Interpretation of Statutes

Contents:

Interpretation of Statutes

Based on the Compilation made by Eric B. Appleby (2007):

Introduction and the modern principle

The leading Canadian text on the interpretation of statutes is Sullivan and Driedger on the Construction of Statutes. Elmer Driedger in the first edition of his text, in 1974, stated what he called the modern principle as follows: “Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

The modern principle has been approved repeatedly by Canadian courts including the Supreme Court of Canada – see Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1. The elements of the modern principle are: 1. Textual meaning, the grammatical and ordinary sense of the words; 2. Legislative intent, including the scheme and object of the statute; and 3. Compliance with legal norms, including values found in the common law and in constitutional documents. When an interpreter applies the elements of the modern principle to a statute, and the question is whether the statute applies to particular facts, the interpreter may be required to apply case law and the rules of interpretation that have been evolving for hundreds of years. For example, there are many general rules, plus rules regarding extrinsic aids, intrinsic aids, presumptions, etc., and there are rules found in statutes, such as, the Interpretation Acts, Regulation Acts, Statute Revision Acts, Official Languages Acts, etc. After applying the rules of interpretation, a final question is whether the interpretation adopted is appropriate – see Sullivan and Driedger on the Construction of Statutes (4th Ed.), p. 3. This final inquiry determines: – whether the interpretation adopted is plausible given the legislative text; – whether the interpretation adopted promotes the legislative intent; and – whether the interpretation adopted complies with legal norms, e.g. is it reasonable and just.

In General

In the case of Verdun v. Toronto-Dominion Bank (1996), 203 N.R. 60; 94 O.A.C. 211 (S.C.C.), the headnote stated in part: “Interpretation – General – The Supreme Court of Canada stated that ‘the first step in a question of statutory interpretation is always an examination of the language of the statute itself’ – See paragraph 22.”

Purpose of legislation

In the case of R. v. Hill (1975), 6 N.R. 413 (S.C.C.), the headnote stated in part: “Interpretation – General principles – Purpose of legislation – Laskin, C.J.C., of the Supreme Court of Canada stated that judges cannot escape making a ‘determination of purpose, or policy, regardless of the canon that is invoked; indeed, we make it when we purport to apply one canon rather than another’ – See paragraph 57.”

Intention of legislature

In the case of Minister of National Revenue v. Schwartz (1996), 193 N.R. 241 (S.C.C.), about the determination of the intention of the legislature, the Supreme Court of Canada stated that ‘… policy concerns … should not and cannot be relied on in disregard of Parliament’s clearly expressed intention: “interpretatio cessat in claris”‘ – See paragraph 50.”

Avoidance of unreasonable results

In the case of Cormier v. Board of School Trustees, District 19 (1974), 8 N.B.R.(2d) 330 (C.A.), about the avoidance of unreasonable results, the New Brunswick Court of Appeal stated that an interpretation of a statute which produces an unreasonable result should be rejected – See paragraph 15.”

Sensible and not literal interpretation

In the case of McMonagle v. Westminister (City) (1990), 109 N.R. 209 (H.L.), about a sensible and not a literal interpretation, General principles – Sensible and not literal interpretation – The House of Lords considered the problem arising from excess wordage that has the effect of defeating the very purpose of the legislation – In certain instances the offending surplusage can be disregarded – Their Lordships stated that the ‘presumption that every word in a statute must be given some effective meaning is a strong one, but the courts have on occasion been driven to disregard particular words or phrases when, by giving effect to them, the operation of the statute would be rendered insensible, absurd or ineffective to achieve its evident purpose.’ – See paragraphs 11 to 13.”

Interpretation in accordance with reason and convenience

In the case of Canadian Acceptance Corp. v. Mowatt (1970), 2 N.B.R.(2d) 390 (Q.B.), the court stated at para. 26: “[26] Craies on Statute Law, sixth edition, at p. 13, quotes Lord Hobart in Sheffield v. Ratcliffe (1616) Hob. 334-346, with reference to rules of interpretation by the courts as stating that statutes are interpreted ‘by that liberty and authority which judges have over statute law according to reason and best convenience to mould them to the truest and best use’.”

Ordinary meaning of words

In the case of Canada Mortgage and Housing Corp. v. Hagblom, Hagblom, Canada Permanent Trust Co. and Wallace Construction Specialities Ltd. (1998), 237 N.R. 373; 122 B.C.A.C. 1; 200 W.A.C. 1 (S.C.C.), about one of the cases that consider the ordinary meaning of words, the Supreme Court of Canada stated that ‘statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur; … It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids.’ – See paragraph 14.”

Conflict with other statutes

In the case of Diamond Estate v. Robbins (2006), 253 Nfld. & P.E.I.R. 16; 759 A.P.R. 16 (Nfld. C.A.), about Construction where meaning is not plain – General principles – Avoidance of conflict with other statutes – The Newfoundland and Labrador Court of Appeal stated that ‘in statutory interpretation there is a presumptive rule of coherence, i.e., that the legislature did not intend to enact inconsistent provisions in statutes dealing with the same subject matter. “As a result, where possible, potentially conflicting legislation is interpreted so that inconsistency or conflict is avoided”. … It follows that where provisions in separate statutes can apply without conflict both will apply. … Where there is conflict, such that the provisions in separate statutes cannot both apply, other interpretative rules assist in the resolution thereof. One of these is reflected in the maxim generalia specialibus non derogant (a general provision does not derogate from a special one), also known as the rule of implied exception’ – See paragraphs 49 to 51.”

Ambiguity defined/h3> In the case of Bell ExpressVu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1 (S.C.C.), as one of the cases that consider what constitutes an ambiguity, and where Construction where meaning is not plain, the Supreme Court of Canada stated that absent ambiguity, the words of a statute were to be interpreted in their ordinary and grammatical sense – Other principles of statutory interpretation, such as strict construction of penal statutes and the ‘Charter values’ presumption, applied only where there was ambiguity – Ambiguity occurred only where the words of a provision were ‘reasonably capable of more than one meaning’ – By necessity, the ‘entire context’ of a provision must be considered to determine whether the provision was reasonably capable of multiple interpretations – The court restated that ‘it is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretative aids, including “other principles of interpretation”‘ – The court stated that ‘ambiguity cannot reside in the mere fact that several courts — or, for that matter, several doctrinal writers — have come to differing conclusions on the interpretation of a given provision’ – See paragraphs 28 to 30.”

Interpretation, aids, legislative history

In the case of Canada 3000 Inc. (Bankrupt), Re (2004), 183 O.A.C. 201 (C.A.), about Aids or methods to determine meaning and Legislative history – Parties filed an affidavit containing evidence concerning the legislative history of two statutes that were in issue – The Ontario Court of Appeal acknowledged that legislative history was admissible as an aid to statutory interpretation and opined that ‘the legislative history of the enactments in issue and of the challenged statutory provisions was admissible without the necessity of sworn affidavit evidence.’ – See paragraph 212.”

Interpretation, aids, similar statutes

In the case of British Columbia Development Corp. v. Ombudsman (1984), 55 N.R. 298 (S.C.C.), about Extrinsic aids – Other statutes – Similar statutes in other jurisdictions – The Supreme Court of Canada in construing the B.C. Ombudsman Act considered the Ombudsman legislation in other provinces – See paragraph 70.” Search aid – MLB Key No. – Statutes Topic 1626 is assigned to cases that consider statutes in other jurisdictions as an aid. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.

Interpretation, aids, books and comments

In the case of R. v. Lyons (1984), 56 N.R. 6 (S.C.C.), the headnote stated in part: “Interpretation – Extrinsic aids – Books and comments – General – The Supreme Court of Canada, considered various academic authorities and commentaries on the electronic invasion of privacy in construing Part IV.1 of the Criminal Code, a mini-code on invasion of privacy – The material was considered with reference only to the aims of the legislating body and the evils with which it was then contending in passing Part IV.1 – See paragraphs 56 to 63.”

Interpretation, aids, bilingual statutes

In the case of Estabrooks Pontiac Buick Ltd., Re (1982), 44 N.B.R.(2d) 201; 116 A.P.R. 201 (C.A.), the headnote stated in part: “Interpretation – Intrinsic aids – Bilingual statutes – Reference to either language – The New Brunswick Court of Appeal examined both the English and French versions of a bilingual statute to determine the intention of the legislature, since both were equally authoritative, by virtue of the Official Languages of New Brunswick Act, R.S.N.B., 1973, c. O- 1 – See paragraph 19.”

Interpretation, aids, punctuation

In the case of Peters Transport Ltd. v. Motor Transport Board (Man.) (1981), 17 Man.R.(2d) 368 (C.A.), about Intrinsic aids and Punctuation, the Manitoba Court of Appeal affirmed the approach to interpretation whereby regard must be given to punctuation but punctuation is to be subservient to the words and apparent intention of the legislation – See paragraphs 17 to 20.”

Interpretation, aids, presumptions

In case of an ambiguity, the courts may invoke one or more of the many presumptions. In the sections that follow you will find only a sample of the presumptions that are available to an interpreter.

In the case of Beaulieu v. New Brunswick (2003), 266 N.B.R.(2d) 338; 698 A.P.R. 338 (C.A.), about Presumptions and rules in aid, the New Brunswick Court of Appeal stated that ‘that the presumptive canons of statutory interpretation are residual in scope. That is to say, they do not displace the court’s obligation to apply Elmer Driedger’s formulation of the modern and overarching principle of statutory interpretation … If the meaning of a statutory provision is ambiguous and its meaning cannot be ascertained through the application of interpretative principles, then the presumptive or residual canons of construction come into play. As well, if the court is faced with choosing between two sensible interpretations, the one favouring the party in whose favour the presumption lies is to be preferred. However, if there is no ambiguity or if one of the two possible interpretations is not sensible, the presumptive canons have no application.’ – See paragraphs 12 to 14.”

Interpretation, aids, presumptions, against alteration of the law

In the case of Hongkong Bank of Canada v. Wheeler Holdings Ltd. (1990), 111 A.R. 42 (C.A.), as one of the cases that consider the presumption against alteration of the law, the Alberta Court of Appeal applied the presumption that the legislature does not intend to make any substantial alteration of law beyond what is explicitly declared (see paragraphs 21 and 22).”

Interpretation, aids, presumptions, against abridgment of common law rights

In the case of R. v. Jones (1983), 43 A.R. 251 (C.A.), about Presumptions and rules in aid against abridgment of common law rights, the Alberta Court of Appeal held that the common law right of the pedestrian to use the highways could only be restricted by express statutory language, which must be strictly construed – See paragraph 8.”


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