of an act or omission is challenged with success by a citizen and situations where the Administration is held to pay a sum of money in civil matters (tort, contract, property).

Second, when government officials and administrators agree to comply with court judgments, is their willingness to comply genuinely effective ? Are there means of nullifying the real impact of judgments ?

EN:

To measure how effective the decisions of criminal courts really are, the author identifies the various factors interfering with the application of judicial decisions. Are the decisions of foreign jurisdictions binding before the Canadian authorities for extradition purposes ? Moreover, within Canada, what factors might affect the execution of a jail sentence, a fine, or even the suspension of a driving permit ? It will be seen that some of the factors identified interfere only marginally with the decisions while others contribute significantly in modifying the decisions as pronounced by the criminal courts.

The conclusion of this paper is that the effectiveness of criminal court decisions is quite relative. It follows that the imposition of a penalty upon those who fail to obey a civil judgment should not be considered as a means of ensuring the effectiveness of that judgment.

EN:

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement.

Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

EN:

After describing the evolution of the Quebec private international law rules concerning the execution of foreign judgments (Section I), this paper outlines the current procedures of recognition (Section II).

Section III explains the statutory provisions designed to facilitate recognition and execution of foreign judgments or to prevent it. In particular, the paper focusses on recent efforts in Quebec towards international cooperation.

EN:

Professional secrecy is expressly defined in section 9 of the Québec Charter of Human Rights and Freedoms. Hence, the substance of this section acquires major importance and an analysis of it must precede any other procedure. Professional secrecy as described therein is a right vested in the person and as such, is an obligation that all professionals governed by the law must respect. This right originates in the professional relationship and only concerns the confidential content of information disclosed at that time. Lastly, the professional's duty to discretion may be suspended by a specific statutory provision without there being an express need to derogate therefrom in the Charter of Rights.

EN:

The question of the law applicable to the protection of incapable foreign domiciliaries has generated much controversy in private international law. Arguments have favoured application either of the law of the foreign domicile or of the local law, yet neither solution has been consistently adopted. The author is of the view that such controversy amongst proponents of competing yet justifiable solutions is immanent in law and that both solutions must be seen as representing the private international law of incapable persons. He therefore argues in favour of a disjunctive reference of such questions to one or the other of the two laws in conflict, depending on which best serves the objective of protection of the incapable. Such a solution is incompatible with the unilateral application of the law of the forum, and notions of governmental interest or laws of « immediate application » are therefore inapplicable.

EN:

The general theory of contracts, as uniformly expressed by leading scholars in Quebec civil law, suffers from dogmatism. It rests on an individualistic and atomized notion of contract which is largely superceeded by the most significant forms of contemporary contractual practice. By focusing on the traditional rules of the Quebec Civil Code at the expense of more recent statutory law, the systematization it offers no longer corresponds to the state of the law of contracts. Refining the methods of the legal analysis, constructing typologies of contracts more sensitive to contractual practices, renewing dialogue with other disciplines such as history, economics and sociology would contribute, the author suggests, to stem the tide in authoritative writings away from its present dogmatism.

EN:

Considerations on the nature, role and influence of authoritative writings or doctrine in Québec labour law.

Authoritative writings or « doctrine » may be defined as follows : « the aggregate of writings that constitute a source of law inasmuch as they may affect law through the actions of the courts or the legislator ». The following hypothesis may then be formulated : although everything points towards an increased development of such writings or doctrine in labour law, several factors have retarded this development. The needs for such research is illustrated via various examples. These needs can be felt in legislative circles, for instance, concerning questions raised over the present consultative committee on labour created by the Québec government for revising the Labour Code. The same applies to the courts in, for example, recent decisions on basic principles applying to collective labour relationships. The article also summarily describes various obstacles hindering the development of authoritative writings which may be divided into objective ones (i.e., recent law, uneven development viz-à-viz North American laws, widespread jurisdictions, lack of researchers, constraints on the university milieu) and subjective ones (i.e., lack of openness in the labour relations milieu, an idealized conception of what doctrine is all about and the knack researchers have for taking on activities linked to practice). Lastly, several desirable orientations for research are mapped out: the penetration of law in labour relations (« juridicisation ») and the invasion of adjudication (« judiciarisation »), the empirical effects of labour law and an integrated and comparative history of Québec labour laws.

EN:

In view of the increasingly divergent tendencies in legal scholarship, many authors are reconsidering whether « la doctrine » can really serve as a formal source of law. Since university professors are primarly responsible for producing this scholarly commentary, at least in the field of administrative law, it is worth asking two related questions : first, does university scholarship in law have a specific purpose or logic ? and second, does the nature of administrative law require that this scholarship have a particular direction ?

In this essay, both questions are answered in the affirmative : University legal scholarship has a synthetic function not shared by ordinary legal writing, and given the case law foundations of the administrative law, this scholarship must also reveal the underlying conceptual structure of the subject.