… In resolving these interpretive questions, courts will use the Modern Approach, as applied by the Supreme Court of Canada (SCC) in cases like Rizzo, Merk, and Mowat. While courts have frequently cited Elmer Driedger’s influential description of the Modern Approach, thecurrent application of it is better captured by Ruth Sullivan’s reformulation, which considers whether an interpretation is plausible in its compliance with the text, whether it is effective in achieving the legislative purpose, and whether it leads to a just and reasonable outcome. Courts in British Columbia will also consider s. 8 of the BCIA, which requires that every enactment shall be construed as being remedial, and should be given a large and liberal interpretation.

ORDINARY MEANING(“grammatical and ordinary sense…”)

  • Will depend on the co-text! (Which co-text for broad? For Narrow?)
  • Illustrated in the food v. supplement analysis –Shaklee(1995)
  • NOT normally applied to legal terms of art – Mowat(2011)

DEFINITIONS

  • Section of statute > Statute > Interpretation Act > Dictionaries / Other jurisdictions
  • Dictionary definitions can be instructive if ambiguity is not resolved by stipulative definitions
  • “Smuggling” – Riddell (1973) Que. C.A.
  • “Capable” – Hasselwander (1993)
  • Even stipulative definitions rebuttable by contrary intention
  • Other jurisdictions can be instructive – Merk (2005)

PRESUMPTIONSOF DRAFTING

  • Uniformity of expression
  • Word has the same meaning throughout statute – Schwartz (1996)
  • Does not apply if part of statute has part-specific definition
  • Rebuttable by contrary intention – Potash Corporation (2008)
  • Presumption against tautology
  • Each word is presumed to play a deliberate role – Mowat(2011)
  • Rebuttals: - Ex abundanti cautio: abundance of caution

- Ensuring parallels to French in bilingual jurisdictions

CANONS OF CONTRUCTION (a.k.a. Maxims of Interpretation)

  • Noscitur a sociis (The Principle of Associated Meaning)
  • Narrows meaning: Horn among flute, trumpet, clarinet means only musical instrument
  • “Treaty or agreement” –> agreement must be narrowed, otherwise, inclusion of treaty would violate Presumption Against Tautology – God’s Lake First Nation (2006)
  • Ejusdem generis (Limited Class)
  • Narrows meaning: Railway station, bus depot, or public place –> public place limited
  • Identify “basket clause,” define by common denominator
  • Rebuttals: - Enumerated items exhaust class, so clause must mean something else

- Legislator intended broad meaning

  • “Other matter of thing” narrowed by enumerated items – Rascal Trucking (2001)
  • Expressio unis est exclusio alteris (Limited Class)
  • “Family and your aunt” –> not your uncle (uncle is the comparable item)
  • “The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature” –Ruth Sullivan
  • Rebuttals: - Enumerated item included because of Abundance of Caution

- “can be a dangerous master,” Dorval (2006), SKCA

  • Presence of express limitation in one provision implies that the absence of that limitation in another provision was intentional - Canadian National Railway (2014)

SCHEME OF THE ACT

  • Favour the interpretation that is consistent with how the act achieves its purpose
  • Eg: “benefits-conferring” legislation in Rizzo Shoes (1998)

COHERENCE

  • Internal – Strong presumption of internal coherence
  • Sunny Brae (1952) – “no repugnancy”
  • Horizontal – Legislature presumed to speak in one voice – Bell ExpressVu (2002), Iacobucci
  • Columbia River (1996) BC Enviro Appeal Board – Giving standing would be incoherent:
  • If given, would produce absurd results –> internal repugnancy
  • Other BC statutes broaden standing explicitly, so presumed not to be broadened
  • Re Broadcasting Regulatory Policy (2012) – Allowing broad interpretation of enabling clause would allow conflict with Copyright Act
  • In case of conflict, some statutes override (human rights codes). If not:
  • Try to find an interpretation that reconciles
  • Presumptions: Recent > older | Specific > General | Specificity > Recency
  • Levis (2007), Bastarache – Conflict between two acts, not possible to reconcile, so interpret in favour of more recent and specific (and with legislative intent -> Hansard)
  • In some cases, can consider other legislatures (Mowat (2011) on “costs” as term of art)
  • Vertical – Constitution > Statute | Federal Paramountcy | Statute > Subordinate Instrument
  • But first, try to find interpretation that reconciles
  • Human rights codes override other statute even when not explicit (Heerspink (1982))

COMPONENTS OF A STATUTE

  • Title
  • Part of statute, can be used “in explaining its meaning and object” per BCIA s. 9
  • “Concession” –> commercial – Committee for the Commonwealth of Canada (1991)
  • Purpose Provisions
  • “most direct and authoritative evidence” of legislative purpose – Appulonappa (2015)
  • In cases of conflict, substantial provision overrides (but try to interpret harmoniously)
  • Preamble
  • May be used for interpretation – BCIA s. 9
  • “Serious national concern” indicates gravity – Re Anti-inflation Act (1976)
  • Heading
  • BCIAsilent on headings, may have more scope than headnotes and margin notes
  • “disturbance” narrowed by heading “disorderly conduct” – Lohnes (1992)
  • Headnote & Margin Notes
  • Explicitly not part of statute, editorial use only – BCIA s. 11(1)
  • “some limited use in gleaning the intention” – MacIntosh (1995), McLachlin (dissent)
  • Schedules
  • Part of statute, but only have legal effect if incorporated by express or implied reference
  • Forms used to record board meetings were in the schedule, but only for convenience, did not have force of law – Houde v. Quebec Catholic School Commission (1978)
  • Punctuation
  • Can be useful, but not definitive
  • Provision would need to be more explicit to overturn CL tradition on search and seizure, so first blush interpretation rejected – R. v. Jaagusta (1974), BC Prov Court

PRESUMPTIONS OF LEGISLATIVE INTENT

  • Ensure that when political understanding is violated, it is explicit (Eastbrooks Pontiac (1982))
  • Crown Immunity – Statutes presumed not to apply to crown
  • Rebuttable by statute or necessary implication (eg. “binding on her majesty” clause)
  • Enshrined in most interpretation acts, but reversed in BCIA s. 14 (except for land use)
  • Gov’t/Crown/Her Majesty usually interchangeable for this purpose
  • Against Extraterritoriality – Canada only (extraterritoriality constitutionally barred for provs)
  • Extraterritorial law often used to implement int’l agreements (CEPA -> dumping at sea)
  • If some portion of activities happen outside of Canada, can still have extraterritorial effect if there is a “real and substantial link” (Eg.: child custody in Hammerbeck (1993))
  • Specific types of law
  • Aboriginal – Against interference with Aboriginal & treaty rights
  • Benefits-conferring – broad & purposive – Rizzo (1998)
  • Penal Provisions – Strict construction, but only as a last resort after purposive analysis
  • Uzi “capable” of firing in quick succession – Hasselwander (1993)
  • Human Rights – Broad & purposive, quasi-constitutional
  • Jubran (2005), BCCA – Could hetero student bring action for anti-gay bullying? Yes, must give broad interpretation in keeping with purpose of HRC
  • Tax – Formerly narrow, but recently subject to modern approach – Placer Dome (2006)
  • Municipal – Was narrow, now modern approach in keeping with expanded role of cities
  • Municipal gov’ts now general lawmaking bodies – United Taxi Drivers (2004)

HISTORY, LEGISLATIVE EVOLUTION & HANSARD

  • Hansard evidence can be used, but “limited weight” – Rizzo Shoes (1998)
  • Hansard & reports tabled in house used to find criminal public purpose – Firearms Ref (2000)
  • Social and historical context of industry used to interpret pharma regulations – Katz (2013)
  • History of amendments useful in discerning intent
  • Re Simon Fraser (1968), BCCA – Are leased Uni lands tax-exempt? Language that would have taxed them was removed, so legislature presumed to have intended to extend exemption
  • Careful: BCIA s. 37(2) –> Cannot infer from amendment that a change was intended
  • Some amendments do not intend to change law: declaratory, housekeeping
  • Failed amendments can be considered – Mowat(2011)

INTERNATIONAL LAW

  • Legislatures presumed to intend to comply with int’l obligations – Daniels v White (1968)
  • When interpreting implementing legislation, can use defs in treaties – GreCon Dimter (2005)
  • Vienna Convention approach to SI is similar to the Modern Approach – WorldBank Group (2016)
  • Interpretations from courts of other state parties can be useful – Thibodeau (2014)
  • Especially true if uniformity is the purpose of the convention
  • Un-implemented treaties have no force, but can be limited component of a modern approach
  • Treaty on Rights of the Child – Baker (1999), L’H.-D., Iacobucci dissenting

… When interpreting subordinate legislation, the SCC has endorsed the Modern Approach (Squibb), supplemented by a few additional considerations. First, subordinate legislation is presumed to be valid (Katz). Secondly, a purposive interpretation must take place in the context of the parent statute (FAPG). Finally, s. 41 of the BCIArequires a broad interpretation of enabling provisions, within the purpose of the statute.

SUBORDINATE LEGISLATION

  • Enacted by delegated authority (by cabinets, ministers, municipalities, tribunals, etc.)
  • When it has legal effect, that effect is the same as statute law
  • To have force of law, must be authorized by an Enabling Clause in statute
  • BCIA s. 41 – broadens enabling clauses
  • S. 41(1)(a) – “necessary and advisable,” and not inconsistent
  • S. 41(1)(b) – “administrative and procedural” even if not provided for
  • Some complex statutes have multiple enabling clauses: check specific part first
  • Guidelines, etc. can be binding with clear legislative intent Oldman River (1992)
  • Types of Subordinate Legislation:
  • Regulation – Has two meanings:
  • Narrow: A type of legally binding subordinate legislation; or
  • Broad: Most types of subordinate instrument – BCIA s. 1
  • Order – More limited than regs, often for specific purposes -> appointments, etc.
  • Decree – Used in Quebec to impose labour standards
  • Rule – Procedures for courts, tribunals, etc.
  • Tariffs – Impose fees, etc.
  • By-laws – Subordinate legislation by municipalities, companies, societies, etc.
  • Letters Patent – Create companies and authorize certain activities
  • Directives – Not legally binding/enforceable, not usually authorized by legislation

LIMITS ON SUBORDINATE LEGISLATION

  • Statutory Limits: Subordinate legislation must be intra vires the enabling statute
  • Use Modern Approach (Squibb (2005) – rejected plain meaning in favour of purposive approach) but with two additional considerations:
  • Presumption of Validity: must try to find an intra vires interpretation – Katz (2013)
  • Must interpret in context of parent statute (purposive approach, etc.)
  • Federated Anti-Poverty Groups (1996) BCSC – broadly-worded enabling clause read down so that regs could only limit eligibility on grounds specified in the Act
  • Re Broadcasting Regulatory Policy (2012) – Enabling clause interpreted in context -> economic regulation would go beyond Broadcast Act and also conflict with Copyright Act
  • Constitutionality: Can be challenges on 3 types of grounds:
  • Division of Powers
  • Charter Limits
  • Implied Constitutional Limits (eg. Parliamentary Supremacy)
  • Henry VIII Clauses could be challenged as incompatible with Parliamentary Supremacy
  • Re Gray (1918) – Henry VIII clause upheld in wartime (agricultural exemption from draft)
  • Waddell (1983), BCSC – Clause upheld in peacetime (pipeline financing)
  • Ontario School Boards (1997) ONSC – Allowed override of any statute -> constitutionally suspect but no need to adjudicate (hinted at willingness to review for peacetime)

LIFE CYCLE OF STATUTE

  • Operation – When is a law in force? (Comes into force on commencement)
  • Typically done by reg./proclamation, but traditionally upon enactment (royal assent)
  • BCIA s. 3(2) – Commence on enactment unless specified
  • BCIA s. 4 – In force at beginning of enactment day, loses force end of repeal day
  • Application – During what period are activities covered by the provision(s)?
  • Amendment – BCIA s. 37(2) – Amendment not presumed to have changed the law
  • Expiration – No expiration by disuse or obsolescence – Mercure (1988)
  • Exception: In rare cases, courts may imply repeal on enactment of a newer statute
  • Repeal – Normal means by which law loses force
  • BCIA s. 35(1)(a) – Prior law not to be revived on repeal of statute
  • BCIA s. 35(1)(b) – Acts lawful under a statute do not become unlawful on repeal
  • BCIA s. 35(1)(c) – Repeal does not affect rights/obligations “accrued, accruing, incurred”
  • BCIA ss. 35(1)(d) 36(1)(d) – On repeal and replacement, benefit of lesser punishment
  • BCIA s. 35(1)(e) – Investigations/proceedings on offenses/rights can survive repeal

TEMPORAL APPLICATION OF STATUTES

  • Most laws are prospective
  • Retroactive and Retrospective laws are subject to certain limits:
  • Transitional provisions make temporal scope explicit in the statute
  • Interpretation Acts have provisions to limit retroactivity
  • See Repeal above
  • Common Law Presumptions
  • Against retroactivity (strong)
  • Against retrospectivity
  • Exception for changes that are strictly procedural
  • Against interference with vested rights
  • (In the exam, focus instead of “accrued and accruing”)
  • Charter Rights prevent certain types of retroactive application
  • S. 11(g)– No retroactivity for criminal offenses
  • S. 11(i)– If punishment changes between commission and sentencing, accused gets benefit of the lesser punishment
  • MacKenzie (1992), BCCA – Pension scheme changed, widow tried to benefit from vague retroactivity provision, retrospective application would oppose purpose/scheme, so presumption prevails
  • Clarke (2014) – Truth in Sentencing, presumption against retrospectivity applies, but rebutted by explicit transition provision
  • Dineley (2012) – DWI charge, between charge and trial Parl eliminated Carter Defense, change is substantive because of inability to collect evidence, presumption applies, acquitted
  • Gustavson (1964) – No vested right to continuance of previous law
  • College of Surgeons (1992), Sask CA – Scott’s application for readmission was underway, cheque was in the mail, so right was accruing
  • Skookum Jim (2015), CIRB – Union application completed before legislative changes took effect, not purely procedural, so presumption applies, application proceeds on previous rules