Statute

Operation and effect of statutes

Compiled by Eric B. Appleby (2007):

Contracting out of a statute, when prohibited

In the case of Mandos v. Ontario New Home Warranty Program (1995), 86 O.A.C. 382 (C.A.), the Ontario Court of Appeal stated: “The Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O-31, is remedial legislation and should be given a fair and liberal interpretation. Section 13(6) of the Act is a difficult subsection to construe. However, we believe that the interpretation given to it by counsel for the respondents is a proper one, i.e., that the warranties contained in s. 13(1) continue in force, irrespective of any agreement by the parties to the contrary. This interpretation, in our opinion, achieves a fair and just result. The Corporation is desirous that builders and owners should settle their differences, and s. 13(4) of the Regulations contemplates that if such a settlement is made, it will not affect the Corporation’s rights of subrogation. When a mutual release is executed between an owner and a builder, it is quite possible, as in the present case, that there may be defects which could not be discovered by reasonable inspection. If it is the intention of the legislature that a release should be a bar to any action by an owner for breach of the warranties in s. 13(1), then, in our opinion, the legislation should clearly so provide and owners should be warned of the dangers of entering into a release.”

In the case of SCC Construction Ltd. et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada et al. (1987), 64 Nfld. & P.E.I.R. 195; 197 A.P.R. 195 (Nfld. C.A.), the Newfoundland Court of Appeal stated at paras. 35 to 37: “[35] There is no doubt that a contract which is expressly or implicitly prohibited by statute is illegal and unenforceable (Cope v. Rowlands (1836), M & W 149; Anderson Ltd. v. Daniel, [1924] 1 K.B. 138; St. John Shipping Corporation v. Joseph Rank Ltd., [1957] 1 Q.B. 267). The question arises whether parties to a contract may by mutual agreement avoid the incidences of a statute and make effective that which the legislation prohibits. ”

[36] As a general rule one may agree to waive benefits conferred upon him by an Act of a Parliament or Legislature unless it can be demonstrated that it would be contrary to public policy to allow such agreement. The case of Griffiths v. The Earl of Dudley (1891-1892), 9 Q.B.D. 357, is illustrative of this principle. There the Employers Liability Act had been enacted to make an employer liable for death or injury to an employee occasioned by negligence of a fellow employee. The deceased whose death had been caused by neglect of an inspector in the same employer’s colliery, had entered a contract exempting his employer from vicarious liability notwithstanding the benefit otherwise conferred upon him by the Act. The issue before the court was whether the workman could contract himself out of the benefits of that Act and, in dealing with this issue, the court addressed the argument that the contract was void as being against public policy. In declining to conclude the contract was contrary to public policy Field, J., stated at p. 363: ‘It is at least doubtful whether, where a contract is said to be void as against public policy, some public policy which affects all society is not meant. Here the interest of the employed only would be affected.’ ”

[37] Cheshire & Fifoot The Law of Contract (8th Edition), deals with the inability of parties to a contract to avoid incidences of a statute that are enacted in furtherance of public policy. At p. 312 the authors state: ‘If a contract in fact made by the parties is expressly forbidden by the statute, its illegality is undoubted. But where it is alleged that the prohibition is implied, the court is presented with a problem the solution of which depends upon the construction of the statute. What must be ascertained is whether the object of the legislature is to forbid the contract … if even one of the objects is the protection of the public or the furtherance of some other aspect of public policy, a contract that fails to comply with the statute is implicitly prohibited. But no one test is decisive, for in every case the purpose of the legislature must be considered in the light of all the relevant facts and circumstances.'” And in the same case, SCC Construction Ltd. et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada et al., the headnote stated in part: “Section 95(1)(b) of the Labour Relations Act prohibited strikes during the term of a collective agreement – The Newfoundland Court of Appeal held that unions and employers could not by collective agreement contract out of s. 95(1)(b) and make illegal strikes legal – See paragraphs 33 to 42.”

Validity of statutes, judicial review

Overview: A vague statute may be invalid if it violates principles of the Canadian Charter of Rights and Freedoms 1982. Before 1982 the courts did not have the authority to pass judgment on the validity of statutes.

In the case of R. v. Wonderland Gifts Ltd. (1996), 140 Nfld. & P.E.I.R. 219; 438 A.P.R. 219 (Nfld. C.A.), the Newfoundland Court of Appeal stated at para. 32: “[32] From the foregoing discussion a consensus can be readily discerned as to the absence of judicial power at common law to declare legislation inoperative on the grounds of vagueness, and agreement that courts are rather constrained to place meaning upon ambiguous statutory provisions however difficult that may be. The rationale of this approach can be traced to the Doctrine of the Separation of Powers whose application, although allowing for a role for judicial law-making co- incidental with its function of statutory interpretation and application, precludes the judiciary from setting aside legislative enactments. Indeed, the usurpation of such a role by courts may be viewed as the antithesis of democracy.”

In the case of R. v. Nova Scotia Pharmaceutical Society et al. (No. 2) (1992), 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91 (S.C.C.), the Supreme Court of Canada stated at para. 71: “The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” Search aid – MLB Key No. – Statutes Topic 4552 is assigned to cases that consider whether a statute is unconstitutionally vague. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.

Enactment procedure, judicial review

The courts are not entitled to review the enactment procedure of a statute. In the case of Mount Pearl (City) et al. v. Newfoundland (Minister of Provincial and Municipal Affairs) (1991), 99 Nfld. & P.E.I.R. 271; 315 A.P.R. 271 (Nfld. T.D.), about Validity – Enactment procedure – The province passed legislation that would amalgamate Mount Pearl with other municipalities – Mount Pearl submitted that the Bill was invalid because the resolution which proceeded it was invalid – The resolution was invalid because the Minister failed to follow the proper procedure when appointing the commissioners who did the feasibility study, because the Minister failed to follow the commissioners’ recommendations and because the resolution did not follow the format of the original notices – The Newfoundland Supreme Court, Trial Division, stated that provided the legislature stayed within its jurisdiction, it was not open to the courts to go behind the legislation and inquire into the procedure which led up to it – See paragraphs 17 to 32.”

What constitutes Legislation by reference

In the case of R. v. St. Lawrence Cement Inc. (2002), 162 O.A.C. 363 (C.A.), the Ontario Court of Appeal stated at paras. 18 to 20: “[18] A helpful discussion of the legislative device of incorporation by reference is to be found in F. Bennion, Statutory Interpretation, 3rd Ed. (London: Butterworths, 1997), at 585-591. It enables the legislative draftsman to include provisions of earlier statutes or other documents into statutes or regulations without actually reproducing the language of the statute or document. As Bennion points out, incorporation by reference is a common device of legislators in accordance with the maxim ‘verba relata hoc maxime operantur per referentiam rit it eis inesse videntu’ (words to which reference is made in an instrument have the same operation as if they were inserted in the instrument referring to them). The effect of incorporation by reference is that the material incorporated is considered to be part of the text of the legislation.

“[19] In a case not unlike this appeal, the British Columbia Court of Appeal held that incorporation by reference was complete without publication of the text of the incorporated documents in the Canada Gazette: R. v. Collins (R.) et al. (2000), 140 B.C.A.C. 311; 229 W.A.C. 311; 148 C.C.C.(3d) 308 (C.A.). The court held that it was unnecessary to publish a regulatory standard incorporated by reference together with the regulation before a prosecution based on contravention of the standard could be pursued. It further held at p. 318 [C.C.C.] that incorporation by reference does not require that the text of the incorporated document be reproduced in the incorporating statute or regulation. See, also, Dennison Mines Ltd. v. Ontario Securities Commission (1981), 122 D.L.R.(3d) 98 (Ont. Div. Ct.).

“[20] I would adopt and apply the following statement of the law of Rowles, J.A., in Collins at p. 316 [C.C.C.]: ‘When material is incorporated by reference into a statute or regulation it becomes an integral part of the incorporating instrument as if reproduced therein. In that regard, see Mainwaring v. Mainwaring, [1942] 2 D.L.R. 377 (B.C.C.A.), in which McDonald, C.J.B.C., referred to the effect of referential legislation in relation to the incorporating statute, at p. 380: “… Legislation by reference … has been consistently construed not to be ambulatory in its effect, but to incorporate the extrinsic law as at the date of the Act that is being construed, and to be unaffected by subsequent change of the law incorporated: [citations omitted.] The effect of such legislation is as though the extrinsic law referred to was written right into the Act .”‘”

Enabling statutes

The term enabling statute is applied to a statute that confers new powers. An example is a statute that confers the power to expropriate private property.

In the case of R. v. Myers (D.J.) (1991), 91 Nfld. & P.E.I.R. 37; 286 A.P.R. 37 (Nfld. C.A.), the headnote stated: “What constitutes an enabling act – The Criminal Code, R.S.C. 1985, c. C-46, s. 577(a), provided that where there has been no preliminary inquiry, an indictment shall not be preferred without the written consent of the Attorney General – No other Code section provided that an indictment could be preferred in the absence of a preliminary inquiry – The Newfoundland Supreme Court, Trial Division, held that s. 577 was enabling – See paragraphs 17 to 37.”

Enforcement of enabling statutes

In the case of Mountstephen Construction Ltd., Re (1977), 6 A.R. 607 (T.D.), about Enforcement of enabling acts – Enforcement of statutory rights – The Alberta Supreme Court, Trial Division, stated that common law remedies are available to enforce statutory rights and liabilities in the absence of specific statutory remedies – See paragraphs 6 and 7.”

Delegated legislation

The law of the land includes, in addition to the common law and statute law, a great deal of subordinate or delegated legislation. Subordinate or delegated legislation (there is an entry about subordinate or delegated legislation here) comprises orders, rules, regulations, by-laws, etc., made under statutory powers. Such delegation has become a normal feature of law- making in Canada.

Definition of Statute

Statute meaning or descrpition: law passed by Parliament or a provincial legislature; also called an “act”; often specifically provides for the authority to make regulations or to delegate this power; distinguished from subordinate legislation; see also statute law (Source of this concept of Statute: emp.ca/books/330-7 and emp.ca/books/479-3)

Concept of Statute

A definition of Statute may be the following: A formal written enactment of a legislative body.

Statute

This section offers an overview of Statute under the Canadian law.

Resources

See Also

1. Act