Legal Research Guide
to Statutes
2007
Compiled by Eric B. Appleby
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Legal Research Guide to Statutes
Table of Contents
The language of statutes - common terms defined
................
Page 1
Introduction .........................................................................
Chapter 1
1.1 Scope of this guide
1.2 Supremacy of legislation
1.3 Enactment of legislation
1.4 Citation of a statute
1.5 Statute Citators
Operation and effect of statutes
.........................................
Chapter 2
2.1 Contracting out of a statute, when prohibited
2.2 Validity of statutes, judicial review
2.3 Enactment procedure, judicial review
2.4 Legislation by reference, what constitutes
2.5 Enabling statutes
2.6 Enforcement of enabling statutes
2.7 Delegated legislation
2.8 Delegated legislation, sub-delegation
2.9 Delegated legislation, extent of delegation
2.10 Delegated legislation, what constitutes a regulation
2.11 Delegated legislation, conflict with common law
2.12 Delegated legislation, ultra vires
2.13 Delegated legislation, validity, vagueness
2.14 Delegated legislation, repeal of empowering statute
2.15 Delegated legislation, orders-in-council, validity
2.16 Delegated legislation, orders, etc. made pursuant to
regulations
Operation and effect, on earlier statutes
...........................
Chapter 3
3.1 Effect of Amendments
3.2 Effect of implied repeals
3.3 Operation and effect, what constitutes a conflict of statutes
3.4 Status of proceedings started under repealed statute
3.5 Preservation of rights acquired under repealed statute
3.6 Retroactive versus retrospective
3.7 Effect on matters in progress
Interpretation of Statutes ................................................... Chapter 4
4.1 Introduction and the modern principle
4.2 Interpretation, general
4.3 Interpretation, purpose of legislation
4.4 Interpretation, intention of legislature
4.5 Interpretation, avoidance of unreasonable results
4.6 Interpretation, sensible and not literal interpretation
4.7 Interpretation, in accordance with reason and
convenience
4.8 Interpretation, ordinary meaning of words
4.9 Interpretation, conflict with other statutes
4.10 Interpretation, ambiguity defined
4.11 Interpretation, aids, legislative history
4.12 Interpretation, aids, similar statutes
4.13 Interpretation, aids, books and comments
4.14 Interpretation, aids, bilingual statutes
4.15 Interpretation, aids, punctuation
4.16 Interpretation, aids, presumptions, general
4.17 Interpretation, aids, presumptions, against alteration of
the law
4.18 Interpretation, aids, presumptions, against abridgment of
common law rights
Remedial Statutes
..............................................................
Chapter 5
5.1 Interpretation
Penal Statutes ......................................................................
Chapter 6
6.1 Interpretation
The language of statutes - common terms defined
act - an alternative name for a statute - see statute.
assent - see royal assent.
bill - a bill is an incipient statute. When a bill has been passed in Parliament or a
legislature, and has received royal assent, it becomes a statute.
codification - the process of collecting and arranging systematically, usually by
subject, the laws of a state, or the rules covering a particular subject of the law.
commencement - upon commencement a statute becomes binding and becomes
capable of producing legal effects. Commencement may occur at the same time
as enactment or it may be delayed. A Federal statute commences on the date of
assent unless the statute provides a starting date (Interpretation Act, R.S.C.
1985, c. I-21, s. 5(2)).
confiscatory legislation -
the seizure of private property by a government
without compensation to the owner.
consolidation or revision of statutes - a consolidation refers to the updating of
legislation to reflect amendments, whereas a revision permits the form of
legislation to be changed.
construction v. interpretation -
These terms are commonly used
interchangeably but "construction" is a term of wider scope than “interpretation."
"Interpretation" is only concerned with the meaning of the subject matter.
"Construction" may also explain the legal effects and consequences of the subject
matter. Interpretation precedes construction, but stops at the written text. A rule
of construction may govern the effect of an ascertained intention or may govern
in the absence of any intention (Black’s Law Dictionary (6th Ed.), p. 818).
convention - conventions are rules of the constitution that are not enforced by
the law courts. Conventions prescribe the way in which legal powers shall be
exercised (Constitutional Law of Canada, Peter W. Hogg, s. 1.10(a)).
declaratory statute - is enacted for the purpose of removing doubts about what
the law is in relation to a particular subject matter.
delegated or subordinate legislation - legislation made not by Parliament but by
persons or bodies on whom Parliament has conferred power to legislate on
specified subjects (The Oxford Companion to Law by David M. Walker, 1982,
p. 347).
delegatus non potest delegare
- a delegate of a power cannot delegate the
power unless authorised to do so (Huth v. Clarke (1890), 25 Q.B.D. 391).
directory act - a statute which is a mere direction or instruction of no obligatory
force and involving no invalidating consequence for its disregard (The Dictionary
of English Law by Earl Jowitt, 1959, p. 633).
ejusdem generis rule - a rule of construction, that general words following an
enumeration of particulars, are to have their generality limited by reference to the
preceding particular enumeration (The Dictionary of English Law by Earl Jowitt,
1959, p. 698).
enabling statute - a statute which makes it lawful to do something which would
not otherwise be lawful is called an enabling statute (Craies on Statute Law (7th
Ed.), p. 61).
enacting clause - a clause at the beginning of a statute which states the authority
by which it is made.
expressio unius exclusio alterius -
the express mention of one thing is the
exclusion of another.
extrinsic aids - evidence in aid of interpretation of a statute drawn from a source
outside of the statute.
generalia specialibus non derogant -
general things do not derogate from
special things.
golden rule - permits a court to depart from the ordinary meaning of a statute to
avoid absurdity, repugnancy or inconsistency (Sullivan and Driedger on the
Construction of Statutes (4th Ed.), p. 6).
green paper -
policy document for discussion in parliament: in the United
Kingdom or Canada, a document that contains the government’s policy proposals
that are to be discussed in Parliament (Encarta World English Dictionary, 1999,
p. 785). See also white paper.
interpretation - see construction.
intra vires - within the powers.
intrinsic aids - evidence in aid of interpretation of a statute drawn from a source
within the statute itself.
legislation - preparation and enactment of laws.
literal interpretation -
the interpretation of a statute according to its words
alone, see strict construction below.
mandatory statutes - statutes which require a course of action. A mandatory
provision in a statute is one the omission of which renders the proceedings, to
which it relates, void (Black’s Law Dictionary (6th Ed.), p. 962).
mischief rule -
a rule of construction that requires a court to consider the
mischief which the statute was meant to remedy. See remedial statutes below.
noscitur a sociis -
the meaning of a word is or may be known from the
accompanying words.
orders-in-council - an order made by the Queen by and with the advice of the
Privy Council. Some orders-in-council are made under statutory authority and
others are made by virtue of the royal prerogative.
ordinance - usually a term used to designate the enactments of the legislative
body of a municipal corporation.
penal statute - a statute that imposes penalties and punishments for an offence
committed.
peremptory - final, conclusive.
peremptory statute - an obligatory statute, as opposed to a permissive statute
(The Dictionary of English Law by Earl Jowitt, 1959, p. 1329).
permissive - allowed, allowable.
preamble - a clause at the beginning of a statute explanatory of the reasons for its
enactment and the objects sought to be accomplished.
presumptions - an inference in favour of a particular fact. A presumption is a
rule of law by which the finding of a basic fact gives rise to the existence of a
presumed fact, until the presumption is rebutted.
private statutes - are generally in the interest of individuals or local governments
and are distinguished from measures of public policy in which the whole
community is interested (Mozley and Whiteley’s Law Dictionary (7th Ed.),
1962, p. 273).
proclamation -
the act of publically proclaiming or publishing, a formal
declaration. Statutory proclamations are issued by the Crown, not under the
prerogative, but under statutory authority (The Oxford Companion to Law by
David M. Walker, 1982, p. 1004).
prohibit - to forbid by law, to prevent.
prospective statute -
one applicable only to cases which arise after its
enactment.
public statutes - affect the whole community or a considerable part of it.
regulations -
subordinate legislation by government departments under the
authority of acts of Parliament or acts of a legislature.
remedial statutes - historically remedial statutes included statutes designed to
cure mischief, advance religion or confer public benefits. But all Canadian
jurisdictions have enacted provisions along the lines of “Every enactment is
deemed remedial ...." (Sullivan and Driedger on the Construction of Statutes
(4th Ed.), pp. 381, 382).
retroactive statutes - “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, per Dickson, J. in Gustavson Drilling
(1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401.
retrospective statutes - see retroactive statutes.
revision of statutes - see consolidation.
royal assent - the act by which the Crown agrees to a bill already passed by
Parliament or a provincial legislature. By convention this is a formality only
(Constitutional Law of Canada, Peter W. Hogg, s. 1.10(a)).
rules of court - rules that regulate the practice and procedure before the various
courts.
standing orders -
rules that govern the procedure in a legislature, council,
society, etc. (Canadian Oxford Dictionary (2nd Ed., 2004), p. 1518).
statute - a formal written enactment of a legislative body.
strict construction - strict or literal construction of a statute recognizes nothing
that is not expressed, takes the language used in its exact and technical meaning
and admits no equitable considerations (Black’s Law Dictionary (6th Ed.), p.
313).
subordinate legislation - see delegated or subordinate legislation above.
sui generis - unique, of its own kind.
ultra vires - beyond the powers.
white paper - an official government report: in many countries, an official report
setting out government policy on a particular issue to be voted on by the
country’s legislature (Encarta World English Dictionary, 1999, p. 785). See
also Green paper above.
Legal Research Guide to Statutes
Chapter 1 - Introduction
1.1
Scope of this guide
Legal research is the process of finding a case, statute, regulation, text,
etc., that is relevant to a legal issue.
How does a lawyer resolve a legal issue? First, the lawyer must identify
the issue. The issue can, in many cases, be resolved by finding a binding case (a
precedent) or a relevant statute or regulation. Case law and statutes and
regulations are referred to as primary sources of the law.
This legal research guide is meant to provide instruction on how to find
cases that are relevant to an issue in the law of statutes and statutory
interpretation. This guide does not provide instruction on how to find statutes or
regulations. For instructions on finding statutes, see:
Legal Research Handbook (5th Ed. 2003), by D.T. MacEllven et al.;
and
Legal Writing and Research Manual (6th Ed. 2004), by M.J. Iosipescu
and P.W. Whitehead.
Each section in this guide refers to a principle and to cases that apply the
principle. At the end of each section is one of Maritime Law Book’s key numbers
that can be used to search for additional cases that apply the principle - use a key
number to search in print law reports or at www.mlb.nb.ca. A key number can be
used to do a computer search of a single province or to search simultaneously
every common law jurisdiction in Canada. The MLB key numbers set out below
are preceded by the words "Search aid".
The MLB key numbers are useful because a point of law in a case is
always assigned the same key number by MLB editors. For example, the key
number Statutes Topic 503 is assigned to all cases that consider the avoidance of
unreasonable results. A list of MLB key numbers is found in any recent MLB
digest (a digest covers 10 volumes in any report series) and at www.mlb.nb.ca.
To generate a key number list of cases, at www.mlb.nb.ca click on "Key Number
Search", click on a title, such as Statutes, and then click on the key number.
See Appendix in this guide for a complete list of all the key numbers
assigned by MLB editors to headings in the topic Statutes.
Appendix also includes under each key number a list of cases that have
been assigned to the key number.
In addition to the case law a researcher should consult texts on the
subject of statutes. For example, see:
Sullivan and Driedger on the Construction of Statutes (4th Ed.
2002).
For a text on doing legal research of both case law and statute law, see:
Legal Research Handbook (5th Ed. 2003) by Douglass T. MacEllven et
al., published by Lexis/Butterworths.
1.2
Supremacy of legislation
In Canada, the Parliament and the provincial legislatures have the
sovereign power to legislate in their respective fields of jurisdiction. This principle
is known as Parliamentary Sovereignty or Parliamentary Supremacy.
Since 1982 these sovereign powers have been limited by the Canadian
Charter of Rights and Freedoms.
Legislation may expressly amend the common law. In the case of R. v.
Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201 (S.C.C.), the
Supreme Court of Canada stated at para. 44, "The question before us is not
whether Parliament can amend the common law, it clearly can".
See Sullivan and Driedger on the Construction of Statutes (4th Ed.
2002), p. 340:
"Legislation is paramount. It follows from the principle of legislative
sovereignty that validly enacted legislation is paramount over the common
law."
1.3
Enactment of legislation
A federal public statute starts as a bill and is introduced during a session
of Parliament. After a bill is passed in the House of Commons and the Senate, it is
sent to the Governor-General to receive Royal Assent, after which a bill becomes
an act or statute. For each calendar year, all new acts are bound in an annual
volume called the Statutes of Canada. The annual volume of the Statutes of
Canada includes amendments to existing statutes.
The procedure for the enactment of a provincial statute is similar to the
enactment of a federal statute.
Statutes may be either public or private. A public statute applies to the
whole community or a considerable part of it. A private statute relates to particular
persons or to particular places.
The term "legislation" includes subordinate legislation. Subordinate
legislation is enabled or made under powers conferred by a statute and includes
regulations, orders, bylaws, etc.
1.4
Citation of a statute
When a statute is enacted it is given a chapter number. For example,
Extradition Act, S.C. 1999, c. 18, refers to a statute, the Extradition Act,
enacted in 1999 by Parliament and assigned the chapter number 18. Similarly,
Bank Act, S.C. 1991, c. 46, refers to and is the citation for a statute, the Bank
Act, enacted in 1991 by Parliament and assigned the chapter number 46.
Usually every 10 or more years, both the federal and provincial
governments revise and consolidate their public statutes. When a revision is
complete the former versions are repealed. For example, Criminal Code, R.S.C.
1985, c. C-46, refers to and is the citation for the Criminal Code of Canada that is
found in chapter C-46, in the Revised Statutes of Canada 1985.
Only public statutes are published in a revised edition of statutes.
Provincial statutes are cited in a similar manner, for example, Legal
Profession Act, S.B.C. 1998, c. 9, refers to a statute, the Legal Profession Act,
enacted by the British Columbia legislature in 1998 and assigned the chapter
number 9.
1.5 Statute Citators
A basic function of a statute citator is to alert the researcher to any
statutes that have been judicially considered. Each volume of any series of MLB
law reports includes an index titled Index to Statutes Noticed. MLB editors
include in this index any statute, regulation or rule of court, etc., that is the subject
of a judicial comment.
Some statute citators contain a list of statutes for a selected province or
for Canada and indicate whether the statute was amended. Such amendments can
also be found by consulting the annual volume of statutes for a province or for
Canada.
Chapter 2 - Operation and effect of statutes
2.1 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."
Search aid - MLB Key No. - Statutes Topic 4508 is assigned to cases
that consider the effect of contracting out of the benefits or burdens of a statute.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
2.2 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.
2.3 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.), the headnote stated:
"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."
Search aid - MLB Key No. - Statutes Topic 4543 is assigned to cases
that consider the review by the courts of the enactment procedure for a statute.
See www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
2.4 Legislation by reference, what constitutes
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
."'" (Emphasis in original)
Search aid - MLB Key No. - Statutes Topic 4606 is assigned to cases
that consider what constitutes legislation by reference. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
2.5 Enabling statutes
Overview: 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."
Search aid - MLB Key No. - Statutes Topic 4803 is assigned to cases
that consider what constitutes an enabling statute. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
2.6 Enforcement of enabling statutes
In the case of Mountstephen Construction Ltd., Re (1977), 6 A.R.
607 (T.D.), the headnote stated:
"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."
Search aid - MLB Key No. - Statutes Topic 5183 is assigned to cases
that consider the enforcement of an enabling statute. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
2.7 Delegated legislation
Overview: 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 comprises orders, rules, regulations, by-laws, etc., made
under statutory powers. Such delegation has become a normal feature of law-
making in Canada.
Chapter 2.2 above refers to the limited authority of the courts to canvass
the validity of statutes. Unlike statutes, the courts will canvass the validity of
delegated legislation to ensure that all the conditions precedent to the validity of the
rule, regulation, etc., have been fulfilled.
..................................................................
In the case of Sutherland et al. v. Canada (Attorney General) et al.
(2002), 170 B.C.A.C. 233; 279 W.A.C. 233 (C.A.), the British Columbia Court of
Appeal stated at paras. 69 to 73:
"[69] Driedger refers to 'subsidiary laws', known by a variety of
expressions including regulations, rules, orders, bylaws, and ordinances
or, collectively, as 'subordinate or delegated legislation'. He then divides
subsidiary laws into categories, including Orders-in-Council in the first
category, which includes 'laws made by the executive or by some body
or person that is subject to some degree of control by the executive'. He
says that, although it is not identical to a statute, 'all subordinate
legislation constitutes law'. Accordingly, to the extent that the Order-in-
Council was within the authority granted in the over-arching legislation,
its validity cannot be questioned: E.A. Driedger, The Construction of
Statutes, Appendix IV, Subordinate Legislation, pp. 274-²77.
"[70] It is clear that statutory authority may be conferred by subordinate
legislation. In Reference Re Validity of Regulations in Relation to
Chemicals, [1943] S.C.R. 1, Chief Justice Duff said:
'One observation of a general character remains. It is possible
that in what has been said above it has not been sufficiently
emphasized that every order in council, every regulation, every
rule, every order, whether emanating immediately from His
Excellency the Governor General in Council or from some
subordinate agency, derives its legal force solely from the War
Measures Act, or some other Act of Parliament. All such
instruments derive their validity from the statute which creates
the power, and not from the executive body by which they are
made. (The Zamora [1916] 2 A.C. 77 at 90 ... .)'
"[71] Orders-in-Council are also considered Regulations under the
Interpretation Act, R.S.C. 1985, c. I-21. Section 2(1) defines
'regulation' as including an 'order ... made or established ... (a) in the
execution of a power conferred by or under the authority of an Act, or
(b) by or under the authority of the Governor in Council'.
"[72] Orders-in-Counsel are 'official Cabinet decisions, signed by Her
Majesty's representative and usually made pursuant to a power granted
by statute'. They are instruments through which 'specific responsibilities
conferred upon the government under [an] Act are carried out'; they may
be the means by which the government passes, approves or adopts a
regulation, or may be the means by which the government confers
jurisdiction upon an authority to exercise particular powers: L. Dussault
& L. Borgeat, Administrative Law, A Treatise (2nd Ed. 1985), vol. 1,
p. 268. Indeed, Proudfoot, J., as she then was, stated that Orders-in-
Council are 'the general medium by which ... many statutory powers
conferred on the [Governor] in Council are exercised' in Coyle v.
British Columbia (Minister of Education), [1978] 6 W.W.R. 279
(B.C.S.C.), at p. 286.
"[73] Halsbury's Laws of England (4th Ed., Reissued 1995), vol. 44(1),
paras. 1499-1500, also recognizes Orders-in-Council as a type of
subordinate legislation which has 'the full force and effect of an Act'."
2.8 Delegated legislation, sub-delegation
In the case of Peralta et al. v. Ontario (1985), 7 O.A.C. 283 (C.A.), the
Ontario Court of Appeal stated at paras. 35 and 36:
"[35] When courts have considered whether delegation of ministerial
powers was intended considerable weight has been given to
'administrative necessity', that is, it could not have been expected that the
Minister (in this case the Governor in Council) would exercise all the
administrative powers given to him. Further, in such cases the suitability
of the delegate has been a material factor in determining whether such
delegation is intended and lawful. See Lanham, 'Delegation and the
Alter Ego Principle' (1984), 100 Law. Q. Rev. 587.
"[36] 'There is no rule or presumption for or against sub-delegation':
Driedger, 'Subordinate Legislation' (1960), 38 Can. B. Rev. 2 at p. 22.
The language of the statute must be interpreted in light of what the
statute is seeking to achieve. As Professor Willis pointed out, the maxim
'delegatus non potest delegare' does not state a rule of law; it is 'at most a
rule of construction' and in applying it to a statute 'there, of course, must
be a consideration of the language of the whole enactment and of its
purposes and objects'. Willis, 'Delegatus Non Potest Delegare' (1943),
21 Can. B. Rev. 257."
Search aid - MLB Key No. - Statutes Topic 5312 is assigned to cases
that consider the validity of the sub-delegation of a statutory power. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
2.9 Delegated legislation, extent of delegation
In the case of Berteit v. Carlisle (1987), 80 N.B.R.(2d) 153; 202 A.P.R.
153 (T.D.), the headnote stated:
"Delegated legislation - Prohibition against including substantive law - The
Legislature authorized the Lieutenant-Governor in Council to make
regulations under the New Brunswick Police Act - The New Brunswick
Court of Queen's Bench, Trial Division, stated that such a delegation does
not include the power to provide substantive rules which should have
been included in the statute (see paragraph 14)."
Search aid - MLB Key No. - Statutes Topic 5314 is assigned to cases
that consider the prohibition against including substantive law in the delegated
legislation. See www.mlb.nb.ca and Appendix for a list of cases that dealt with
this issue.
2.10 Delegated legislation, what constitutes a regulation
In the case of Michaels et al. v. Red Deer College (1975), 5 N.R. 99
(S.C.C.), the headnote stated:
"Delegated legislation - Regulations - What constitutes a regulation -
Alberta Regulations Act, s. 2(2) - The Supreme Court of Canada stated
that an appointment of a teacher to a position at the Red Deer College
pursuant to an order in council did not constitute a regulation subject to
the filing provisions of the Regulations Act - See paragraphs 14 and 15."
Search aid - MLB Key No. - Statutes Topic 5353 is assigned to cases
that consider what constitutes a regulation. See www.mlb.nb.ca and Appendix for
a list of cases that dealt with this issue.
2.11 Delegated legislation, conflict with common law
In the case of Saskatchewan Insurance, Office and Professional
Employees' Union, Local 397 v. Saskatchewan Government Insurance
(1984), 34 Sask.R. 2 (Q.B.), the headnote stated:
"Delegated legislation - Regulations - Validity of - Conflict with common
law - On a certiorari application, Queen's Bench Rule 669 required the
tribunal to return to the court the 'conviction, order, decision and reasons
therefore together with the process commencing the proceeding, and all
other things touching the proceeding' - The Saskatchewan Court of
Queen's Bench held that the rule was ultra vires to the extent that it
altered or expanded the common law definition of 'the record'."
Search aid - MLB Key No. - Statutes Topic 5364.1 is assigned to cases
that consider the validity of a regulations that conflict with the common law. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
2.12 Delegated legislation, ultra vires
In the case of Pacific Pilotage Authority v. Alaska Trainship Corp.
(1979), 35 N.R. 271 (S.C.C.), the headnote stated:
"Delegated legislation - Regulations - Validity of - Ultra vires - Whether
purpose of regulation authorized by empowering statute - Ss. 9(2) and
10(1) of the Pacific Pilotage Regulations made compulsory pilotage
conditional upon place of registration of ships - The Pilotage Act, S.C.
1970-71-72, c. 52, s. 12, stipulated that the primary object of the Pacific
Pilotage Authority was safety and s. 14 empowered the Authority to
make regulations to that end - The Supreme Court of Canada affirmed
the decision of the Federal Court of Appeal that the condition in the
Regulations respecting place of registration was invalid, where it did not
relate to safety and was in the circumstances an irrelevant consideration -
See paragraphs 20 to 24."
Search aid - MLB Key No. - Statutes Topic 5367 is assigned to cases
that consider the validity of a regulation and the authority of the empowering
statute. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
2.13 Delegated legislation, validity, vagueness
In the case of Canadian Pacific Ltd. v. Canadian Transport
Commission (1988), 86 N.R. 360 (F.C.A.), the headnote stated:
"Delegated legislation - Regulations - Validity - Vagueness or lack of
particularity - The Canadian Transport Commission issued an order
adopting by reference a Uniform Classification of Accounts for railways
- A few weeks later it sent a letter to interested parties containing a copy
of relevant revisions to make its previous order meaningful - The Federal
Court of Appeal held that the order was invalid for vagueness, which was
not cured by the subsequent explanatory letter - See paragraphs 12 to
16."
Search aid - MLB Key No. - Statutes Topic 5369 is assigned to cases
that consider whether a regulation is void for vagueness. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
2.14 Delegated legislation, repeal of empowering statute
In the case of Diamond Motel Ltd. v. Jasper School Board (1977), 2
A.R. 586 (T.D.), the headnote stated:
"Delegated legislation - Effect of the repeal of empowering statute -
Preservation of validity of order - Interpretation Act, s. 24(1) - The
Jasper School District Board of Trustees was empowered to impose and
collect taxes pursuant to an order of the Minister of Education, dated
September 5, 1956, made pursuant to the School Act 1952, s. 304 - The
order dated September 5, 1956, was not replaced when successive
statutes, containing sections similar to s. 304, were enacted in
substitution of the School Act 1952 - A taxpayer challenged the authority
of the Jasper School District to impose and collect taxes for year 1973 -
The Alberta Supreme Court, Trial Division, held that the order of
September 5, 1956, remained valid by virtue of s. 24(1) of the Alberta
Interpretation Act - S. 24(1) stated that regulations or orders, made under
a repealed statute, remain in force where 'other provisions are substituted
by way of amendment, revision or consolidation' - See paragraphs 10 to
42."
Search aid - MLB Key No. - Statutes Topic 5588 is assigned to cases
that consider the effect of the repeal of an empowering statute. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
2.15 Delegated legislation, orders-in-council, validity
In the case of Templeton Place Ltd. v. Delano (1985), 69 N.S.R.(2d)
211; 163 A.P.R. 211 (C.A.), the headnote stated:
"Delegated legislation - Orders-in-council - Validity - The Nova Scotia
Court of Appeal stated that 'Orders-in-council exclusively of a legislative
nature, where the Governor in Council purports to exercise a power
specifically delegated to him by the Legislature by statute, are not
challengeable by certiorari any more than are the statutes themselves' -
See paragraph 27."
Search aid - MLB Key No. - Statutes Topic 5518 is assigned to cases
that consider the validity of orders-in-council. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
2.16 Delegated legislation, orders, etc. made pursuant to regulations
In the case of Weatherall v. Canada; Conway v. R.; Spearman v.
Collins Bay Penitentiary Disciplinary Tribunal (1987), 11 F.T.R. 279 (T.D.),
the headnote stated:
"Delegated legislation - Directives made pursuant to regulations - Nature
and effect - The Federal Court of Canada, Trial Division, stated that an
infringement of a penitentiary commissioner's directive may give rise to
disciplinary action within the institution but the directive creates no legal
rights or obligations - See paragraph 63."
Paragraph [63] stated:
"[63] In particular, as I have indicated at various points earlier, the
Commissioner's Directives cannot be regarded as 'law' within the
meaning of section 1. There is persuasive jurisprudence to this effect,
based on the rationale that Commissioner's Directives are designed for
the internal management of prison institutions. Their infringement may
give rise to disciplinary action within the institution, but they create no
legal rights or obligations. [See footnote 45]. Counsel for the defendants
and respondent cited to me decisions of the Federal Court of Appeal
which he contended refuted this jurisprudence. On examination I am
satisfied these decisions [See footnote 46] do no such thing and in fact
expressly distinguish the situations dealt with there from the leading
decision of four judges of the Supreme Court in Martineau to the effect
that Commissioner's Directives are not law."
In the case of Mohammad v. Minister of Employment and
Immigration (1988), 91 N.R. 121 (F.C.A.), the headnote stated:
"Delegated legislation - Orders or directives made pursuant to regulations
- Nature and effect of - The Federal Court of Appeal held that the
Supreme Court of Canada in Martineau and Butters v. Matsqui Institution
Disciplinary Board, 14 N.R. 284, established that policy directives,
whether made pursuant to regulatory authority or general administrative
capacity, are no more than directions and are unenforceable by members
of the public - See paragraph 14."
Search aid - MLB Key No. - Statutes Topic 5543 is assigned to cases
that consider the effect of orders, etc. made under regulations. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
Chapter 3 - Operation and effect, on earlier statutes
3.1 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 ...'"
Search aid - MLB Key No. - Statutes Topic 6141 is assigned to cases
that consider the effect of amendments on earlier statutes. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
3.2 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.)."
Search aid - MLB Key No. - Statutes Topic 6226 is assigned to cases
that consider the effect of implied repeals of earlier statutes. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
3.3 Operation and effect, what constitutes 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.'"
Search aid - MLB Key No. - Statutes Topic 6252 is assigned to cases
that consider what constitutes a conflict between statutes. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
3.4 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.), the headnote
stated in part:
"Operation - Effect on earlier statutes - 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."
Search aid - MLB Key No. - Statutes Topic 6348 is assigned to cases
that consider the continuation of proceedings commenced under a repealed
statute. See www.mlb.nb.ca and Appendix for a list of cases that dealt with this
issue.
3.5 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.), the headnote stated in part:
"Operation and effect - 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."
Search aid - MLB Key No. - Statutes Topic 6903 is assigned to cases
that consider the preservation of rights acquired under a repealed statute. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
3.6 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."
Search aid - MLB Key No. - Statutes Topic 6703.1 is assigned to cases
that consider the distinction between retroactive and retrospective. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
3.7 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."
Search aid - MLB Key No. - Statutes Topic 6745 is assigned to cases
that consider the effect of a statute on matters in progress. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
Chapter 4 - Interpretation of Statutes
4.1 Introduction and the modern principle
The leading Canadian text on the interpretation of statutes is Sullivan and
Driedger on the Construction of Statutes (4th Ed. 2002).
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.
4.2 Interpretation, 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."
Search aid - MLB Key No. - Statutes Topic 499 is assigned to cases
that consider the general principles of interpretation. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
4.3 Interpretation, 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."
Search aid - MLB Key No. - Statutes Topic 501 is assigned to cases
that consider the duty of a court to promote the purpose of legislation. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.4 Interpretation, intention of legislature
In the case of Minister of National Revenue v. Schwartz (1996), 193
N.R. 241 (S.C.C.), the headnote stated:
"Interpretation - Intention of 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."
Search aid - MLB Key No. - Statutes Topic 502 is assigned to cases
that consider the determination of the intention of the legislature. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.5 Interpretation, 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.), the headnote stated in part:
"Interpretation - 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."
Search aid - MLB Key No. - Statutes Topic 503 is assigned to cases
that consider the avoidance of unreasonable results. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
4.6 Interpretation, sensible and not literal interpretation
In the case of McMonagle v. Westminister (City) (1990), 109 N.R.
209 (H.L.), the headnote stated in part:
"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."
Search aid - MLB Key No. - Statutes Topic 507 is assigned to cases
that consider a sensible and not a literal interpretation. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
4.7 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'."
Search aid - MLB Key No. - Statutes Topic 509 is assigned to cases
that consider an interpretation in accordance with reason and convenience. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
4.8 Interpretation, 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.),
the headnote stated:
"Interpretation - General principles - 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."
Search aid - MLB Key No. - Statutes Topic 516 is assigned to cases
that consider the ordinary meaning of words. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.9 Interpretation, 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.), the headnote stated in part:
"Interpretation - 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."
Search aid - MLB Key No. - Statutes Topic 1409 is assigned to cases
that consider a conflict with other statutes. See www.mlb.nb.ca and Appendix for
a list of cases that dealt with this issue.
4.10 Interpretation, ambiguity defined
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.), the headnote
stated in part:
"Interpretation - Construction where meaning is not plain - General
principles - Ambiguity - General - 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."
Search aid - MLB Key No. - Statutes Topic 1414 is assigned to cases
that consider what constitutes an ambiguity. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.11 Interpretation, aids, legislative history
In the case of Canada 3000 Inc. (Bankrupt), Re (2004), 183 O.A.C.
201 (C.A.), the headnote stated in part:
"Interpretation - Construction where meaning is not plain - Aids or
methods to determine meaning - Legislative history - General - 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."
Search aid - MLB Key No. - Statutes Topic 1449 is assigned to cases
that consider legislative history as an aid. See www.mlb.nb.ca and Appendix for a
list of cases that dealt with this issue.
4.12 Interpretation, aids, similar statutes
In the case of British Columbia Development Corp. v. Ombudsman
(1984), 55 N.R. 298 (S.C.C.), the headnote stated in part:
"Interpretation - 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.
4.13 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."
Search aid - MLB Key No. - Statutes Topic 1701 is assigned to cases
that consider books and comments as an aid. See www.mlb.nb.ca and Appendix
for a list of cases that dealt with this issue.
4.14 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."
Search aid - MLB Key No. - Statutes Topic 1801 is assigned to cases
that consider bilingual statutes as an aid. See www.mlb.nb.ca and Appendix for a
list of cases that dealt with this issue.
4.15 Interpretation, aids, punctuation
In the case of Peters Transport Ltd. v. Motor Transport Board (Man.)
(1981), 17 Man.R.(2d) 368 (C.A.), the headnote stated in part:
"Interpretation - Intrinsic aids - Punctuation - General - 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."
Search aid - MLB Key No. - Statutes Topic 1822 is assigned to cases
that consider punctuation as an aid. See www.mlb.nb.ca and Appendix for a list
of cases that dealt with this issue.
4.16 Interpretation, aids, presumptions, general
Overview: 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.), the headnote stated in part:
"Interpretation - Presumptions and rules in aid - General - 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."
Search aid - MLB Key No. - Statutes Topic 2251 is assigned to cases
that consider presumptions as an aid. See www.mlb.nb.ca and Appendix for a list
of cases that dealt with this issue.
4.17 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.), the headnote stated in part:
"Interpretation - Presumptions in aid - Presumption against alteration of
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)."
Search aid - MLB Key No. - Statutes Topic 2259 is assigned to cases
that consider the presumption against alteration of the law. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
4.18 Interpretation, aids, presumptions, against abridgment of common law
rights
In the case of R. v. Jones (1983), 43 A.R. 251 (C.A.), the headnote
stated in part:
"Interpretation - 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."
Search aid - MLB Key No. - Statutes Topic 2262 is assigned to cases
that consider the presumption against abridgement of common law rights. See
www.mlb.nb.ca and Appendix for a list of cases that dealt with this issue.
Chapter 5 - Remedial Statutes
5.1 Interpretation
In the case of Employment Standards Officer v. Equitable
Management Ltd. (1990), 40 O.A.C. 384 (Div. Ct.), the headnote stated in part:
"Remedial statutes - General principles - Interpretation - The Ontario
Divisional Court held that the Employment Standards Act, R.S.O. 1980,
c. 132, as remedial legislation should be given a broad and liberal
interpretation consistent with its true intent, meaning and spirit - See
paragraph 10."
Search aid - MLB Key No. - Statutes Topic 8506 is assigned to cases
that consider the interpretation of remedial statutes. See www.mlb.nb.ca and
Appendix for a list of cases that dealt with this issue.
Chapter 6 - Penal Statutes
6.1 Interpretation
In the case of R. v. Wust (L.W.) (2000), 252 N.R. 332; 134
B.C.A.C. 236; 219 W.A.C. 236 (S.C.C.), the Supreme Court of Canada
stated at para. 34:
"[34] In his judgment, Rosenberg, J.A., employed several well-
established rules of statutory interpretation to conclude as he did, at
p. 69, that s. 719(3) provides sentencing judges with a 'substantive
power to count pre-sentence custody in fixing the length of the
sentence'. I agree with his analysis. In particular, I approve of his
reference to the principle that provisions in penal statutes, when
ambiguous, should be interpreted in a manner favourable to the
accused (see R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178
N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481; 36 C.R.(4th) 171, at
para. 29, per Lamer, C.J.); to the need to interpret legislation so as
to avoid conflict between its internal provisions, to avoid absurd
results by searching for internal coherence and consistency in the
statute; and finally, where a provision is capable of more than one
interpretation, to choose the interpretation which is consistent with the
Charter: Davidson v. Slaight Communications Inc., [1989] 1
S.C.R. 1038; 93 N.R. 183, at p. 1078 [S.C.R.], per Lamer, J. (as
he then was)."
Search aid - MLB Key No. - Statutes Topic 8410 is assigned to
cases that consider the interpretation of penal statutes. See www.mlb.nb.ca
and Appendix for a list of cases that dealt with this issue.
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