Interpreting Legislation—A Guide for Practitioners The Canadian Bar Association—Nova Scotia

Online CLE January 20, 2012 James Charlton & Scott McCrossin∗

I. Introduction ................................................................................................................................2 II. The Legislative Process .................................................................................................................2

A. The Legislative Process at the Nova Scotia House of Assembly ...................................................... 4 (i) Types of Bills .............................................................................................................................. 4 (ii) Stages of the Legislative Process ............................................................................................... 5

B. The Legislative Process at the Parliament of Canada ...................................................................... 8 (i) Types of Bills .............................................................................................................................. 8 (ii) Stages of the Legislative Process ............................................................................................... 8

III. Anatomy of an Act ..................................................................................................................... 10 A. Long Title ........................................................................................................................................ 11 B. Short Title ....................................................................................................................................... 12 C. Preamble ........................................................................................................................................ 13 D. Enacting Words .............................................................................................................................. 14 E. Headings and Parts ........................................................................................................................ 14 F. Marginal Notes and Headers ......................................................................................................... 16 G. Punctuation .................................................................................................................................... 17 H. Schedules ....................................................................................................................................... 18

(i) Materials in a Schedule Incorporated into the Enactment ..................................................... 18 (ii) Materials in a Schedule not Incorporated but Validated ........................................................ 18 (iii) Materials in a Schedule Included for Convenience Only ......................................................... 18

IV. How to Approach a Question of Statutory Interpretation ............................................................ 19 A. Some Preliminary Observations ..................................................................................................... 20

(i) Fact, Not Abstract .................................................................................................................... 20 (ii) Cases Afar, Not Just Cases at Bar ............................................................................................ 21 (iii) “Tools”, Not “Rules” ................................................................................................................ 21 (iv) Show You’re Right, then Show the Light ................................................................................. 21

B. Seven Steps to Statutory Interpretation ........................................................................................ 22 Step 1: Isolate and write out the issue. ...................................................................................... 23 Step 2: Check to see if the provision in issue has already been interpreted. ............................ 23 Step 3: Articulate precisely and write down the meaning you propose .................................... 24

∗James Charlton of the Office of the Legislative Counsel (Nova Scotia) and Scott McCrossin of the Department of Justice Canada. The contents of this paper do not necessarily reflect the views of the authors’ employers.

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Step 4: Read the legislation. ....................................................................................................... 25 Step 5: Conduct a formal statutory interpretation analysis. ...................................................... 26 Step 6: Read the Interpretation Act. ........................................................................................... 34 Step 7: Frame your argument. .................................................................................................... 34

V. Extrinsic Aids to Statutory Interpretation .................................................................................... 36 A. Legislative History .......................................................................................................................... 36 B. Administrative Interpretation ........................................................................................................ 39 C. Judicial Interpretation .................................................................................................................... 40

I. Introduction A first year law student could be forgiven for thinking that the study and practice of law is all about reading and understanding case law. For so much of the three years we spend in law school, we read and analyse cases and excerpts from cases, using inductive reasoning to discover the common law. Even in courses dealing with largely statute-based areas of law (e.g., criminal law, corporate law), we are apt to spend more time reading case law than reading legislation.

Upon graduation, we find that things are very different than they were in law school. In practice, many aspects of the common law have been superseded or codified by statute, and new programs and schemes have been created through legislation. The modern lawyer spends much time reading and interpreting statutes (and perhaps regretting having not taken a course in statutory interpretation in law school).

Reading a statute is not like reading a book—if it were that easy, this paper would be unnecessary. Statutes and other legislative instruments have a language all their own, and are subject to rules of interpretation that have been crafted and elucidated by the courts over time. The purpose of this paper is to provide an overview of legislation and, in particular, statutes—how they are made, how they are structured and how they are to be interpreted. While no substitute for a learned treatise or an academic course in statutory interpretation, this paper endeavours to be a useful primer for those with little background in interpreting legislation, and a helpful refresher for those with more. The authors hope that this paper will provide a useful starting point for counsel faced with questions of legislative interpretation, providing references to helpful cases and the leading textbooks, as well as the knowledge and skills needed to resolve such questions effectively and efficiently.

II. The Legislative Process The process by which a bill becomes a statute varies as between different jurisdictions, but among the Legislatures of the provinces and territories of Canada, one of the essential features is that the bill must be considered three times before it can become law. In the language of Parliament, it is said that the bill

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must be given three “readings”.1

The practice of giving every bill three separate readings derives from ancient parliamentary practice in the United Kingdom. Bills used to be introduced in handwritten form, and technological limitations made it impractical to produce large numbers of copies of bills for the use of members of Parliament. The Clerk would literally read the bill out loud in the House to inform the members of the bill’s content. Nowadays, although the bill is no longer read aloud to members, the formality of holding the three readings is retained.

In the Parliament of Canada, which is bicameral (meaning that it has two legislative chambers, rather than the single chamber possessed by the provincial and territorial legislatures), a bill must receive three readings in each of the House of Commons and the Senate.

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The Constitution Act, 1867 provides the final essential step in the making of a statute: Royal Assent by the Governor General of Canada (for a bill passed by the Parliament of Canada) or the Lieutenant Governor of the province (for a bill passed by a provincial Legislature).

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The paragraphs below set out the legislative process at the Nova Scotia House of Assembly.

In addition to the three readings, the legislative process usually provides for the referral of the bill by the legislature to a committee of its members for consideration. It also provides opportunities for the bill to be amended before it receives all three readings.

4 Following that, the legislative process at the Parliament of Canada is briefly described, with an emphasis on the aspects in which it differs from the Nova Scotia practice.5

1 See e.g., Nova Scotia, House of Assembly, Rules and Forms of Procedure (1999), Rule 53; Canada, Standing Orders of the House of Commons (2011), S.O. 71.

Having at least a rudimentary knowledge of the legislative process is important for lawyers who want to make use of a statute’s legislative history as an interpretive tool—it allows one to know which stages of the legislative process will feature debate on the general principles of the bill, which stages will feature discussions about specific clauses and amendments to the bill, and which stages are merely formalities that do not assist in understanding the legislative history of the bill.

2 Audrey O’Brien & Marc Bosc, eds., House of Commons Procedure and Practice, 2d ed. (Ottawa: House of Commons, 2009) at 735. An electronic version of the entire text is available online at http://www.parl.gc.ca/ procedure-book-livre/.

3 Constitution Act, 1867, ss. 55 and 90.

4 A more extensive overview of legislative procedures in the Nova Scotia House of Assembly may be found in Arthur G.H. Fordham, The Nova Scotia Legislature: An Overview of Its Procedures and Practices, rev’d ed. (Halifax: House of Assembly, 2006). This text is available online at http://nslegislature.ca/pdfs/proceedings/ NS_Legislative_Procedures.pdf.

5 This topic is dealt with in considerable depth in O’Brien & Bosc, supra note 2, chapter 16.

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A. The Legislative Process at the Nova Scotia House of Assembly

(i) Types of Bills Bills introduced in the House of Assembly fall within one of two broad categories: public bills and private or local bills. The type of bill will determine who introduces the bill and the precise path to be followed by the bill on its way to becoming a statute. The process by which the bill to authorize the expenditure of public money in accordance with the estimates (the Appropriations Act) is passed is slightly different, but this is beyond the scope of this paper.

Public Bills Public bills are bills that enact or amend laws of general application. These bills usually affect the entire province. An example of a public bill would be a bill respecting traffic safety. Where a public bill is initiated by a Minister of the Crown in his or her capacity as Minister, the bill is referred to as a Government bill. Where a public bill is initiated by a private member of the House or a Minister in his or her private capacity, the bill is known as a private member’s public bill, or more concisely, a private member’s bill.

Government bills relate to matters of public interest and reflect the official policy of the Government. For this reason, drafts of Government bills are approved by Cabinet before being introduced in the House. Private members’ bills do not necessarily reflect government policy, even if introduced by a Minister in a private capacity.

Only a Government bill can be a “money bill”, that is to say, only a Government bill may include financial provisions such as the imposition of a tax or the appropriation of public money. In contrast, a private member’s bill cannot contain any financial provisions. If a private member attempts to introduce a private member’s bill and the Speaker concludes that the bill is a money bill, the Speaker must rule the bill out of order.

Private or Local Bills Private and local bills do not enact or amend laws of general application throughout the province. A private bill (not to be confused with a private member’s bill) applies only to an individual or a group of individuals, such as a bill that exempts a person from the application of a particular law or that makes a group of individuals a corporation. A local bill applies within a particular geographical area or to a particular municipality.

Private or local bills may be introduced by members who are not Ministers of the Crown, or by Ministers of the Crown in their capacity as private members. They are usually introduced by a member at the request of the person, group or municipality in the member’s electoral district to which the bill applies. Private and local bills are usually dealt with by the House in a non-partisan manner.

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(ii) Stages of the Legislative Process

Introduction and First Reading Each day that the House sits, the Speaker calls for the introduction of bills as part of the daily routine of the House. At that time, any member wishing to introduce a bill may stand and, after being recognized by the Speaker, beg leave to introduce the bill. The Speaker states that the member “begs leave to introduce a bill entitled …” and then reads the long title on the backer of the bill. The Clerk then assigns a number to the bill and reads out the bill number and the long title of the bill. Finally, the Speaker orders that the bill be read a second time on a future day.6

Unlike what happens during subsequent readings, there is no debate on the bill at first reading and the member introducing the bill is not permitted to comment on the bill’s content; the motion is decided without debate, and the Speaker must order that the bill be read a second time.

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Second Reading

When a bill is called for second reading, the member who introduced the bill moves that it be read for a second time. At this time, the member will usually explain the general purpose and content the bill. Any member may speak in the debate on the motion for second reading, but only on the general principle or principles underlying the bill and not on its details. Each member may speak only once on the motion for second reading, except for the member who moved second reading, who has a right of reply.8

Committee Stage

The bill may not be amended at this stage.

The debate on second reading closes when the member who introduced the bill speaks for a second time. At this time, the motion for second reading is put and voted on. If the motion for second reading is defeated, the bill dies. If it is carried, the Speaker then orders that the bill be referred to a committee of the House.

When a bill has been read a second time, it shall, unless the House orders otherwise, be referred by the Speaker to one of two standing committees of the House: where the bill is a public bill, the Speaker refers the bill to the Law Amendments Committee; where the bill is a private or local bill, the Speaker refers the bill to the Private and Local Bills Committee.9

6 Normally, the first, second and third readings must take place on different days, i.e., only one reading can occur on a given day. However, a bill may go through multiple readings in one day with the unanimous consent of the House.

7 Rules and Forms of Procedure, supra note 1, subrule 44(1).

8 Ibid., subrules 26(1) and (2).

9 Ibid., Rule 46.

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The Law Amendments Committee is composed of the Minister of Justice, who chairs the Committee, and eight other members. It is at the Committee stage of the legislative process that members of the general public have an opportunity to comment directly on the bill. After hearing representations from the public, the Committee considers the bill clause by clause. The Committee cannot amend the bill, although it may recommend amendments to the House.

At the conclusion of its study of the bill, the Law Amendments Committee usually reports the bill back to the House for its favourable consideration, either without amendment or with any amendments the Committee decides to recommend. Where the Committee does not approve of the bill, it can theoretically recommend that the House not give favourable consideration to the bill. In practice, however, the Committee is more likely to simply not report the bill back at all.

The Private and Local Bills Committee operates in a similar manner to the Law Amendments Committee except that the former acts on a less partisan basis than the latter. This is because the Private and Local Bills Committee usually deals with non-political bills that have been requested by an external body.

Reporting Back When called upon to do so by the Speaker during the daily routine of the House, the chair of the Committee that considered the bill may rise in his or her place and report the bill back to the House.10 The bill is attached to the Committee’s report, with any recommended amendments marked on it, and the report is then tabled. Once the report is tabled, the Speaker orders that the bill be referred to the Committee of the Whole House on Bills.11

Committee of the Whole House on Bills

The Committee of the Whole House on Bills meets at the behest of the Government House Leader. When the Government House Leader so desires, he or she moves that the Speaker leave the chair and that the House resolve itself into a Committee of the Whole House on Bills. The Committee of the Whole House is just that, a committee composed of all the members of the House. When the House is resolved into Committee of the Whole, the Speaker leaves the throne and the Committee is chaired by the Chairman of Committees and Deputy Speaker or, in his or her absence, some other member. The Committee then considers the bills referred to it in the order called by the Government House Leader.

The Committee of the Whole House on Bills studies each bill referred to it in detail, just like the Law Amendments Committee and Private and Local Bills Committee. Unlike with those other Committees, a practice has developed whereby the Committee of the Whole House on Bills can debate the general principle or principles of the bill when the first clause is called for discussion. Once the first clause is carried, the remainder of the debate must be restricted to the details of the individual clauses of the bill.

10 Ibid., subrule 47(1).

11 Ibid., subrule 47(2).

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It is at this stage that the amendments recommended by the Law Amendments Committee or Private and Local Bills Committee are dealt with: the Clerk draws the Committee’s attention to any amendments recommended by those standing committees and, if the Committee of the Whole House on Bills carries the clause, the clause is deemed to have been carried with the amendment.12

Debate on any given bill in Committee of the Whole House on Bills is limited to twenty hours.

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The deliberations of the Committee of the Whole House on Bills end when the Government House Leader moves that the Committee rise and report back to the House. When this happens, the Speaker returns to the throne. The bills are then reported back to the House and the Speaker orders that they be read for a third time on a future day.

If the Committee has not completed its deliberations on the bill within that time, the chair must ask, “shall the Bill carry?” The matter must then be put to an immediate vote, with no debate being allowed. If the vote is affirmative, the bill carries.

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Third Reading

Third reading debate is a debate on the motion of the member who introduced the bill, or another member on his or her behalf, that the bill be read a third time.

Third reading debate is a debate on the general principle or principles of the bill, although it tends to be less broad than on the motion for second reading. It is not possible to amend the bill at third reading; a member wishing to do so must move to have the bill recommitted to Committee of the Whole House on Bills. As with second reading debate, each member may speak only once during third reading debate, except that the member who moved third reading has the right of reply.

When the debate on the motion for third reading ends, the question is put. If the motion is defeated, the bill dies. If it carries, the bill is passed. The Clerk of the House then prepares an engrossed bill, that is, a clean copy incorporating any amendments made to the bill and certified by the Speaker and the Clerk to be the bill as passed by the House. It is the engrossed bill that the Lieutenant Governor or the Administrator endorses when giving Royal Assent.

Royal Assent and Effective Date Royal Assent is given by the Lieutenant Governor, or, in his or her absence, by the Administrator of the Province (usually the Chief Justice of Nova Scotia) signing the bill. The Lieutenant Governor or the Administrator usually appears in the House, takes the Speaker’s chair, and publicly assents to the bill in a

12 Ibid., subrule 47(3).

13 Ibid., subrule 57(2).

14 Ibid., Rules 50 and 58.

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ceremony at the end of the sitting. However, this is not always done and, as long as the Lieutenant Governor or the Administrator has signed the bill, the bill becomes a statute.

All statutes come into force upon Royal Assent unless they otherwise provide. A statute may provide that it comes into force upon proclamation, or that it comes into force on a particular day.

B. The Legislative Process at the Parliament of Canada The legislative process at the Parliament of Canada is similar to that of the Nova Scotia House of Assembly. Perhaps the most important difference is that Parliament is bicameral rather than unicameral. This means that once a bill receives three reading in one House of Parliament, it must then receive three readings in the other House before it receives Royal Assent. The usual path a bill takes in becoming a statute is passage first by the House of Common, then by the Senate. However, the Senate, with some restrictions, may also initiate bills. Where the Senate passes a bill that it initiated, the bill must then go to the House of Common for consideration before it can receive Royal Assent.

The place where a bill was initiated is indicated by its bill number. The bill number of a bill initiated in the House of Commons is preceded by a “C-”, e.g., Bill C-14, whereas the bill number of a bill initiated in the Senate is preceded by an “S-”, e.g., Bill S-2.

(i) Types of Bills In the Parliament of Canada, the distinction between public and private bills exists the same as it does in the House of Assembly. There are no local bills in Parliament. Public bills introduced by a Minister are Government bills, while public bills introduced by members of the House who are not Ministers are private members’ bills. Private bills may only be introduced by private members.

(ii) Stages of the Legislative Process As in the Nova Scotia Legislature, bills in Parliament must receive three readings in each chamber before they can receive Royal Assent. These stages are very similar as between the House of Commons and the House of Assembly.15

Committee Stage

It is at the committee and report stages where the greatest differences between the legislative process in the House of Assembly and Parliament are evident.

In Parliament, instead of a bill being referred to one of two committees after second reading, it is referred to one of any number of standing, special or legislative committees. The usual practice is that

15 One difference is that, when introducing a bill in the House of Commons, a member may be permitted to give a succinct explanation of the provisions of the bill: see Standing Orders of the House of Commons, supra note 1, S.O. 68(1).

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the bill is referred to a standing committee the mandate of which covers the Government Department with responsibility for the bill.16

One important difference between the Nova Scotia House of Assembly and the House of Commons is that, in the House of Commons, after a bill receives first reading, a Minister may move to refer the bill to a committee of the House. In giving clause-by-clause consideration to a bill that has been referred to it after first reading, a committee is subject to the same rules and procedures as apply to the committee stage that occurs after second reading. However, because the House has not yet approved the bill in principle by giving it second reading, the scope of the amendments that may be made to the bill is much wider. After clause-by-clause consideration of the bill is completed, the bill is referred back to the House in a manner similar to that which occurs after the usual committee stage after second reading. However, the report stage for such a bill becomes an integral part of the second reading stage, meaning that when and if the bill is concurred in at the end of the report stage, it is also given second reading. It may then proceed to third reading as soon as the next sitting day.

Unlike at the House of Assembly, a committee of the House of Commons (or Senate) does not report a bill back with a recommendation that the House (or Senate) do or do not give the bill favourable consideration. It simply reports the bill back, with or without amendments.

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Reporting Back

The report stage in the House of Commons effectively combines the report and Committee of the Whole House on Bills stages of the House of Assembly. The report stage of a bill in the House of Commons takes place several sitting days after the presentation of the committee’s report. At the report stage, members can present amendments to the bill. To prevent the report stage from becoming a repetition of committee stage, the Speaker is authorized to select and group amendments for debate. The Speaker will not normally select any amendment that was considered in committee, or amendments that were ruled inadmissible in committee.

After the House has voted on any amendments proposed at the report stage, the House votes on whether the bill, with any amendments arising from either or both of the committee stage and the report stage, shall be concurred in. If the vote carries, the bill proceeds to third reading, either on the same sitting day (if no amendments had been proposed at the report stage) or on the next sitting day (if amendments had been proposed).18

16 O’Brien & Bosc, supra note

2 at 744 (note 180) and 756 (note 268).

17 See generally Standing Orders of the House of Commons, supra note 1, S.O. 76.

18 See generally ibid., S.O. 76.1.

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Senate Consideration After receiving three readings in the House of Commons, a bill must still receive three readings from the Senate before it can receive Royal Assent. Where the Senate adopts a bill without amendment, a message is sent to the House informing that the bill has been passed. Where the Senate amends a bill, it informs the House of the amendments in the message it sends back to the House, along with the bill. Messages received from the Senate are printed in the Journals of the House of Commons.19

Once received, the Senate’s amendments are brought before the House for consideration. Where the House agrees to the Senate’s amendments, it sends a message to that effect and returns the bill to the Senate to await Royal Assent. Where the House amends or rejects Senate amendments, it advises the Senate of same by message. The Senate may then decide to accept the decision of the House, to reject that decision outright, or to amend what the House has proposed. Regardless of what the Senate decides, it sends another message to the House to inform it of the decision. The process of communication between the two chambers continues in this manner until agreement is reached on the text of the bill. Where agreement cannot be reached, the chamber in possession of the bill may request that a conference be held. However, this practice appears to have fallen into disuse, as no conference has been held since 1947.

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Because most Government bills originate in the House of Commons, the Senate has developed a procedure, known as “pre-study”, which allows the subject matter of any bill that has been introduced in the House of Commons, but not read the first time in the Senate, to be referred to a standing committee of the Senate for study.

21 By doing so, the Senate can give extensive consideration to the bill before it even reaches the Senate chamber for first reading, and can thereby be in a position to expedite the passage of the bill.22

III. Anatomy of an Act

A statute is made up of a number of elements, the most important of which are the Sections and subsections, clauses and subclauses, and paragraphs and subparagraphs that contain the substantive content of the Act. These are the “meat and potatoes” of the Act, and it is the wording of these provisions, and their interaction with one another that dictates the legal consequences of the actions that the provisions govern. However, in addition to the Sections of the Act, a statute will include other

19 O’Brien & Bosc, supra note 2 at 791.

20 Ibid. at 793 – 794.

21 Rules of the Senate of Canada (2010), subrule 74(1).

22 O’Brien & Bosc, supra note 2 at 790.

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elements such as titles—both long and short, a preamble, enacting words, marginal notes, et cetera. The basic components of a statute are described below.

A. Long Title The long title sets out the object and scope of the Act. In the United Kingdom, the first statutes enacted by Parliament did not have titles. Even once Acts began to receive titles, the bestowal of the title often occurred as an editorial addition after the statute had been enacted. Therefore, the long title was long held by courts not to be a part of the statute, and was thus of no use in interpreting the Act.

Nowadays, every bill introduced before Parliament or the House of Assembly has a long title.23 During clause-by-clause consideration of a bill, the long title is carried last, after all of the other clauses have been carried, so it undoubtedly forms part of the statute when enacted.24

Parliamentary procedure requires that the content of a bill must be accurately reflected in its long title. Therefore, courts have made use of the long title as a means of interpreting the purpose and scope of a statute. For example, in R. v. Sheffield Mills Poultry Company,

25 Chipman J.A. used the long title of the Natural Products Act to discern the Act’s purpose. In Henry v. Workers’ Compensation Board,26 Wakeling J.A. held in dissent that the long title of the Saskatchewan Workers’ Compensation Act—An Act to provide for Compensation to Workers for Injuries Sustained in the Course of their Employment—could be relied on to conclude that the death benefits provided for by the Act were not payable in respect of a suicide.27

While the long title may assist in the interpretation of the purpose and scope of a statute, it cannot be used to enlarge or diminish the scope of a provision of the statute that has a clear and unambiguous meaning.

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23 Some provinces have done away with long titles, and include only a short title to the Act.

As stated by Pierre-André Côté,

24 Rules and Forms of Procedure, supra note 1, Rule 57; Standing Orders of the House of Commons, supra note 1, S.O. 75; see also Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 376 [Sullivan, 5th ed.].

25 2003 NSCA 19 at para. 2.

26 (1999), 177 Sask.R. 35 (C.A.) at para. 95.

27 Bayda C.J.S. (Lane J.A. concurring) held that the Act created an irrebuttable presumption that when a worker is found dead at his or her place of work, the death is a result of an injury arising out of and in the course of the worker’s employment. Accordingly, the majority decision did not examine whether the death was a suicide, and whether a suicide came within the scope of the provisions regarding the payment of death benefits.

28 Schiell v. Morrison, [1930] 4 D.L.R. 664 at 668 (Sask. C.A.); Temelini v. Ontario Provincial Police (Commissioner) (1999), 44 O.R. (3d) 609 at 619 (C.A.).

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the title’s weight will vary according to circumstances. If a statute’s text is clear and precise, the title’s general terms will not be granted much weight. If, on the other hand, the text is ambiguous or imprecise, the title takes on more importance.29

B. Short Title

Almost all self-contained Acts,30

Short titles are sometimes given to amending bills as a handy way of referring to a package of amendments. Increasingly, short titles are being used for political purposes. Some short titles are meant to sell the Act to the public: e.g., the Ideas for the Future Act, 2008;

and increasingly, many amending Acts, are given a short title. In both Nova Scotia and Canada, the short title, if there is one, is contained in the first Section of the Act. Being contained in an actual clause of the bill, the short title, once the bill becomes an Act, is an operative part of the statute. The purpose of the short title is to permit the statute to be cited consistently and concisely. The short title often describes the Act in pithy terms, such as the Police Act or the Municipal Government Act.

31 the Strengthening Business through a Simpler Tax System Act, 2007;32 and the Job Growth and Tax Reduction Act, 1997.33 Others honour persons who were the impetus for the legislation: e.g., Christopher’s Law (Sex Offender Registry), 200034 and Sabrina’s Law, 2005.35

Like the long title, the short title may be used in interpreting a statute, but its weight “should be confined to what is warranted in the circumstances.”

36 Because in a short title “accuracy may be sacrificed to brevity”,37

29 Pierre-André Côté, The Interpretation of Legislation in Canada, 3d ed. (Toronto: Carswell, 2000) at 56.

30 Curiously, the statute commonly known as the “Clarity Act”, S.C. 2000, c. 26, has no formal short title. The Act is composed of three sections, none of which enact a short title. Its long title is An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

31 S.O. 2008, c. 24.

32 S.O. 2007, c. 11.

33 S.O. 1997, c. 10.

34 S.O. 2000, c. 1.

35 S.O. 2005, c. 7

caution must be utilized. The long and short titles will not always convey the

36 Côté, supra note 29 at 57.

37 Re Boaler, [1915] 1 K.B. 21 at 40-41 (C.A.), per Lord Scrutton.

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same meaning, and where this occurs, it is the long title that should be preferred as an interpretive aid.38

C. Preamble

The preamble is an optional component of a statute. Indeed, most Acts do not contain a preamble. The preamble to an Act, if it exists at all, comes after the long title of the Act and before the enacting words and first Section. Like the long title, the preamble is a part of the Act, and must be carried at the committee stage of the legislative process.39 The preamble has been described as being “in the nature of a recital of the facts operative on the mind of the law giver in proceeding to enact.”40

Both the Nova Scotia and federal Interpretation Acts provide that a preamble must be read as “part of” the enactment to which it belongs, to assist in explaining the enactment’s “purport and object”.

41

A preamble may be used to elucidate the legislative purpose of a statute, as was done in Nova Scotia (Attorney General) v. Walsh,

42 where both the majority43 and the dissenting decisions44

When dealing with a constitutional document, a preamble can even become a source of substantive rights by filling in gaps in the legislative regime. In Reference re Remuneration of Judges of the Provincial Court (P.E.I.),

made reference to the preamble to the Matrimonial Property Act in determining that the purpose of that statute was to acknowledge the contribution made by both spouses to a marriage by providing for the redistribution of wealth upon the termination of the marriage.

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But the preamble does have important legal effects. Under normal circumstances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language: Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 261. The preamble to the Constitution Act, 1867, certainly

Lamer C.J.C. relied on the preamble to the Constitution Act, 1867 to flesh out the gaps in the Constitution of Canada (at paragraph 95):

38 Ibid.; Donald J. Gifford, Kenneth H. Gifford & Michael I. Jeffrey, How to Understand Statutes and By-Laws (Toronto: Carswell, 1996) at 32.

39 Fordham, supra note 4 at 26; O’Brien & Bosc, supra note 2 at 761.

40 Gifford, Gifford & Jeffrey, supra note 38 at 37.

41 Interpretation Act, R.S.N.S. 1989, c. 235, s. 11(1); Interpretation Act, R.S.C. 1985, c. I-21, s. 13.

42 [2002] 4 S.C.R. 325.

43 Ibid., at para. 45.

44 Ibid., at para. 180.

45 [1997] 3 S.C.R. 3.

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operates in this fashion. However, in my view, it goes even further. In the words of Rand J., the preamble articulates “the political theory which the Act embodies”: Switzman, supra, at p. 306. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.46

Preambles can also be a source of legislative values. These values can inform the exercise of discretion under a statute.

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D. Enacting Words

Each statute enacted by the Legislature of Nova Scotia contains the enacting words, “Be it enacted by the Governor and Assembly as follows”. These words, known as the enacting clause, follow the long title and preamble, if any, of an Act but precede the first Section.48 Statutes made by Parliament contain a similar enacting clause that refers to Parliament’s constituent parts: “Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows”.49

The enacting words do not affect the meaning of the Act in any way.

The enacting clause indicates the authority by virtue of which a statute is passed. Enacting clauses appear only in the statutes as passed by the Legislature or Parliament; they are not present in the revised statutes published as a part of the statute revision process.

50

E. Headings and Parts

Both the federal and Nova Scotia Interpretation Acts are silent as to the interpretive force of Headings and Parts in statutes.51

46 Lamer C.J.C. ultimately relied on the preamble to the Constitution Act, 1867, which provided that Canada should have “a Constitution similar in Principle to that of the United Kingdom”, as recognizing and affirming the existence of the unwritten principle of judicial independence—a principle that Lamer C.J.C. traced back to the Act of Settlement, 1700 (U.K.) 12 & 13 Will. III, c. 2.

In contrast, the Interpretation Acts of other jurisdictions, or their equivalents,

47 Sullivan, 5th ed., supra note 24 at 384; Côté, supra note 29 at 60 (note 63).

48 Interpretation Act (Nova Scotia), s. 2.

49 Interpretation Act (Canada), s. 4.

50 Gifford, Gifford & Jeffrey, supra note 38 at 27.

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such as the Ontario Legislation Act, 2006, may expressly provide that Headings are “inserted in an Act … for convenience of reference only and do not form part of it.”52

Courts today tend to favour the view that Headings and Parts are part of a statute and should be relied on when construing the statute.

53 This is so even in jurisdictions where the Interpretation Act expressly provides that Headings are not part of the statute.54

The principles related to the use of Headings and Part are sometimes traced back to the concurring opinion of Kellock J. in Attorney General (Canada) v. Jackson,

55

In R. v. Skoke-Graham,

where his Lordship held:

Where the language of a section is ambiguous, the title and the headings of the statute in which it is found may be resorted to to restrain or extend its meaning as best suits the intention of the statute, but neither the title nor the headings may be used to control the meaning of enacting words in themselves clear and unambiguous.

Headings and Parts help provide structure for a statute; they group together related provisions and provide a visual clue as to the content of what follows. By grouping provisions together as a Part of an Act, it is possible for a legislative drafter to create definitions applicable to the Part, or provide that the contravention of any Section in that Part is an offence, and to provide a specific penalty for such contraventions that may be more or less severe than the penalty for contravening Sections of the Act outside of that Part.

56 Dickson C.J.C. considered the scope of subsection 172(3) of the Criminal Code,57

51 Sullivan, 5th ed., supra note

which makes it an offence to wilfully do anything that disturbs the order or solemnity of an assemblage of persons meeting for religious worship or for a moral, social or benevolent purpose. The provision was one of a number grouped together under the Heading, “Disorderly Conduct”. Dickson C.J.C. relied on

24 at 392 cites the Nova Scotia Interpretation Act as stating (at Section 12) that headings do not form part of the enactment in which they are found. However, the reference in Section 12 is to “headers”, which are the notes that appear directly above each Section in the annual statutes and looseleaf consolidation in place of a marginal note.

52 S.O. 2006, c. 21, Sched. F, s. 70.

53 Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 376 – 77; Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106 at 119 – 20; R. v. Lohnes, [1992] 1 S.C.R. 167 at 179; R. v. Davis, [1999] 3 S.C.R. 759 at paras. 51 – 53.

54 See African Lion Safari and Game Farm Ltd. v. Ontario (Minister of Natural Resources) (1987), 19 O.A.C. 205 at paras. 27 – 28 (C.A.)

55 [1946] S.C.R. 489 at 495 – 96.

56 [1985] 1 S.C.R. 106.

57 Now subsection 176(3).

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this Heading in interpreting the word “disturb”, holding that that Parliament intended only to proscribe conduct which is either disorderly in itself or productive of disorder. It was not sufficient that the actions upon which the charge was based disturbed others by causing annoyance, anxiety or emotional upset.

As with other intrinsic aids, the weight to be according to a Heading or Part depends on the circumstances. Where the Heading or Part does not bear any meaningful relation to the Section being adjudicated, the weight to be given to the language of the Heading or Part will be minimal.

F. Marginal Notes and Headers Marginal notes are short notations appearing beside each Section or subsection (as in Acts of Parliament). Headers appear directly above a Section (as in Acts of Nova Scotia) or subsection (as in Acts of Ontario). A marginal note or header provides a terse indication of the matter or matters dealt with by a Section or subsection,58 and are used primarily as “finders’ aids”.59

The federal and provincial Interpretation Acts provide that marginal notes and headers in an enactment form no part of the enactment.

60 Generally, Courts have resisted using marginal notes and headers in interpreting statutes. Nonetheless, there are a number of instances where courts, including the Supreme Court of Canada, have relied on marginal notes and headers to guide their interpretation of legislation.61

Even when though courts have sometimes relied on marginal notes as interpretive aids, they are typically accorded little weight. LeBel J. once opined that “[a]lthough marginal notes are not entirely

When dealing with a federal Act, it is arguable that marginal notes should be available for use as intrinsic aids in interpreting statutes, the same as Headings. When a bill is introduced in the House of Commons or the Senate, it will include Headings and Parts (if any) and marginal notes. In Ontario, proposed amendments to a bill at the committee stage of the legislative process will include text of headers for the new Sections and subsections being added. In contrast, no headers appear on bills introduced in the Nova Scotia House of Assembly. In Nova Scotia, headers are added by Legislative Counsel only after the bill has received Royal Assent. Thus, it cannot be said that the headers appearing above the Sections of Nova Scotia Acts have been before the House of Assembly. This suggests that the headers appearing in Nova Scotia statutes (and in other jurisdictions where headers or marginal notes are added only after enactment) should be given even less weight, if any, as an interpretive tool.

58 Gifford, Gifford & Jeffrey, supra note 38 at 59.

59 Sullivan, 5th ed., supra note 24 at 397.

60 E.g., Interpretation Act (Canada), s. 14; Interpretation Act (Nova Scotia), s. 12; Legislation Act, 2006 (Ontario), s. 70.

61 Francis v. Baker, [1999] 3 S.C.R. 250 at para. 42; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 36.

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devoid of usefulness, their value is limited for a court that must address a serious problem of statutory interpretation.”62 Sullivan has suggested that the function of marginal notes and headers as finders’ aids may compromise their usefulness as tools for discerning legislative intent, as they are drafted “to facilitate efficient and easy movement through the legislation, not deep or full understanding”.63

G. Punctuation

The punctuation of an Act is part of the Act and should be considered when interpreting the Act’s provisions.

In the past, there were a great many decisions emanating out of the Courts of the United Kingdom that stated that punctuation forms no part of an enactment. This was because of a misapprehension that, in the years prior to 1850, when Acts of Parliament were engrossed on the Parliament Roll, the Acts were engrossed without any punctuation. Thus, the punctuation found in printed versions of the Acts were added by publishers. Alas, this turns out to not be true. Although there were often discrepancies between the punctuation in the engrossed Acts on the Parliament Role and the Acts as printed, the English statutes were indeed punctuated going back to the earliest times.64

[p]unctuation cannot render a single interpretation so certainly correct as to obviate the need to refer to the entire enactment in the interpretation of one of its provisions but it is certainly to be considered.

Punctuation can be of great assistance in resolving confusion caused by syntactic ambiguity. That said, Mahoney J. expressed the view that

65

Many of the conventions governing punctuation, especially comma placement, are fluid and evolving, and often vary as between locales. Also, considerable discretion is left to each individual author to vary punctuation as a matter of style. For these reasons, the courts must be cautious of placing too much significance on a single punctuation mark. Where the purpose and context of an enactment run contrary to a meaning suggested by the placement of a particular punctuation mark, it is the former that will more likely than not prevail.

66

62 Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447 at para. 57 [“Imperial Oil”].

63 Sullivan, 5th ed., supra note 24 at 400.

64 See F.A.R. Bennion, Statutory Interpretation (London: Butterworths, 1984) at 594 – 595 (§ 284).

65 Cardinal v. The Queen, [1980] 1 F.C. 149 (T.D.), aff’d [1980] 2 F.C. 400, aff’d [1982] 1 S.C.R. 508.

66 See e.g., Smart Hardware Co. v. Melford (Town) (1917), 32 D.L.R. 552 (Sask. C.A.); Re Winding-Up Act and Gibson Mining, [1923] 3 D.L.R. 1052 (B.C.C.A.).

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H. Schedules Materials included in a schedule to an Act are intrinsic to the Act and may be relied upon when interpreting the Act. Sullivan classifies materials included in schedules as falling within one of the three categories set out below.

(i) Materials in a Schedule Incorporated into the Enactment The material contained in the schedule is part of the enactment and has the same force as the rest of the enactment if the enactment, either explicitly or by necessary intendment, indicates that the schedule constitutes an integral part of the statute itself.67 Where a schedule has been incorporated into the statute in which it is found, it has the same force of law as the Sections of the text, and any conflict between it and a Section of the Act must be resolved the same as a conflict between two Sections.68

(ii) Materials in a Schedule not Incorporated but Validated

Where a statute confirms the validity of an instrument such as a treaty, by-law or contract, the instrument is often set out as a schedule to the Act. Under these circumstances, the instrument set out in the schedule is validated, but does not have the force of a statute. However, the instrument retains its original character. Thus, for example, a municipal by-law validated by an Act of the Legislature will have force as a by-law but, unless incorporated into the validating statute, remains susceptible to amendment or repeal by the municipal council that originally passed it.

An instrument contained in a schedule that is not incorporated may still be used to interpret the statute, provided that the schedule does not conflict with the provisions of the Act. Where a conflict exists, the text of the provisions of the Act will prevail over the text of the schedule.69

(iii) Materials in a Schedule Included for Convenience Only

Materials set out in a schedule to an Act that are neither incorporated into the Act nor validated by the Act have the same legal effect as if they were not included in the Act at all. However, as

67 British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41.

68 See e.g., Inland Revenue Commissioners v. Gittus, [1920] 1 K.B. 563 at 579 (C.A.), aff’d [1921] 2 A.C. 81 (H.L.).

69 See e.g., Chamberlain v. Carson (1973), 8 N.B.R. (2d) 514 at para. 10 (Q.B.), an instance of an apparent conflict between a provision of the Children of Unmarried Parents Act, R.S.N.B. 1952, c. 108 and Form F, set out in a schedule to the Act.

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with materials in a schedule to an Act that are validated by, but not incorporated into, the Act, the materials in the schedule may nonetheless be used to interpret the Act.70

IV. How to Approach a Question of Statutory Interpretation

In this section of the paper, the focus is on providing guidance on how to develop and present a statutory interpretation argument. This approach is different from a straightforward review of the rules of statutory interpretation. More comprehensive texts are available to assist counsel who need reference to specific points in that regard. Nonetheless, in providing suggestions on how to develop a statutory interpretation argument, the key points of statutory interpretation will be presented and it is intended that this paper also provide a helpful review of such matters. The preceding discussion explaining the legislative process and components of a statute will also obviously be of great assistance to counsel in this respect.

Re Rizzo & Rizzo Shoes Ltd. is the leading case on statutory interpretation in Canada.71

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.

In Rizzo, the Supreme Court of Canada adopted “Driedger’s modern principle” of interpretation:

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However one approaches the task of interpreting legislation, ultimately three points will have to be addressed: (1) the actual text of the legislation, i.e. its meaning; (2) the intention of the legislature in enacting the text, i.e. its purpose; and (3) the outcome of any potential interpretation, i.e. its consequences. These points will be addressed in the sixth step of the suggested guideline below. Notwithstanding the proposed steps, it needs to be acknowledged that there is no “one size fits all” approach to statutory interpretation. Depending on the nature of the issue before the court and the ambiguity in the legislation, counsel will need to delve deeper into some areas than others.

This is a holistic approach that dispels any pretence to statutory interpretation being some sort of clinical exercise focussed solely on the specific legislative text in issue. The implication for the legislative interpreter is the need to engage in a variety of different approaches to the interpretive task and provide appropriate supporting material for each of those methods. This paper is intended to assist in that regard.

70 See e.g., Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al., [1968] S.C.R. 676, where Pigeon J. relied on an Article of the Rome Convention, set out in a schedule to the Copyright Act, R.S.C. 1952, c. 55, to interpret a provision of that Act.

71 [1998] 1 S.C.R. 27 [“Rizzo”].

72 Elmer Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at p. 67.

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At all times, counsel ought to have one or both of the leading Canadian texts on statutory interpretation by their side. They are Sullivan on the Constructions of Statutes by Ruth Sullivan, and The Interpretation of Legislation in Canada by Pierre-Andre Côté, Stéphane Beaulac and Mathieu Devinat.73

A. Some Preliminary Observations

Of the two, Sullivan’s text (as the successor to Driedger on the Construction of Statutes) had been the more up-to-date until recently and probably the most commonly referred to, with Côté’s text equally as authoritative but often used to provide further explanation or clarification when desired. Counsel who choose to rely primarily on Sullivan’s text but who do not quite find what they are looking for in respect of a particular matter are well-advised to canvass Côté et al.’s text on the same point.

With this introduction, it is now time to move to the task of confronting a statutory interpretation problem.

(i) Fact, Not Abstract Notwithstanding the fact that we interpret legislation whenever we read it, we are not generally concerned with legislation that is clear in meaning and application to certain facts. In such routine situations where (in interpretive terms) the “ordinary meaning” of the legislation is so clear and there is no reason to doubt it, counsel will undoubtedly advise their clients of the probable effect of the law on the situation at hand and decisions will be made accordingly. Happily, such straightforward situations are the norm, which is not at all surprising because it is these most common and anticipated situations that the legislature no doubt sought to address at the time the legislation was passed—presumably with the capable assistance of competent legislative drafters. When we become interested in questions of statutory interpretation, it is because the desired clarity is more elusive.

At a practical level, therefore, we are not concerned with the meaning of legislative words in any abstract sense. Rather, our concern is with how those words apply in relation to a particular situation or set of facts, and how they affect people’s—our clients’—rights and responsibilities. The importance of the pre-existing factual context counsel brings to the statutory interpretation exercise cannot be overstated. Counsel will no doubt desire a particular outcome in respect of the matter in issue, and their role will be to persuade the court or other adjudicative body that their proposed interpretation—and the resulting outcome in the case before it—is the appropriate one.

73 Ruth Sullivan, 5th ed., supra note 24. A new edition of Côté—Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Cowansville, PQ: Éditions Yvon Blais, 2011)—has just recently been published. Sullivan also authors a volume in the “Essentials of Canadian Law” series—Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007) [Sullivan, Statutory Interpretation]—but the more comprehensive text should be used whenever possible.

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(ii) Cases Afar, Not Just Cases at Bar Although counsel will of course be concerned with the outcome in the particular case at bar, the court will be equally if not more concerned with the effect of the proposed interpretation on future matters. To be effective, therefore, counsel must not only persuade the court of the propriety of the result in the case at bar but also alleviate any other potential concerns. Sometimes this may be achieved by more finely nuancing or limiting the proposed interpretation. Of course, it is not possible to anticipate the myriad situations that may arise in the future requiring further refinement to the interpretation of a particular provision, but a carefully and narrowly crafted interpretation will best allow such future refinement if necessary.

(iii) “Tools”, Not “Rules” It is also important to understand that there are no “rules” per se of statutory interpretation, in the sense that failure to apply or abide by any particular “rule” is an error of law. The error—if there is one—at the end of the day will be in the interpretation (or meaning) given to the legislation, and not in the process followed to get there.74

Therefore, while there are a number of approaches and tools engaged to interpret a statute, ultimately these steps are not ends in themselves but rather means to an end. As the House of Lords has explained:

Having said that, it must readily be acknowledged that a different application of statutory interpretation principles or techniques may well be relied upon to explain and justify a different interpretation and resulting outcome.

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It should also be noted that there is no universal way to classify or order these various approaches and tools to statutory interpretation. However, there are some accepted categorizations, and counsel should adopt the terminology used in either of the two leading Canadian texts.

They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one “rule” points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular “rule”.

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(iv) Show You’re Right, then Show the Light

Finally, counsel should have two overarching aims in any argument in statutory interpretation: (1) to show that their proposed interpretation of a statute is “right”; and (2) to show the court how to obtain that result within the acceptable parameters of interpretation. 74 Sullivan, Statutory Interpretation, ibid. at 30.

75 Maunsell v. Olins, [1975] A.C. 373 at 382 (H.L.), per Lord Reid.

76 Sullivan, 5th ed., supra note 24, and Côté, supra, note 29.

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First, as with most courtroom advocacy, counsel will do well to show the court why the interpretation they propose—including the outcome on the facts of the case—is the most desirable result compared to other possible interpretations. At its highest level, in the parlance of statutory interpretation we speak of discerning “the intention of the legislature”. However, not to be overlooked is the desire of the court to “do the right thing”. In his seminal article from 1938, Willis expressed this perhaps somewhat cynically by cautioning counsel they will never know which approach to interpretation the court will favour in any particular case as ultimately:77

Sixty-five years later, in her review and update of Willis’ article, Sullivan suggested a similar judicial concern with the justness of a case when she wrote:

A court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it.

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Secondly, whatever result is considered desirable, the court must be able to reach it within the reasonable parameters of statutory interpretation. Failure to do so will lead to the same error recently recognized by the Supreme Court of Canada in Mowat where the Canadian Human Rights Tribunal “articulated what it considered to be a beneficial policy outcome rather than engage in an interpretive process taking account of the text, context and purpose of the provisions in issue” leading it “to adopt an unreasonable interpretation of the provisions” in issue.

The rules operate as a checklist of relevant considerations. They suggest different lines of inquiry to ensure that no possibility has been overlooked. They are relied upon by counsel in developing arguments and by judges to justify outcomes in interpretation disputes.

At the end of the day, therefore, satisfying a court that the proposed interpretation will best satisfy its sense of justness will go a long way to advancing counsel’s case.

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B. Seven Steps to Statutory Interpretation

Counsel must not only persuade the court of the most desirable outcome, therefore, but also chart an acceptable path to get there.

With the above background in mind, it is time to turn more concretely to the task of statutory interpretation. What follows is a suggested guideline on how to complete that task in a systematic manner. The steps outlined below assume counsel are dealing with a specific matter with an end goal of arguing for a specific interpretation before the court. However, most of the suggestions are equally applicable to counsel not engaged in so formal a process but who nonetheless need to work through an interpretive problem. Further, while some of the points may seem self-evident and applicable to all legal problems, at times counsel can lose their bearing in unfamiliar territory and therefore it may be best to

77 John Willis, “Statute Interpretation in a Nutshell”, (1938) 16 Canadian Bar Review 1 at 16.

78 Ruth Sullivan, “Statutory Interpretations in a New Nutshell”, (2003) 82 Canadian Bar Review 51 at 55.

79 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 64 [“Mowat”].

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cover even the basic steps. Finally, the starting point is presumed to be a situation where an interpretive problem has already identified in the case—otherwise there would not be a need to undertake the below analysis.

Step 1: Isolate and write out the issue. As with any legal question, it is imperative to clearly and succinctly state the issue at hand. When dealing with questions of interpretation, a particular complication is grafted onto the matter—the interpreter is seeking to solve a question that pertains to the use of words through the use of other words. The potential for circularity is obvious. Therefore, in embarking upon this exercise, it is important to clearly articulate the issue in writing. In the short term, this will assist in the review of case law or other material and its potential relevance to the matter at hand. In the longer term, as the interpreter’s knowledge of the terms and concepts at play increases, this will assist in more precisely refining or narrowing the issue. When at the point of presenting legal argument, having a precisely and narrowly defined issue will serve counsel well. This essential task is best performed by taking the time to concretely state the issue at the outset and continuing to tailor and refine it as necessary.

Step 2: Check to see if the provision in issue has already been interpreted in a manner that answers the question in the case.

It is entirely possible, of course, that a court may already have considered and interpreted the provision in issue. In some cases, the facts or issue may be fully on point with the matter facing counsel. In other cases, the interpretation may at least have offered some judicial refinement to the relevant statutory provision. Counsel should therefore conduct their regular check of case law to see whether the matter has been authoritatively or persuasively dealt with already. Among the sources available to assist with this task are:

Annotated Acts—check law library catalogues and legal publisher websites to see whether there is an annotated copy of the legislation in issue;

Canadian Statute Citations volumes of The Canadian Abridgement (formerly Statutes Judicially Considered; Carswell; also available online through LawSource on Westlaw);

The Canadian Abridgement: Words and Phrases Judicially Defined in Canadian Courts and Tribunals (Carswell; also available online through LawSource on Westlaw);

Sanagan’s Encyclopaedia of Words and Phrases, Legal Maxims (Carswell);

Canadian Legal Words & Phrases (QuickLaw);

Canadian Encyclopedic Digest(Carswell; also available online through LawSource on Westlaw); and

Westlaw, Quicklaw and CanLII (various techniques to search for cases considering words and statutes).

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In undertaking this exercise, complementary or parallel legislation from other Canadian jurisdictions (federal or provincial) should not be overlooked. Not only is complementary legislation a valid source of comparison for the legislative interpreter given that similar policy objectives are often sought to be achieved by different Canadian jurisdictions,80

Step 3: Articulate precisely and write down the meaning you propose be given to the legislative provision issue.

but cases decided under similar provisions from other jurisdictions may also contain a useful statutory interpretation analysis and references to cases on point from various jurisdictions. In addition, larger jurisdictions may have commercially annotated acts available for some statutes that smaller provinces do not, and these annotated acts may even contain case law from the jurisdiction of interest.

Ultimately, if case law is on point and binding, there may not be much further interpretation required.

Assuming there is no quick and easy answer, counsel must now continue on in the process of constructing an appropriate interpretation of the provision in question.

It will be helpful for counsel to articulate their proposed interpretation at the outset in order to establish a base point that can be modified as necessary as they work through the stages of statutory interpretation. As one proceeds through the interpretation of a statute—for example, reading the statute or reviewing legislative history—having first articulated a proposed interpretation in writing will help ensure counsel does not overlook phrases, provisions or other material that may support or detract from their argument. The proposed interpretation will be refined throughout this process, but because precision with words is very important in statutory interpretation, it is often useful to craft and then refine a proposed interpretation from the beginning when possible, recognizing the limited knowledge counsel may have about the matter at the beginning of their analysis.

Although it will vary in degree from case to case, the exercise at this point is quite often different from simply stating the issue as was done in step 1. The issue in any particular case is likely to be narrow, but to resolve it a broader principle may have to be stated that underpins the interpretation. This statement essentially explains “why” the issue is resolved a certain way in a specific case. And because courts are concerned with the effect of the interpretation on yet unknown cases, this underlying principle will be of the utmost importance in such cases. For example, in Morrison Estate the narrow issue was whether the “benefit of the doubt” provision found in s. 187 of the Nova Scotia Workers’ Compensation Act was incorporated into s. 4 of the federal Government Employee’s Compensation Act. However, the resulting

80 Sullivan, 5th ed., supra note 24 at 419ff.

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interpretation of s. 4 formulated by the court was much more complex.81

Step 4: Read the legislation.

Of course, a court will be loath to determine more than is necessary to decide the case before it, and the issue may be so specific that it will be unnecessary to get into larger statements of principle. Nonetheless, quite often the court—and counsel—will have to do so.

Ultimately, counsel will be putting the proposed interpretation before the court. Because the court will itself be concerned with articulating an interpretation of the provision in issue, it will be both helpful and good advocacy to present the court with the proposed interpretation at the outset of the argument. This will allow the court to apply its analysis and test counsel’s interpretation as it proceeds through its own process of statutory interpretation, just as counsel will have done in developing the proposed interpretation. And because it is usually easier to work from an existing text than it is to create something from scratch, the court will appreciate counsel’s effort in venturing this first offering, which also gives counsel the added benefit of having framed the issue and argument to follow.

Although reading the legislation would seem to be an obvious first step, admittedly it can be a tedious exercise. As noted by Sullivan, by convention legislative drafters employ “utilitarian prose” that favours consistency and uniformity while shunning those techniques that usually make for interesting reading.82

Read the entire statute where practical.

As a result, it is not uncommon to find this step omitted by counsel who instead focus their attention on the specific provision in issue or those immediately surrounding it. Such an approach is unfortunate because the reward for persevering is almost always worth the effort, and counsel who have read the statute will often distinguish themselves and make much more informed argument concerning the specific provision in issue. Counsel should therefore be sure to:

83

Pay particular attention to the definitions section, if any. The definitions section of the applicable Interpretation Act may also be relevant and should be reviewed.

84

81 See Cape Breton Development Corporation v. Morrison Estate, 2003 NSCA 103 at para. 68 [“Morrison Estate”] where the Court adopted the interpretation proposed by the Attorney General of Canada that: “The provincial workers’ compensation scheme governs claims submitted under GECA provided that: (a) the provision in issue is reasonably incidental to a “rate” or “condition” governing compensation under the law of the province; and (b) the provision is not otherwise in conflict with GECA.”

82 Sullivan, 5th ed., supra note 24 at 14.

83 This may not be the best use of time or necessary when dealing with such statutes as the Income Tax Act or Criminal Code, among others. Nonetheless, it is not difficult to search electronic versions of lengthy statutes for specific words or phrases and the effort will often prove beneficial.

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Read associated regulations that may shed further insight on the provision in issues.

The goal of counsel in reading the statute should be twofold:

First, to gain an initial understanding of the overall scheme, structure, and purpose of the statute, and how the provision in issue promotes the legislative goal.

An understanding of the bigger picture at the outset and the place of the disputed provision within that picture will help guide the rest of the analysis and better enable counsel to invoke the tools of statutory interpretation to support their argument. A more fulsome “purposive analysis” will usually be undertaken at a later stage, but it is still important to obtain this initial appreciation of the legislation at the outset.

Second, to learn of provisions or language in other parts of the legislation that supports counsel’s interpretation of the provisions in issue, or counters that of their opponent.

For example, the question of whether a presumption contained in one part of the statute applies to a certain group of employees may be influenced by demonstrating that different presumptions found elsewhere in the statute (or even other statutes) will be similarly affected by the interpretation of the provision in issue.85 In other cases provisions within a statute may help determine whether a duty of care exists in tort.86

Step 5: Conduct a formal statutory interpretation analysis.

Counsel will need to read a statute in its entirety in order to discover such potentially helpful provisions.

As noted previously, “Driedger’s modern principle” is the touchstone for statutory interpretation in Canada. At a practical level, Sullivan explains what this means:87

84 Counsel may be surprised to find such terms as “person”, “public officer”, “bank”, and “duly qualified medical practitioner” among others defined in the Nova Scotia Interpretation Act, not only as applicable to that Act but all other provincial enactments: see Interpretation Act (Nova Scotia), s. 7.

The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation.

85 See, for example, Morrison Estate, supra note 81 at para. 48-49.

86 See, for example, Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2011 NSCA 43 at paras. 27-51 [“Cherubini”]. In what was essentially an exercise in statutory interpretation, the Court interpreted Section 78 of the Occupational Health and Safety Act and subsection 5(4) of the Proceedings against the Crown Act as negating a duty of care in tort in that case.

87 Sullivan, 5th ed., supra note 24 at 1.

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Therefore, interpreters cannot choose one aspect of the statutory interpretation process that favours their preferred interpretation and leave the analysis at that. Rather, a more fulsome approach considering such factors as the text of the impugned provision, the purpose of the legislation (which requires a divination of legislative intent) and the consequences of the proposed interpretation must be considered.88

(i) Analyse the Text

The three stages set out below are meant to capture the most significant parts of this process, being the textual, purposive and consequential analyses.

To start with, as we have already done above in looking at definition sections and the other components of a statute, we can begin with the text.

When reviewing the text of a legislative provision, there are several presumptions, “rules”, and techniques that counsel can apply to their analysis. Several of these matters are the subject of whole chapters in their own right in the leading texts on statutory interpretation. It is not possible or useful to repeat all of that material here. Rather, what follows is a synopsis of some of the major principles and arguments available to counsel, and reference ought to be taken to the more comprehensive resources if counsel feels it would be helpful to pursue any of them further in relation to a specific case. And again, it must be noted that none of these “rules” are binding in their own right—they are more in the nature of tools that help support an interpretation based on a more holistic approach that also takes into account legislative purpose and consequences.

Presumptions

Ordinary Meaning

The ordinary meaning is that which comes to mind when a competent user of the language reads the text. This is the starting point in all matters of statutory interpretation and there is a strong presumption in favour of such an interpretation, especially “as opposed to a strained or implausible meaning”.89

Sources to help prove the ordinary meaning of a word include judicial notice, linguistic intuition, and past case law.

The ordinary meaning prevails in the absence of a reason to reject it, but it can be rejected or modified when considerations such as the purpose of the legislation and consequences of the interpretation call for it.

90

88 These were the factors most emphasized by the Nova Scotia Court of Appeal in Thomson v. Nova Scotia (Workers’ Compensation Appeal Tribunal), 2003 NSCA 14, 212 N.S.R. (2d) 81 at para. 16 [“Thomson”].

Although the use of dictionaries has been criticized for misleading the interpreter to focus on a word in isolation or accepting that words have some objective “official” meaning, resort to a

89 Sullivan, 5th ed., supra note 24 at 23.

90 See ibid. at 29-41.

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reputable dictionary (e.g., Oxford English Dictionary or Le Petit Robert) is common, acceptable, and can help ground the interpretation of a word in an appropriate case.91

Technical Meaning

Where legislation involves relatively complex matters and specific audiences, technical meanings of the terms employed may be preferred even when those terms also have different, ordinary meanings. As usual, the question is one of legislative intent. Technical meanings are questions of fact and must normally be established through expert evidence.92

Legal Meanings and Meanings Fixed by Law

Legal meanings are akin to technical meanings. However, because judges and lawyers are familiar with “legal terms of art”, they may be judicially-noticed or proven in more familiar ways.93

Plausible Meaning

Legal meanings can also be defined explicitly, either by such statutes as the various interpretation acts, or within the definitions section (or elsewhere) in a statute. Meanings that are defined by the relevant act or regulation take precedence over ordinary and other meanings.

Ultimately, the interpretation adopted by the court must be one that the words of the text can reasonably bear. While there is tolerance for strained interpretation when it would help avoid an absurdity, an interpretation that stretches the text too far will fail once it crosses the threshold of implausibility.

Bilingual Statutes

When dealing with federal legislation or other officially bilingual jurisdictions, the impugned provisions must be reviewed in both languages. The meaning or parameters of certain terms or phrases will often be more evident in one language than the other. Counsel who do not have a strong grasp of the second language will still find it possible to undertake a basic comparison with the assistance of dictionaries and reliance upon others.

91 See, for example, Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), [2007] 1 F.C.R. 203, 2006 FCA 157 at para. 69 where the Federal Court of Appeal endorsed “[c]ommon sense with the assistance of dictionaries” in interpreting the meaning of “commercial” within the context of section 20(1)(b) of the Access to Information Act, R.S.C. 1985, c. A-1.

92 See Sullivan, 5th ed., supra note 24, chapter 3. See also, for e.g., Fahlman v. Community Living British Columbia, 2007 BCCA 15 at paras. 25ff.

93 See, for example, Mowat, supra note 79 at para. 40.

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Textual Tools

No Tautology

The legislature “does not speak in vain”. The legislature chooses each word carefully—superfluous, repetitive or meaningless words are avoided. Each word has an intended meaning, and meaning must therefore be found for each distinct word.94

Uniform Expression

The legislature knows its legislation and is presumed to use the same words to convey the same meaning and different words to convey different meanings. Counsel should therefore review other provisions of the legislation in issue to determine whether any opportunities for argument exist in this regard.

Implied Exclusion95

“To express one thing is to exclude another.” When one would have expected the legislature to include something explicitly and it did not do so, an inference may be drawn that the matter was excluded on purpose.

Associated Words96

The meaning of potentially broad or ambiguous words can gain character from words surrounding them. Where a series of specific words are enunciated in a provision, look for commonality among them to see if the meaning of any potentially ambiguous term can be restricted by the others. For example, in “removes, conceals or disposes” of property, a positive physical act may be implied by “conceal” as opposed to passive non-disclosure.

97

Limited Class

98

Similar in a way to the associated words maxim, this tool can be used to limit the meaning of a general term to the genus of the preceding words.

94 Ibid. at paras. 37-38.

95 Expressio unius est exclusio alterros.

96 Noscitur a socirs. See Sullivan, 5th ed., supra note 24 at 229ff.

97 See R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.).

98 Ejusdem generis.

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Collocation

The meaning of a potentially broad word may be limited by the use of another term in the same provision that conventionally restricts its meaning. For example, the meaning of “similar institution” in the phrase “an inmate of any prison or similar institution” was seen to be restricted by the historically negative connotation of the term “inmate”.99

Presumed Intentions

The legislature is presumed to have certain intentions when it passes legislation. In cases of ambiguity, interpreters often rely upon these presumptions.

For example, there is a general presumption of compliance whereby the legislature is presumed to have intended that the legislation comply with overarching constitutional and statutory law. When faced with interpretive choices that would either render a provision valid or invalid, the court will choose the interpretation that upholds the validity of the provision in question whenever possible. This presumption is particularly useful when dealing with interpretations involving division of powers between different levels of government and legislative compliance with Charter values, as well as the vires of subordinate legislation in relation to their enabling acts. Furthermore, it is presumed that certain types of statues are intended to be interpreted liberally, while others are subject to strict construction. Some of the more common presumptions are illustrated in the chart below.

Presumed Intention Category of Interpretation

Liberal Construction Human rights, social welfare and other remedial legislation, Aboriginal law

Strict Construction Penal, fiscal,100 interference with private property

Coherence Intra-statute,101 inter-statute

99 See Crupi v. Canada (Employment and Immigration Commission), [1986] 3 F.C. 3 (C.A.). See also Sullivan, 5th ed., supra note 24 at 253ff.

100 Note the discussion of the interpretation of tax legislation at chapter 19 of Sullivan, 5th ed., supra note 24. Although in Stubart Investments Ltd. v. R., [1994] 1 S.C.R. 536, it appeared that the Court had abandoned the approach of strictly interpreting tax legislation, in Imperial Oil, supra note 62, the Court acknowledged that principles of predictability and fairness to taxpayers mandated a strict approach. Therefore, as Sullivan notes, the Court recently “has used literal construction as a proxy for strict construction” in the area of tax legislation (at 534).

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Compliance Constitutional law (including the Charter), the rule of law, international law

Counsel dealing with legislation that pertains to any of the above issues or areas should take reference to the leading texts for authority that may further support their argument in appropriate cases.102

(ii) Analyse the Purpose

The preceding discussion provides a survey of the key presumptions and tools relied upon to analyse the text of a legislative provision when interpreting its meaning in an ambiguous or otherwise problematic situation. While counsel engaged in such an exercise should take reference to Sullivan and/or Côté’s more detailed texts for further explanations and case examples, it is hoped that the foregoing discussion will assist in embarking upon a textual analysis of impugned legislation. Having completed such a textual analysis, one must next turn to an analysis of the legislation’s purpose.

Even when the legislation’s meaning appears clear from the text, the interpreter must go on to consider the context and purpose of the legislation overall. To stop at the text itself would effectively be to follow the “plain meaning rule”, where one only considers the legislation’s purpose and consequences if ambiguity is found in the text of the statute. This approach was rejected in Rizzo, where Driedger’s “modern principle” was adopted by the Supreme Court of Canada.103 As Justice Bastarache later warned in ATCO:104

When considering the legislative purpose, it is sometimes helpful to understand whether the legislation is:

This Court has stated on numerous occasions that the grammatical and ordinary sense of a section is not determinative and does not constitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon initial reading. ... I will therefore proceed to examine the purpose and scheme of the legislation, the legislative intent and the relevant legal norms.

105

101 See, e.g., Shebib v. Canada (Attorney General), 2003 FCA 88 at para. 20ff.

102 See, e.g., Sullivan, 5th ed., supra note 24 at chapters 16-19. Note also, however, the limitations placed on the use of these presumptions in NAV Canada v. Wilmington Trust Co., [2006] 1 S.C.R. 865, 2006 SCC 24 at para. 84.

103 Rizzo, supra note 71.

104 ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140 at para. 48.

105 See Sullivan, 5th ed., supra note 24 at 261-63.

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• Reform legislation—is the legislature trying to cure some shortcoming of the common law? If so, understand the shortcoming that the legislation is meant to cure.

or

• Program legislation—Is the legislature trying to implement some political, economic or social need? If so, understand the policy goal of the legislation.

An understanding of the circumstances that motivated the legislature to pass the legislation in the first place can greatly assist counsel in understanding its purpose, and in knowing where to look to find supporting material in that respect.

The most notable places counsel ought to look for proof of legislative purpose are:

The legislation itself, which may set out its purpose in a preamble or opening sections, or which may even articulate a purpose in the impugned provision itself, either explicitly or implicitly (e.g. a concern with the protection of privacy).106

Case law, which may articulate the common law shortcoming remedied by the legislation or otherwise describe the legislation’s purpose.

Legislative history which shows the evolution of the provision in question, including modifications to past wording from which inferences can be drawn about legislative intent in passing amendments.

Legislative debates from the time when the law was under consideration, particularly ministerial statements (see preceding discussion about the legislative process).

Law Amendments or other Standing Committee debate and records pertaining to the legislation in issue (see preceding discussion about the legislative process).

Regulatory Impact Statements, in the case of federal regulations, which often accompany and explain newly-gazetted regulations.

Law Reform Commission reports or reports of other government commissions that led to the adoption of the legislation in issue.

Academic commentary pertaining to the legislative reform in issue.

Departmental statements and other materials revealing the intent behind the legislation.

Annual reports and other submissions of administrative agencies charged with administering complex program legislation.107

106 See, e.g., R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1470-71.

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For a further discussion on the use of extrinsic aids in this manner, please refer to the more detailed discussion contained in Part V of this paper.

Legislative purpose can be considered both at a macro level—what is the overall intent of the legislation—and also at a more micro level—what is the purpose of the particular provision, or the particular words? The persuasive advocate will advance a comprehensive argument showing the legislative purpose advanced by their proposed interpretation, and use a variety of different sources to prove this purpose. Particularly in this age of computer-assisted research, it can be surprisingly easy to invest a few hours on legislative, law reform, and other legal or government websites and discover much useful material tending to show the purpose of the legislation under review.

Ultimately, it will be necessary to demonstrate to the court that the proposed interpretation is consistent with or best attains the purpose of the legislature in adopting the legislation (and provision) in issue. Counsel ought to do the necessary research and present supporting material to persuade the court that the proposed interpretation achieves this goal.

(iii) Analyse the Consequences As noted earlier, the court does not undertake statutory interpretation exercises in a vacuum but rather in respect of real-life fact situations that affect real individuals and their communities. As a result, courts will be very concerned with the outcomes of their interpretations. It serves counsel well to demonstrate that the proposed interpretation leads to the most just and reasonable result. This stage of the analysis flows logically from the purposive analysis, as once the purpose of the legislation has been established, it is logical and persuasive to show the court how that purpose is satisfied in the case before it through application of the proposed interpretation. Therefore, counsel should relate the actual outcome of the proposed interpretation in the case at bar back to the purpose of the legislation and generally show why the outcome is the most desirable in the circumstances.

Conversely, the absurdity of the consequences can be used to displace the strong presumption that otherwise attaches to the ordinary meaning of unambiguous text. As Sullivan explains:108

107 See, for example, Mowat, supra note

Consequences judged to be contrary to accepted norms of justice or reasonableness are labelled absurd and are presumed to have been unintended. If adopting an interpretation would lead to an absurdity, the courts may reject that interpretation in favour of a plausible alternative that avoids the absurdity.

79, where the Canadian Human Rights Commission’s interpretation of its powers to award legal costs as reflected in its annual reports was relied upon by the Supreme Court (among other things) in arriving at its conclusion on this issue.

108 Sullivan, 5th ed., supra note 24 at 299.

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This raises the question of what qualifies as an “absurdity” and (ironically enough) the legal threshold may not be as high as that which may attach to the term in every day usage. As Sullivan explains further:109

At this stage of the analysis, it is helpful for counsel opposed to a proposed interpretation to put their imagination to work and critically analyse the consequences of the proposed interpretation not just on the case at bar, but also on other possible cases—and the more probable, the better.

Absurd consequences are not limited to logical contradictions or internal incoherence but include violations of established legal norms such as rule of law; they also include violations of widely accepted standards of justice and reasonableness.

110

Step 6: Read the Interpretation Act.

This can lead a court to step away from opening a “Pandora’s Box” of future problems notwithstanding the appeal of the proposed interpretation in the matter before the court.

Contrary to the more general “rules” of statutory interpretation, the Interpretation Act (either provincial or federal) does establish actual laws to be followed when interpreting legislation. For example, legislative direction that the history of the legislation on the subject shall be considered in interpreting an enactment may greatly assist a counsel who seeks to rely on just such an argument.111 So too can provisions directing that enactments “shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.112

Step 7: Frame your argument.

Therefore, although often overlooked, the Interpretation Act can often provide solid authority to counsel seeking to buttress a particular interpretation of a disputed provision, and the court’s attention should be drawn to any of its relevant provisions.

At this point, counsel has completed a detailed review of the provision in issue and conducted the requisite statutory interpretation analysis. The arguments in favour of the favoured interpretation (and against the opponent’s) have been identified. What remains now is how to structure the argument for the court.

109 Ibid. at 300.

110 See, for e.g., Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 at paras. 75 – 76.

111 Interpretation Act (Nova Scotia), s. 9.

112 Interpretation Act (Canada), s. 12.

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In Thomson v. Nova Scotia (Workers’ Compensation Appeal Tribunal), a five-member panel of the Nova Scotia Court of Appeal summarized the key principles that should guide counsel in their approach to a question of statutory interpretation. In its reasons, the Court explained:113

If the steps above have been followed, the interpretive issue in the case will already have been articulated with the necessary precision for inclusion in the factum. It is noted that if this is an appeal, however, counsel will have to begin by addressing the standard of review. With respect to administrative tribunals, deference may well be due to a body interpreting its governing legislation. For example, in Mowat the Supreme Court of Canada recently applied the standard of review analysis from Dunsmuir and concluded that the question of whether the Canadian Human Rights Tribunal’s conclusion that the term “expenses” in a provision of the Canadian Human Rights Act included “legal costs” was subject to review on a standard of reasonableness and not correctness, notwithstanding the very broad legal issues the case raised in relation to administrative tribunals and the law of costs. Mowat provides some helpful guidance on how to conduct the necessary standard of review analysis.

As in any case of statutory interpretation, the Court must strive to give the statute its most appropriate interpretation. The appropriate interpretation is to be arrived at by taking account of the statute’s total context having regard to its purpose, the consequences of proposed interpretations and presumptions and special rules of interpretation. The appropriate interpretation is one which is plausible in the sense that it complies with the text of the statute, which is efficacious in the sense that it promotes the legislative purpose and that is acceptable, in the sense that the outcome is reasonable and just.: Ruth Sullivan (ed.) Driedger on the Construction of Statutes (3d, 1994) at 131.

This paragraph provides a useful framework by which to structure a statutory interpretation argument. It is particularly helpful because it provides counsel with two different choices of a starting point for their argument. According to the relative strength of their case, counsel can lead with the second line of the paragraph and approach their argument in order of purpose, consequences and textual rules. Or, if their strength lies elsewhere, counsel can start with the third line and structure their argument in order of textual rules, purpose, and consequences. Either approach is consistent with the Court of Appeal’s wording, but the different sequencing contained in the above paragraph allows counsel the opportunity to lead with their best argument.

Whatever approach is followed, it is suggested that counsel take advantage of the introductory or overview section to concisely state the proposed interpretation and the fact that this interpretation best accords with the text and purposes of the legislative provision while also resulting in the best outcome.

114

113 Thomson, supra note

88 at para. 16. See also Sullivan, 5th ed., supra note 24 at 3.

114 Mowat, supra note 79 at paras. 15ff.

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As noted earlier, counsel should state precisely at the outset at their legal argument the interpretation they propose be given to the provision in issue.115 A suggested approach is to then present the above excerpt from the Nova Scotia Court of Appeal in Thomson or an equivalent passage from Sullivan to demonstrate to the court that you know the task ahead of you and will be following a proper path to get there. Counsel should use headings to introduce the major milestones of the argument,116 and use additional subheadings when appropriate to signal more specific arguments.117

Ultimately, counsel who structure their argument in a clear and systematic way and adequately address the key components of statutory interpretation will gain the court’s confidence, allow for meaningful debate and discussion, and enable counsel to be as persuasive as possible on the point in issue.

V. Extrinsic Aids to Statutory Interpretation

A. Legislative History The “legislative history” of an enactment consists of all the documents pertaining to the preparation and passage of a statute. This includes proposals in the form of green papers and white papers,118

115 In some cases, it may be helpful to reproduce the impugned statutory provision at the outset, followed by counsel’s proposed interpretation in the next paragraph. This has the benefit of allowing the court to read the two together. In other cases, this may be accomplished in one paragraph where the proposed interpretation is best illustrated by including it as a modification or clarification of the existing statutory language.

116 For example, “The Proposed Interpretation Accords with the Legislative Text”, “The Proposed Interpretation Promotes the Legislation’s Purpose”, and “The Consequences of the Proposed Interpretation are Reasonable and Just”.

117 For example, “No Tautology” under the textual analysis, “Legislative History” under the purposive analysis, and “Effects on Related Provisions” under the consequential analysis.

118 A “white paper” is an official document presented by a Minister which states and explains the government’s policy on a certain issue, whereas a “green paper” is an official document sponsored by a Minister which is issued by the government to invite public comment and discussion on an issue prior to the formulation of the government’s policy.

reports of Law Reform Commissions and Royal Commissions of Inquiry, Hansard reports of the debates of the Houses of Parliament/Legislative Assembly and their committees, amendments made to the bill prior to its enactment, and press releases and explanatory materials. Until recent times, it was relatively well-established that the legislative history of an enactment was inadmissible before the courts to prove the intent of the legislature. This was because of an exclusionary rule that traced its origins back to the 1769 case of Millar v. Taylor, where Willes J. stated:

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The sense and meaning of an Act of Parliament must be collected from what it says when passed into a law; and not from the history of changes it underwent in the house where it took its rise. That history is not known to the other house, or to the Sovereign.119

In Gosselin v. The King,

120 Taschereau C.J.C. quoted the judgment of Peckham J. of the United States Supreme Court in United States v. Trans Missouri Freight Association121

While for many years the exclusionary rule offered a strong bulwark against the admission of legislative history as evidence in court, it has eroded significantly in the last two decades to the point where the Supreme Court has explicitly recognized the admissibility of legislative history. Initially, courts found limited exceptions to the exclusionary rule, such as in Re Residential Tenancies Act,

in discussing the difficulty of relying on legislative debates for the purpose of determining legislative intent:

it is impossible to determine with certainty what construction was put upon an Act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other.

122

119 (1769) 4 Burr. 2303 at 2332, 98 E.R. 201 at 217 (K.B.).

120 (1903), 33 S.C.R. 255 at 267.

121 166 U.S. 290 at 317 (1896).

122 [1981] 1 S.C.R. 714 at 723.

where Dickson J. (as he then was) affirmed the admissibility of certain legislative history materials:

Generally speaking, for the purpose of constitutional characterization of an act we should not deny ourselves such assistance as Royal Commission reports or Law Reform Commission reports underlying and forming the basis of the legislation under study, may afford. The weight to be given such reports is, of course, an entirely different matter. They may carry great, little, or no weight, but at least they should, in my view, generally be admitted as an aid in determining the social and economic conditions under which the Act was enacted. The mischief at which the act was directed, the background against which the legislation was enacted and institutional framework in which the act is to operate are all logically relevant. [citations omitted]

Eventually, the courts moved away from a categorical approach to admitting evidence of legislative history and towards a principled approach, wherein the nature of the materials being relied on goes to the weight to be given the legislative history evidence, rather than its admissibility.

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In Rizzo,123

However, Iacobucci J. did not limit the use of the Minister’s statement to determining the background and purpose of the amendment. Instead, he relied on the Minister’s statement as direct evidence of legislative intent, confirming that a provision that required an employer to pay severance to employees upon termination of employment applied in the context of termination as a result of the employer’s involuntary bankruptcy. The Supreme Court has made use of the legislative history of a statutory provision as direct evidence of legislative intent in subsequent cases,

the Court, per Iacobucci J., relied on statements made by the Minister when introducing an amendment to the Ontario Employment Standards Act to support a particular interpretation of the amendment. In justifying his use of the Minister’s statements, Iacobucci J. held:

Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation. Writing for the Court in R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 484, Sopinka J. stated:

. . . until recently the courts have balked at admitting evidence of legislative debates and speeches. . . . The main criticism of such evidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation.

124 and has even made use of the legislative history of regulations, having relied on a regulatory impact analysis statement in Friesen v. Canada when interpreting the application of an amendment to the Income Tax Regulations.125

The test for determining whether legislative history is admissible is whether the material sought to be admitted is relevant to the interpretation issue before the court and not inherently unreliable. Once admitted, however, the legislative history should not be given undue weight.

126

For recently enacted statutes, much of the legislative history can be obtained online. The Parliament of Canada website includes a LEGISinfo page

127

123 Rizzo, supra note

with information about each bill, including its bill number, short title, progress in Parliament, links to the Hansard for each stage of the bill’s progress and, where

71 at para. 35.

124 E.g., H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865.

125 [1995] 3 S.C.R. 103 at para. 63.

126 Sullivan, 5th ed., supra note 24 at 612; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870 at para. 23, per the concurring reasons of Bastarache J.

127 http://www.parl.gc.ca/LEGISInfo/Home.aspx?Language=E&Mode=1&Parl=41&Ses=1

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the bill has received Royal Assent, the citation information for the statute. Other materials, such as White and Green Papers, may be available online from the sponsoring Department’s website or may be borrowed from the Parliamentary Library.

Similar information can be obtained in respect of provincial statutes from the website of the Nova Scotia Legislature and its Status of Bills webpage.128

B. Administrative Interpretation

One important difference between what is available from the Nova Scotia House of Assembly and what is available from the Parliament of Canada is the scope of the records of Hansard. While Hansard in Nova Scotia compiles a complete and accurate verbatim record of the debates of the House of Assembly, it does not transcribe the proceedings of all of the Committees of the House. Most importantly for the purpose of this paper, Hansard does not transcribe the deliberations of the Law Amendments Committee, the Private and Local Bills Committee, or the Committee of the Whole House on Bills. The Status of Bills webpage does, however, post electronic copies of the written submissions made in respect of each bill.

Persons responsible for the administration of a statutory scheme may issue directives to assist those who must interpret and apply the statute on a daily basis. These directives do not have the force of law unless it is explicitly provided for under the Act, in which case, the directives are effectively regulations.129

In the recent decision Canada (Canadian Human Rights Commission) v. Canada (Attorney General),

Where directives do not have the force of law, they may still be admissible as more or less persuasive evidence of the proper interpretation of an enactment.

130

A further element of context is that the Commission itself has consistently understood that the CHRA does not confer jurisdiction to award costs and has repeatedly urged Parliament to amend the Act in this respect. Despite the limited weight of the factor, this Court has permitted consideration of an administrative body’s own interpretation of its enabling legislation, for example, in Will-Kare Paving & Contracting Ltd. v. Canada, 2000 SCC 36, [2000] 1 S.C.R. 915. Binnie J. (in dissent) relied on excerpts from speeches to the Canadian Tax Foundation made by both the Minister of Finance and an employee of Revenue Canada when interpreting an income tax provision. Binnie J. states, “[a]dministrative policy and interpretation are not determinative but are

the Supreme Court, per LeBel and Cromwell JJ., considered whether the Canadian Human Rights Tribunal has the authority to award costs. In interpreting the Canadian Human Rights Act, the Court considered the Canadian Human Rights Commission’s understanding of the Tribunal’s authority to award costs. LeBel and Cromwell JJ. wrote (at paragraph 53):

128 http://nslegislature.ca/index.php/proceedings/status-of-bills/

129 Sullivan, 5th ed., supra note 24 at 621 – 623.

130 2011 SCC 53

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entitled to weight and can be an important factor in case of doubt about the meaning of legislation”, at para. 66, citing Harel v. Deputy Minister of Revenue of Quebec, [1978] 1 S.C.R. 851, at p. 859, per de Grandpré J., and Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 37, per Dickson J. (as he then was). While of course not conclusive, this sort of opinion about the proper interpretation of the provision may be consulted by the court provided it meets the threshold test of relevance and reliability (see Sullivan, at p. 575; Côté, at pp. 633-38). In my view, the considered and consistent view of the Commission itself about the meaning of its constitutive statute meets these requirements.

Thus, materials indicative of administrative policy and interpretation are admissible on the same basis as legislative history—they must be relevant and not inherently unreliable.

Administrative interpretations may take many different forms—directives, guidelines, interpretation bulletins, and policy manuals being just some examples. These documents and materials are increasingly available online.

C. Judicial Interpretation Judicial interpretation of a legislative provision is probably the most commonly relied upon extrinsic aid to legislative interpretation. In addition to decisions that have previously interpreted the provision in question, resort may be had to judicial decisions which have considered similar provisions in other pieces of legislation, both within and outside of the jurisdiction in question. For example, in Lyons v. The Queen,131

In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General),

the Supreme Court had to interpret the provisions of the Criminal Code authorizing the interception of private communications to determine whether they also authorized entry onto private premises to install an authorized listening device. Estey J., writing on behalf of a majority of the Court, concluded that such entry was implicitly authorized, even though the provisions failed to expressly provide such authorization. Estey J. relied on the legislative history and judicial interpretation of the American legislation upon which the Criminal Code provisions were based.

132

131 [1984] 2 S.C.R. 633.

the Nova Scotia Court of Appeal had to consider the effect of subsection 5(4) of the Proceedings against the Crown Act, which extended the effect of any enactment limiting the liability of an officer of the Crown in respect of any tort committed by that officer to the Crown itself. In Cherubini, the appellants were seeking damages for negligence against the Government in respect of the discharge of regulatory duties under the Occupational Health and Safety Act. Section 78 of the Occupational Health and Safety Act limited the liability of the Crown's servants and agents for acts or omissions done in good faith while acting under the authority of, or in accordance with, requirements imposed by the Act and its regulations. The Court, per Farrar J.A., relied on a decision of the Prince Edward Island Supreme Court, Appeal Division—Lewis v. Prince Edward

132 Cherubini, supra note 86.

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Island133

These cases illustrate the value of judicial decisions interpreting other pieces of legislation when there are no precedents considering the provision that is to be the subject of interpretation. If a provision being interpreted has not been subject to previous judicial interpretation, regard should be had to identically or similarly worded provisions elsewhere in the statute book, and in the statute books of the other provinces and territories and of Canada. Often times, statutes governing the same subject matter in different jurisdictions share common aspects and provisions. Sometimes, statutes are based on a uniform Act proposed by the Uniform Law Conference of Canada.

—to hold that subsection 5(4) of the Proceedings against the Crown Act immunized the Crown from liability, and furthermore, that Section 78 of the Occupational Health and Safety Act indicated that there was insufficient proximity between the parties to justify the imposition of a prima facie duty of care. Farrar J.A. drew parallels between the effect of Section 78 of the Occupational Health and Safety Act and its interaction with subsection 5(4) of the Proceedings against the Crown Act in Cherubini, and a limitation of liability clause in the P.E.I. Plant Disease Eradication Act and a provision of the P.E.I. Crown Proceedings Act in Lewis.

134

133 (1998), 160 Nfld. & P.E.I.R. 183.

The interpretations given to legislative enactments in other provinces and territories can be of highly persuasive value in interpreting an identical or similar provision of a different enactment. At the same time, one must use caution: textual differences in two provisions being compared can suggest different legislative intentions and, in the process, diminish the precedential value of judicial interpretations.

134 See the website of the Uniform Law Conference of Canada at http://www.ulcc.ca/en/home/.