This party wants X, the other wants Y.
Though the SCC formerly took the plain meaning approach to be the “golden rule” of statutory interpretation as evidenced by Lamer J. in McIntosh, the court has now turned to the modern approach as their primary interpretive guide: “…The words of an Actare to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Elmer Driedger, Construction of Statutes, 1983
Grammatical and Ordinary Sense
•At first blush, the plain meaning of the statute is _____
•Definitions in statute
•BCIA Definition
•Ordinary, reasonable person’s (engineer’s? lawyer’s? tax person’s?) understanding (may or may not be useful) — Shaklee
•Legal Terms of Art — Mowat
•Dictionary Definitions — Riddell, Hasselwander
Scheme of the Act
•The word or phrase must be interpreted consistently with the surrounding provisions to ensure internal coherence. Various tools can be used to determine the scheme of the Act, but all can be rebutted by stronger reasoning.
•Manipulate to benefit both parties:
•Exceptions
•Presumptions
•Uniformity of Expression
•Presumption Against Tautology — Mowat
•Maxims of Interpretation
•associated meaning — McDiarmid
•ejustem generis — Rascal Trucking
•expressio unius/implied exclusion — Children’s Aid Society of Hamilton
•Internal Coherence — limitations on presumptions, if any, can go here
•Horizontal Coherence (Bell ExpressVu)
Object of the Act
•The provision requires interpretation consistent with the object of the Act.
•Section 8 of the BC Interpretation Act requires that “Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”
•Does this uphold the object? Is this an anomalous or unreasonable result?
•Title (Lane), Preamble (Re Anti Inflation), Purpose Statement (Young Offenders, Potato Council), Headings (Lohnes)
•Hansard (Rizzo, Canadian National Railway, Re Firearms)
•Legislative History (Rizzo, Mowat, traceable historical error — McIntosh)
•Presumptions:
•Jaagusta — punctuation (led to anomalous result)
•Medovarski — bilingual statutes
•Columbia River — horizontal coherence
•Levis — conflict between enactments
•Federal Paramountcy
•SFU — presumption of substantive change, s.37(2) — may be declaratory or confirmative
•Is there a contrary intention to any of the above?
Consider types of legislation, other common law presumptions.
Presumptions
may be rebutted by evidence in the statute that Parliament did not intend them to be used
eg. legislative history, mistranslations, ineffective with P against Tautology
- Uniformity of Expression
- words used in the statute have the same meaning throughout the statute
- Rule of Effectivity/Presumption Against Tautology
- the legislature does not waste words by repeating itself unnecessarily (Mowat)
- words that have similar meanings can be assumed to have different ones if they appear together (McDiarmid, Riddell)
- rebuttal: “shopping list” approach
- list of words whose meanings may overlap in order to cover every possible situation
- argument: some words have been added in an abundance of caution, so court should not assume each word has a unique meaning
Maxims of Interpretation
- Associated Meaning (noscitur a sociis)
- a word acquires meaning based on its surrounding words
- “horn” when surrounded by “flute, clarinet, trumpet” etc. is clearly a musical instrument
- McDiarmid Lumber - “agreement” had to be interpreted narrowly so “treaty” had meaning
- ejustem generis (basket clause, general term)
- the general term is defined by the words that precede it
- Nanaimo v. Rascal Trucking Co. “water or other thing”
i. a broad interpretation would mean anything could be relevant
- expressio unius (implied exclusion)
- mentioning one or several things implicitly excludes others
- relevant argument if there is reason to believe Parliament would have included the word if they meant the legislation to cover it
- Children’s Aid Society of Hamilton: unless a word is expressly excluded, it may be implied to be included if the Act or provision is taken in its entire context.
Bilingual Statutes — both versions equally authoritative. Use S.I. rules, then the narrower interpretation.
Bijural Statutes — in case of ambiguity, civil law meaning takes precedence in Quebec
Conflict Between Enactments — Recent prevails, Specific prevails, Specificity over Age.
Presumption of Substantive Change — any change in language in an amendment should be presumed to constitute a substantive change. Rebuttable by a contrary intention.
•eg. BCIA s.37(2): amending a law does not mean the law meant something different before the amendment. Declaratory, house-keeping.
Weak Common Law Presumptions
Crown Immunity — enactments do not apply to the Crown unless stated, necessary implication or contrary intention can be argued, presumption reversed in BC by s.14, now only applies to use of land
Against Extra-Territoriality — enactments apply to entire territory unless contrary intention, provinces cannot enter into international agreements
•Follow the law of the country you’re in. E-T effect is unavoidable and must be looked at in degree and purpose
Legislative Intention — presume legislation does not intend to interfere with Aboriginal rights
Against Interference with Rights — strict construction doctrine applied to
•personal liberty, security, or well-being
•freedom of commerce
•access to courts (right to bring an action or appeal)
•Rights of natural justice (procedural fairness)
•property rights
•privacy and personal security
•clear legislation will take precedence
•expropriation (government must provide due notice and fair compensation, unless clear language is used to express contrary intention)
Penal — Hasselwander
HR Statutes — quasi constitutional, broad interpretation (Jubran)
Tax Statutes — broader interpretation, not necessarily to favour taxpayer (Placer Dome)
Municipal Law — broad approach (Taxi Drivers v. Calgary)
Temporal Applications
Implied Repeal — s.4(4) BCIA, “otherwise ceased to have effect” if purpose, norm, or facts are obsolete
Retroactivity — changes the legal nature of an activity done in the past. Strong presumption against.
Retrospectivity
Vested Right — a right that arises under the common law. Can be taken away by statute.
•“No one has a vested right to continuance of the law as it stood in the past.” (Gustavson)
•Presumption: A statute should not be given a construction that would impair existing rights as regards person or property unless the language implies a contrary intention.
•ONLY applies when there is an ambiguity giving rise to two constructions
Accrued/Accruing right — arises under a statute
•BCIA s.35(1)(c) provides “if all or part of an enactment is repealed the repeal does not…affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed”.
•Broad and narrow readings (X wants broad, Y wants narrow…)
•Consider impact of each
•Rebuttable by contrary intention (X would argue this, Y would argue that)
•35(1)(e) and 35(2) — investigation, proceeding or remedy in relation to an accrued/accruing right may be continued after its repeal
•Inevitability necessary for accrued/accruing, mere right, hope, or opportunity is not sufficient (Scott)
Repeal — BCIA s.4, s.35 for zombies
•35(1)(a): if legislation is repealed it does not go back to any previous law existing before the repealed law, including common law
•(b) repealing a law does not affect anything in the past
•(c) repeal does not affect a right or obligation incurred, accruing, accrued under the repealed law (vested rights are different)
•i.e. you should be able to continue exercising your right if legislation comes into play that would otherwise make it unfair not to do so. Depends on nature of right, how much you depended on it.
•(d) offences done before the repeal are still an offence (depending on the nature, the Crown tends to elect not to prosecute, but they retain the right to do so)
•(e) repeal does not affect investigation or proceedings if the procedure has already started
Repeal and Replace — s.36
•(1)(a) personnel stays the same
•(1)(b) every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment,
•i.e. if something about the old is gonna screw up the new then don’t force it into the new
•(1)(c)follow the new procedure as far as possible to recover or enforce penalties or forfeitures, in enforcing rights, or in proceedings relating to matters before the repeal
•i.e. proceduresbegin under new enactment even if based on previous events under old law
•(1)(d) + s.11 Charter: an accused found guilty has the right to the benefit of the lesser punishment
•(1)(e) regulations continue under new enactment unless specifically repealed
•(1)(f): any reference to the old enactment now references the new one unless there is no provision, then the former enactment is “unrepealed” as far as the reference is concerned
•***UNLESS contrary intention
Right or Procedure — if right, they will want 35(1)(c). If procedure, look at s.36(1)(b)or (c)
Subordinate Legislation
•Presumption of Validity, i.e. onus is on the plaintiff to bring proof that it is invalid.
Characterize it:
•Regulations etc. have the force of law under s.41(2) BCIA
•i.e. X is a regulation that has the force of law OR X is merely a policy (Oldman River)
Identify source of authority to make S.L.:
•X is the enabling provision in the statute that confers express authority upon Y to make regulations. Regulations must always be interpreted in the context of the parent statute and particularly the enabling clause (and related statutes, if relevant). (Anti-Poverty)
•Check consistency with BCIA s.41(1):
•(a): regs that are “necessary and advisable, are ancillary to it and are not inconsistent with it”
•(b): provide administrative and procedural matters for which no express or partial provision has been made
•(c): limit the application of a reg in time or place or both
•(d): prescribe the amount of a fee authorized by the enactment
•(e): provide, for a regulation made by or with the approval of the Lieutenant Governor in Council, that its contravention constitutes an offence, and
•(f): provide that a person guilty of an offence created under (e) is liable to a penalty not greater than penalties in the Offence Act
•Identify express limitations, preconditions, requirements in the enabling act — check if they have been observed.
•A Henry VIII clause can be used to repeal or amend its parent statute (Waddell)or another statute (Grey) if the enabling clause gives express permission.
•Subordinate legislation must coincide with the purposes and objects of the parent statute as a whole, not just the literal terminology of the often broad enabling clause. (Katz)
Start with Vertical Coherence when determining validity of a reg, not scheme or object of the Act.
Consistent with:
•Constitution
•Federal legislation (will be paramount)
•Human rights statutes considered quasi-constitutional and will prevail
•Enabling statute will prevail
BCIA 13: an expression in a regulation has the same meaning as in the enactment authorizing the reg.
41(2): a regulation made under the authority of an enactment “has the force of law”
36(1)(e): allows a regulation to survive if the enabling Act is repealed and replaced
Anti-Poverty
Is the regulation consistent with the overall purpose of the Act?
Does the overall purpose of the Act impose further unwritten conditions on the enabling clause?
Is the regulation consistent with the conditions imposed on the enabling clause?
If no, then ultra vires.
s.4: Time of commencement or repeal
s.23: Powers to Act (i.e. delegation)
s.25: Calculation of Time
Cases
Rizzo — Big D, anomalous result, Hansard, benefits-conferring legislation, s.37 BCIA
Bell ExpressVu — Horizontal Consistency, contextual analysis, presumption of constitutionality
Merk — Big D, benefits-conferring legislation, anomalous result
Mowat — contrary intention (from deleted provision), presumption against tautology
Shaklee — ordinary meaning
Riddell — dictionary definition, “or” = different meanings
McDiarmid— associated meaning
Rascal Trucking — ejustem generis
Canadian National Railroad — expressio unius, mentioning one thing excludes another
Children’s Aid Society — unless a word is expressly excluded, it can be implied to be included (contrary intention to expressio unius
Lane — title
Commonwealth — title
Re Anti Inflation Act — preamble
Young Offenders, Potato — purpose statement doesn’t trump provisions/CL
Lohnes — heading
Jaagusta — punctuation (led to anomalous result)
Medovarski — bilingual statutes
Columbia River — horizontal coherence
Levis — conflict between enactments
SFU — Presumption of Substantive Change
Gustavson Drilling — Vested rights in land, No one has a vested right to continuance of the law as it was in the past.
Scott — Accruing right because procedure had advanced so far as to make its completion inevitable.
Oldman River — framed in mandatory terms and enacted through order, therefore law and not policy
Gray — Henry VIII clause can enable a delegate to repeal or amend another statute other than the parent statute; Parliament can delegate any authority provided it is expressly done.
Waddell — A Henry VIII clause can be used to repeal or amend its parent statute (Waddell)or another statute (Grey) if the enabling clause gives express permission.
Katz — Subordinate legislation must coincide with the purposes and objects of the parent statute as a whole, not just the literal terminology of the often broad enabling clause.
Anti-Poverty — An enabling clause must be read in the context of the entire Act to determine its scope.
Gustavson Drilling v. MNR (1977, SCC)
Vested rights in land. A statute should not be given a construction that would impair existing rights as regards person or property unless the language implies a contrary intention.
-this presumption only applies where the legislation is ambiguous and could reasonably give rise to two constructions
-No one has a vested right to continuance of the law as it was in the past. Legislation must conform to changing social needs and governmental policy.
-“A taxpayer may plan his financial affairs in reliance on the tax laws remaining the same; he takes the risk that the legislation may be changed.”
Scott v. College of Physicians and Surgeons of SK (1992, Sask CA)
Facts
Legislation was repealed and replaced saying the application must be within a year of his name being struck, which would mean Scott had run out of time.
Issue: Was the doctor’s position sufficiently advanced to bring it within the saving provisions of s.35(1)(c) of the Interpretation Act?
Decision:
•“Accruing rights and obligations are those necessarily or inevitably, not possibly or even probably, arising in due course.” Before a right and its duty may be said to be “accruing”, the events or conditions giving rise to it must have been so engaged to give rise to the right and the duty. Mere entitlement won’t suffice.
•Scott took some steps, as he was entitled to do, but at the moment of the repeal he had not “acquired” such right or had such right accrued in him, given the absence of the correlative duty in the registrar.
•There was no duty in the registrar to re-enter the name prior to repeal, therefore no right in Scott to have his name re-entered.
•Scott did everything he could have in the process. It was inevitable he would have done this.
•would have been unfair if he didn’t get this opportunity, because he did everything except press the button to send the money, only because the Council calculated it wrong
•Concrete steps had been taken by Scott and the registrar regarding payment, but since he gave his lawyer the amounts which the Council needed, the rights did not accrue as if he had paid them to the registrar. If the registrar had not made a request for too much money, the conditions would have been met and the obligation accrued.
•At the time of repeal, the court costs needed to be settled and then the money being held in trust would be transferred to the registrar.
•Therefore, the registrar was under an accruing obligation at the date of repeal.
•High threshold for accruing rights, because we don’t want too many living bits of dead legislation.
West Kootenay Problem:
•Know the positions that each side will want
•PIAC: statutory right under the legislation that has been accrued or accruing
•right to request costs, not just a procedural nicety
•therefore it fits 35(1)(c)
•West Kootenay: this is not about rights, this is about the procedure of the court
•if it is a process, then no right arises under 35(1)
•36(b) tells us that the procedure must continue consistent pursuant to the new Act
•therefore no costs (this argument is harder)
•PIAC: clearly not procedural, it is a right under 35(1)(c)
•Issue: was the right to ask accrued or accruing?
•PIAC: it was inevitable we would apply to ask, even though we haven’t submitted a claim yet, but we have done the necessary steps
•WK: the steps are the steps and you didn’t submit the claim, should have submitted regardless of common practice, legislation is clear that the right was taken away.
•this is not like Scott, there is a process that has to take place that is in the control of PIAC, rather than just the push of a button
•WK: contrary intention. Killed the old legislation for a reason
•PIAC: no contrary intention, no intention to interfere with rights that were existing and accruing under the legislation as part of that process
•hard part is the procedure question (difficult to spot)
Anti-Poverty
Issue: Is the Regulation ultra vires? I.e. does it go beyond what the Act allows?
Decision
•Plain meaning here must be found not at face value but in the context of the whole Act.
•Looked at other pertinent legislation, none of which had residency requirements
•Enabling clause did not impose specifically or impliedly the ability to impose a residency requirement
•Nothing in the context of the Act allows eligibility to be accorded in any targeted way (eg. exclude an occupation), even though regulations can establish rules of eligibility
•Purpose of GAIN: relief of poverty, neglect, or suffering, executed within financial parameters
•therefore, all people resident in the Province who suffers from poverty in the same defined degree are to receive GAIN’s benefit
•Manitoba case: is the regulation is a substantial addition to the Act or an inconsistent one?
•if substantial, it should probably have been done in the Act itself unless there is an express enabling clause — a general one is not sufficient to add substantially
•Legislative Presumption: statutes and regulations apply to all people in the province