Earlier Statutes

Operation and effect, on earlier statutes

Compiled by Eric B. Appleby (2007):

Effect of Amendments

In the case of Sherwin-Williams Co. v. Walls Alive (Edmonton) Ltd. (2003), 327 A.R. 386; 296 W.A.C. 386 (C.A.), the Alberta Court of Appeal stated at para. 13: “[13] There is a presumption that, absent a clear indication to the contrary, the legislature does not intend to derogate from established law. In Goodyear Tire & Rubber Co. of Canada v. Eaton (T.) Co., [1956] S.C.R. 610, at p. 614; [1956] 4 D.L.R.(2d) 1 at pp. 5-6, Fauteux, J., stated: ‘The construction of this subsequent enactment … is subject to the rule that a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remains undisturbed. (Maxwell On Interpretation of Statutes, 9th Ed.). There [is] a presumption against the implicit alteration of the law …'”

Effect of implied repeals

In the case of Meridian Development Ltd. v. Nu-West Group Ltd. (1984), 52 A.R. 248 (C.A.), the Alberta Court of Appeal stated at para. 19: “[19] The general rule is stated in Craies on Statute Law (7th Ed.), page 366: ‘Where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier’. In Maxwell on Interpretation of Statutes (12th Ed.), page 193 the rule is stated quoting Smith, L.J., in Kutner v. Phillips, [1891] 2 Q.B. 267, at 272: ‘If … “the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together” the earlier is abrogated by the later.’ “[20] Though stated by eminent authority the rule, nevertheless, has a shabby reputation. ‘We ought not to hold a sufficient Act repealed, not expressly as it might have been, but by implication, without some strong reason’, said Lord Bramwell in G.W. Ry. Co. v. Swindon (1883), 9 App. Cas. 787, at 809. ‘Repeal by implication is never favoured’ said Anglin, J., in Canadian Westinghouse Co. v. Grant, [1927] S.C.R. 625, at 630. Many other similar statements may be found; several are quoted in the judgment of this court in Re Otto Bartel Homes Ltd. and the City of Calgary (1972), 30 D.L.R.(3d) 184 (Alta. C.A.).”

Conflict of statutes

In the case of R. v. Dow Chemical (2000), 130 O.A.C. 26 (C.A.), the Ontario Court of Appeal stated at para. 51: “[51] The paramountcy provisions in the EPA and the OHSA do not assist Dow. They are relevant when there is a conflict between statutes. There is no conflict between the EPA and the OHSA. There is an overlap, perhaps even a duplication. But overlap and duplication are different from conflict. As expressed by Dickson, J., in Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, at 190, ‘duplication is … “the ultimate in harmony” ‘. Dickson, J., continued, at p. 191: ‘In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other.'”

In the case of Urban Outdoor Trans Ad et al. v. Scarborough (City) (2001), 141 O.A.C. 37 (C.A.), the Ontario Court of Appeal stated at para. 21: “[21] ….. As was said by Anglin J. in Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488, at 499, ‘It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not “inconsistent” unless the two provisions cannot stand together.'”

Status of proceedings started under repealed statute

In the case of Westeel-Rosco Ltd. v. Board of Governors of South Saskatchewan Hospital Centre (1976), 11 N.R. 514 (S.C.C.), about Remedies – Successor statute – Transition provisions – Availability of remedies under old act – Mechanics’ Lien Act, S.S. 1973, c. 72, succeeded the Mechanics’ Lien Act, R.S.S. 1965, c. 277 – Status of action begun before passing of new Act, but tried after enactment of new Act – The new Act specifically precluded an action against the defendant – Section 61(1) of the new Act provided that a pre-existing action continued in effect in all respects – The plaintiff’s action, although unenforceable as a Mechanics’ Lien, was permitted under the old Act against the holdback – The Supreme Court of Canada held that under s. 61(1) the action continued to be valid as a claim against the holdback and to be governed by the old Act – See paragraphs 13 to 17.”

Preservation of rights acquired under repealed statute

In the case of Dallialian v. Canada Employment and Immigration Commission (1980), 33 N.R. 118 (S.C.C.), about Repeal – Preservation of rights acquired under repealed statute – Interpretation Act, s. 35(c) – In July 1975 a man became entitled to a 51 week benefit period for unemployment insurance benefits – Effective January 1, 1976 the Unemployment Insurance Act was amended and under the Act as amended the man did not qualify for benefits by reason of his age (he was over 65) – The Supreme Court of Canada held that the man’s right to benefits continued after January 1, 1976 but that the man was not entitled to continue to receive benefits after becoming disqualified under the provisions of the repealed statute.”

Retroactive versus retrospective

In the case of Johnstone v. Wright (2002), 172 B.C.A.C. 6; 282 W.A.C. 6 (C.A.), the British Columbia Court of Appeal stated at paras. 6 and 7: ” [6] In Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, Mr. Justice Dickson said this, for the majority, at p. 279 [S.C.R.]: ‘First, retrospectivity. The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively.’

“[7] In 1977 there was no widespread judicial recognition of Mr. Driedger’s careful distinction between retrospective operation and retroactive operation. So Mr. Justice Dickson distinguished between them in that passage (‘to have come into force on a date prior to its enactment’ means retroactive; and ‘be operative with respect to transactions occurring prior to its enactment’ means retrospective), but visited the same presumption equally on both, namely: that neither is to be construed as having either retrospective or retroactive operation unless such a construction is expressly or by necessary implication required by the language of the Act.”

Effect on matters in progress

In the case of Canada Mortgage and Housing Corp. v. Hagblom, Hagblom, Canada Permanent Trust Co. and Wallace Construction Specialities Ltd. (1983), 28 Sask.R. 31 (Q.B.), the court stated at para. 16: “[16] Both counsel correctly set out the principles to be applied in the interpretation and construction of statutes as follows: 1. Statutes are presumed to be intended to apply to future acts and conditions and not to be retrospective unless a clear intention that the statute be retrospective appears by express words or by necessary and distinct implication; 2. A statute that affects vested rights is presumed not to be retrospective; 3. An exception to the rule that statutes are presumed not to be retrospective is in the case of statutes dealing with mere procedure which do not affect vested rights. ‘Procedure’ is used in a restricted sense and has to do with the method of prosecuting a right of action which exists, not with the taking away of a right of action which has arisen; 4. Where the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.”

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This entry was last updated: February 14, 2017