You are on page 1of 56

UNIVERSITY OF CALGARY LAW

LAP CANS
1st Year, Fall 2012
Lindsay Amantea Fall, 2012

LAP CANS

Fall, 2012

Contents
Framework .............................................................................................................................................. 3 Topics .................................................................................................................................................... 13 Introduction, Sources of Law and the Court System ........................................................................ 13 Policy Choice and Limitations ........................................................................................................... 17 Legislative Process – Federal & Alberta ............................................................................................ 18 Subordinate Legislation .................................................................................................................... 20 Limits on Delegation ......................................................................................................................... 24 Introduction to Drafting .................................................................................................................... 25 Guest Lecture: Peter Pagano ............................................................................................................ 25 Drafting ............................................................................................................................................. 32 Organization & Legislative Sentences ........................................................................................... 32 Definitions ..................................................................................................................................... 32 Paragraphing ................................................................................................................................. 32 Introduction to Legislative (Statutory) Interpretation ...................................................................... 32 General Approach to Interpretation ................................................................................................. 33 Specific Aids: Context (Language Aids) ............................................................................................. 34 External Context................................................................................................................................ 34 Social ............................................................................................................................................. 34 Legal and Common Law ................................................................................................................ 34 Extrinsic Material .......................................................................................................................... 35 Presumptions .................................................................................................................................... 36 Retroactivity .................................................................................................................................. 36 Vested Rights ................................................................................................................................ 36 Against Substantial Alteration ...................................................................................................... 36 Tests ...................................................................................................................................................... 37 Charts .................................................................................................................................................... 38 Case Briefs ............................................................................................................................................. 45 RE RIZZO AND RIZZO SHOES LTD SSC (1998)..................................................................................... 45 BELL EXPRESSVU LIMITED PARTNERSHIP V. REX SCC (2002) ............................................................ 47 UNITED TAXI DRIVERS FELLOWSHIP OF S. ALBERTA V. CALGARY SCC (2004) .................................. 47 CANADA (A-G) V MOWAT Federal C.A (2009) .................................................................................. 48 WIGGLEWORTH V. THE QUEEN SCC (1987) ...................................................................................... 48 CITY OF NANAIMO V. RASCAL TRUCKING LTD. SCC (2000)............................................................... 49 1

LAP CANS

Fall, 2012

GRINI V. GRINI Manitoba C.A (1974) ................................................................................................ 50 R. V. STRAHL Manitoba C.A. (1967) .................................................................................................. 51 R. V. OAKES SCC (1986) ..................................................................................................................... 51 FISHER V BELL (1960) ........................................................................................................................ 51 MANDAVIA V. CENTRAL WEST HEALTH CARE INSTITUTIONS BOARD (2005) ................................... 52 DIKRANIAN V QUEBEC (A-G) SCC (2005) ........................................................................................... 52 ARGUS V. HART ................................................................................................................................. 53 BROSSEAU V. ALBERTA SECURITIES COMMISSION ........................................................................... 54 WENER V. DAVIDSON........................................................................................................................ 54

2

LAP CANS

Fall, 2012

Framework
1) Policy and the Law: Decision making (Tardi article) a. Based on policy alone and not contrary to law? Challenge only on grounds that policy maker has no jurisdiction. b. Where decision making is based on the application of the law alone, the matter us one of pure law and the full range of administrative law remedies can be sought in the courts. c. Law empowers policy making authority? If policy is within the authorized legal parameters, the courts allow the policy and decisions made pursuant to it to stand. d. Willful adoption of policy in conflict with the relevant legal provisions and act on the basis of the policy rather than the law? Breach of public duty. (Investment Contract Act case in Alberta) e. If policy and statutory law conflict, which prevails? Statutory law (Rural Dignity of Canada v. Canada Post Corp.) 2) Primary and subordinate regulations: a. RIAS – will the regulation have a high impact or low impact on the people it will affect? (RIAS template, pg. 37) b. Who has been given authority under the Act? Is that the person who ends up actually using the authority? (Look for other people using authority) c. Federal Matters i. At what point in the legislative process is the bill? Second reading is where the House debates. ii. Statutory Instruments Act: defines “statutory instrument” and “regulation.” (p.376) d. Provincial Matters i. Recall: proposed bills in Alberta pass through Agenda & Priorities Committee (A&P), Standing Policy Committees (SPC), Caucus, and Legislative Review Committee before being introduced in the legislature (Legislative Counsel’s Office will draft after A&P approval). e. Regulations i. Is it a regulation? Regulation, order, rule, form, tariff of costs or fees, proclamation, bylaw, resolution (not orders made in a dispute). (Interpretation Act) Of a legislative nature? ii. In force? The day it’s filed w/ registrar unless a later date is provided. NEVER before the day it’s filed. iii. Has it been published? Has publication been dispensed with? iv. Has the Lt. Gov. in Council exempted the regulation from the RA? v. Alberta: Regulations Act; key sections: 1(1)(f), 2, 3, 5, 8(e). vi. Regulations can’t be grander or contrary to the parent legislation; rules of interpretation apply to regulations. f. Limits on Delegated Authority i. Delegated authority can’t be re-delegated. ii. Merely administrative powers may be re-delegated (little to no discretion). STATUTORY INTERPRETATION Willis: 1) Literal or plain meaning rule (most narrow) - Use ordinary sense. I words are plain and unambiguous bound to construe them in their ordinary sense even if it leads to an absurdity or manifest injustice

3

LAP CANS

Fall, 2012

2) Mischief rule – Identifies mischief intended to be addressed by the statute and interprets in order to suppress the mischief 3) Golden rule - Plain meaning unless absurd or inconsistent, modify so as to avoid the absurdity or inconsistency but no farther 4) Textual rule (most broad) – Use context of the statute – has expanded to “Modern Principle” Sullivan: Driedger’s Modern Approach “The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” 1) Ordinary and grammatical meaning in the context - Purposes and scheme (derive intent of legislature) 2) Internal tools - rules of construction i. Noscitur ii. Ejusdem iii. Expressio 3) External tools: i. Presumptions ii. Extrinsic Aides Modern Approach: Rizzo Shoes (5 stars)  Established the modern principle of statutory interpretation as the preferred approach of the SCC  “words read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme/object of the act and the intention of Parliament  Extrinsic material is admissible like Hansard (Morgentaler)  Modern approach so entrenched that authority unnecessary (Mowat) Bell (5 stars)  Qualifies modern approach  Acts deemed to be remedial and given fair, large and liberal construction as best ensures the attainments of its objects (federal leg – Interpretation Act s.12; s.10 for provincial)  Presumed harmony between statutes dealing with same subject matter  External interpretive aids, like other principles (strict construction of penal, Charter values respected, no intention to change common law) only engaged when a true ambiguity is found – supremacy of legislative intent  Definition of ambiguity: Provision reasonably capable of more than one meaning, each equally in accordance with the intention of the statute, AFTER modern approach, NOT after competing conclusions from different courts or scholars  Application: o Grammatical and ordinary sense o Broader context (objects/scheme, intention, consequences) o External aids United Taxi (1.5 Stars)  Modern approach on municipal law Wigglesworth (1 star)  Marginal notes considered in interpretation despite not being legislated, But IF the marginal note itself causes an ambiguity, then you can't take that marginal note into consideration, given same weight as header

4

LAP CANS
Internal Context: Expressio:  Use of words implies exclusion of others

Fall, 2012

Noscitur (general rule): Terms coloured by other proximate terms, 2 or more terms linked by and/or but don’t have a general term, though a general word is coloured by more specific words Ejusdem Generis(ex: of Noscitur)  Preceding specific terms colour general term which follows  Specific terms MUST have an ascertainable genus to enable colouring  If applied: “or other”  “or other such” Nanaimo v Rascal Trucking (2 stars)  Inclusive application of Ejusdem Generis  Dirt pile within “building, structure, or erection of any kind” Grini (2 stars)  Failed application of Ejusdem Generis (exhausted genus)  An exhausted genus mitigates restriction of general term  “illness, disability or other cause” – NO OTHER causes of personal incapacity, general term refers to broader genus than the preceding terms Strahl (2 stars)  Failed application of Ejusdem Generis (overturned genus by purpose of Act)  “impose upon the delinquent such further of other conditions as may be deemed advisable” – includes suspended driver’s license since object of the act is to imitate parental authority in punishment External Context: Oakes (1 star)  Social context now may be considered to interpret legislation (reverse onus with drug prosecution)  Particularly important in Charter analysis  Considered gov’t reports as empirical data of social context to perform Charter analysis and determine reasonable limit in a free and democratic society Popovic (1 star)  Legislative history will be considered to interpret legislation  Concluded that burglary limited to dwelling houses by looking through history of the relevant provision in the Criminal Code Fisher v Bell (1 star)  Common law can be considered in interpretation (illegal knife) Morgentaler (1 star)  Parliamentary documents/hansard (least weight, clearly political)/committee reports, etc. considered in interpretation (at least in constitutional cases – here abortion). Presumptions: 1. Retroactive: a. Statute changes the legal nature of a past event in the past b. STRONG presumption against 2. Retrospective: a. Statute gives new consequences for an ongoing situation, but does not change the legal nature of a past situation b. NO presumption against 3. Purely Prospective: a. Applies only to future 4. Vested Rights: a. Presumption that legislature does not intend to interfere with vested rights Mandavia (5 stars)  Summary of temporal categories and presumptions  Strong presumption against retroactive application o Need language clearly indicating retroactive intent 5

LAP CANS
   

Fall, 2012

Dynamic presumption against interference with vested rights o Weight depends on the nature of the protected right and the unfairness or arbitrariness of abolishing or curtailing the right No presumption against retrospective or immediate application o However, many of these cases covered by presumption against interference with vested rights or Interpretation Acts Retroactive: Change the past legal effect of a past situation Retrospective: Change the future legal effect of a past situation

Dikranian (3.75 stars)  Presumption against interference with vested rights. Provides explanation of "vested rights" and when they are formed and can be used as a legal argument (contracts are classic vested rights)  Three part test for vested rights (ie. juridical situations in progress): 1. Juridical situation must be tangible and concrete (not general and abstract) 2. Must be a right of the specific individual, not a community or class right 3. Legal situation must have been sufficiently constituted at the time of the new statute’s commencement Angus v Hart (1 star)  If a statute is procedural (ie. does not affect substantive rights), presumptions against retroactivity & vested rights don't apply unless it prejudices a substantial right of the defendant Brosseau (1 star)  If the legislation is in the public good/public interest rather than punishing a person, presumptions don't apply. Wener (1 star)  Presumption against alteration of the common law applies presumptively unless the statute is a "code" which is meant to replace the common law King v Robinson (1 star)  Presumption that penal statutes construed strictly in favour of accused only applies in cases of true ambiguity (for ambiguity see Bell) STATUTORY INTERPRETATION 1) Identify the issues and spot the ambiguities 2) Use rules of construction and analyze the specific words or phrases: literal, purposive, mischief, golden 3) Look at headings and marginal notes to help find the legislative intent 4) Use context language aids: nonscitur, ejusdem, expression 5) Look at the external context: social, historical, legal, statutes in pari materia, common law 6) Use extrinsic evidence: reports, white papers, Hansards, speeches, etc. 7) Is the legislation in effect at the time of the incident? a) If yes, skip to the next question b) If no, look at retroactivity, retrospectivity and vested rights 8) Does the legislation substantially alter the common law? 9) Does the legislation apply a strict construction to a penal statute? 1) IDENTIFY THE ISSUES: IS THERE AN AMBIGUITY OR QUESTION ABOUT MEANING? Statutory interpretation tools are utilized where there is an ambiguous term, provision or section in a piece of legislation; if there is no ambiguity as to the meaning, there is no need to interpret the statute 6

LAP CANS

Fall, 2012

Ambiguity arises because: language is an uncertain tool/conditions in society change/ legislators use general language/legislators are careless and in a hurry In interpreting statutes, we are trying to find the legislative intent 2) APPORACHES TO STATUTORY INTERPRETATION  Use rules of construction and analyze the specific words or phrases: literal, purposive, mischief, golden  Look at headings and marginal notes to help find the legislative intent Purposive Approach (Regina, Kravatsky, Rizzo) Principle: Statute should be construed according to the intention of Parliament Problem: courts are concerned with the will or intention inferred from the kind of evidence admissible in the court of law, and not with the intention of parliament as a historical fact Literal Approach (United Taxi CA) Principle: the words of a statute should be construed in their literal meaning and their ordinary sense Advantage: predictability and control of judges Problem: the meaning of words is always dependant on the context in which they are used, and it is not true that the dictionary meaning of words necessarily declare the intentions of the person using them Golden Rule (Rizzo, Grini) Principle: the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy, inconsistency or inconvenience in the rest of the instrument Problem: absurdity and inconvenience are matters of opinion and are hence subjective Mischief Rule Principle: Consider what the common law was before the statute, what the mischief at which the statute was directed is, what remedy is suggested and what the true reason behind the remedy is Problem: the definition of what constitutes a mischief is subjective Modern Approach: (United Taxi SCC) Principle: words of a statute are to be read in their entire context in their grammatical and ordinary meaning, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament This is the general approach that S.C.C. has asked all courts to follow when they approach an ambiguous statute  Willis Article (2): outlines each approach, and established 3 rules: (1) Do not just look at the plain meaning rule (2) Beware of putting too much trust in previously decided cases (3) Do not be misled when the court refers to the intent of the legislature (this concerns the social policy behind the Act) Sullivan Article (4): outlines the modern approach to statutory interpretation Rizzo (4): Plain meaning approach is not sufficient, rather, a combination of the literal, golden and purposive rules would best serve the purpose of finding the legislative intent of the statute; moreover, extrinsic evidence such as Hansard Records could be used as tools 7

 

LAP CANS

Fall, 2012

   

(limited as they may be) in arriving at the legislative intent (here, it was found that the terms “terminated by employer” were meant to include bankruptcy) Regina ex rel. Toronto Transit Commission (5): When ordinary meaning in isolation is not sufficient, look to the purpose of the provision and the Act as a whole to find the legislative intent (here, the purpose was to give the Transit Commission a monopoly over local transport) Zacks (6): In some circumstances, raking a policy driven approach may be appropriate in interpreting the words of a statute Kravetsky (6): A purposive approach is appropriate in assessing legislative intent and interpreting a statute Cotter (7): Purposive approach used United Taxi CA (7): literal approach best serves the purpose of finding legislative intent in an ambiguous statute (powers to limit the number of TPLs was ultra vires the municipal government where such a power was not expressly granted by the Municipal Government Act) United Taxi SCC (8): The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament (intention of Parliament in using more general provisions was to enhance the municipality’s powers and avoid the need for listing specific matters and powers, so a provision explicitly limiting the number of TPLs was unnecessary) Wiggleworth (9): While their authority is relatively weak, marginal notes can be used (as can headings  more force) as statutory interpretation tools

MODERN APPROACH: the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament INTERNAL CONTEXT: LANGUAGE TOOLS  Use context language aids: nonscitur, ejusdem, expression Nonscitur a sociis: Words found together take their color form one another Ejusdem Generis: A general phrase (usually of the “or other” type) rakes its color from the words that precede it; the general term should be limited to the genus of the enumeration of the specific terms Limitations: (1) if the words in the list do not have the same characteristic that give them a common sense, there is no color for the general word to take on and no common genus  rule does not apply (2) If the genus is exhausted by limited terms  rule does not apply (3) If legislative intent indicates that the rule does not apply  rule does not apply (strahl) Expressio: By expressing one thing, there is an implied exclusion of something else Two forms: (1) failure to mention comparable items (2) failure to follow a pattern of legislation   City of Nanaimo (11): Using ejusdem generis, it could be established that pile of dirt was covered under the genus of “building, structure or erection of any kind” (questionable decision: ejusdem rule used very loosely) Grini (12): Where specific words exhaust the whole genus they relate to, the general phrase following them must refer to some larger genus and should not be construed as restrictive 8

LAP CANS

Fall, 2012

(in this case, illness and disability exhausted their respective genus and so being in school could be construed as an “other cause” for the inability of the youth to support herself) Strahl (13): where the legislative intent indicates that ejusdem does not apply, we can ignore the rule (in this case the purposive approach defeated the ejusdem rule by placing the act of suspending the youth’s license under “such further or other conditions as may be deemed advisable” even though it was in a separate genus than the other sub-clauses)

EXTERNAL CONTEXT: SOCIAL, LEGAL AND COMMON LAW  Look at the external context: social, historical, legal, statutes in pari materia, common law  Oakes (15): social context (historical analysis) may be used as a tool to find the legislative intent (in this case, it was found that drug trafficking was a matter of growing concern, and that Parliament’s interest and objective was aimed at curbing drug trafficking by facilitating the conviction of drug traffickers) Popovic (15): where there is an ambiguity, the courts may look at the previous versions of the Act or Code in question, but they must bare in mind Parliament’s intent in the revisions (in this case, it was found that the court never meant to change the meaning, either in the English or the French versions of the Criminal Code, of burglary) Capital Growers (16): Acts that are in pari materia (related to the same purpose or thing) can be read together (in this case it was found that the statutes in question both referred to the transfer of land, and that if they were not read together, important provisions of the Act would be rendered worthless) Fisher (16): Common law may be used as a tool to find the legislative intent (in this case, it was found that in common law, the display of an item for sale in a window was not an offer to sell, but an invitation to treat, and this was used to get at the legislative intent of the provision in question)

USE OF EXTRINSICE MATERIAL  Use extrinsic evidence: reports, white papers, Hansards, speeches, etc. Extrinsic material has traditionally been excluded from evidence in statutory interpretation cases (exclusionary rule: extrinsic evidence is generally unreliable); bur more recently the view towards them has been relaxed, but they are still approached with case (danger of relying on them when they do not tell the whole story)  Re Section 94(2) of the Motor Vehicles Act (17): extrinsic material, while admissible, can be given little evidential might (in this case, the court voiced a number of concerns: the Charter was a product of a multiplicity of individuals, comments of a few civil servants could not be determinative, rights and freedoms embodied in the Charter would become frozen in time at the time of adoption  against the living tree concept) Sullivan (18): where there is an ambiguity, the historical analysis and reference to earlier versions of the statute are permissible (in this case, an assessment of the history of the statute showed that Parliament, in making revisions, did not intend to distinguish between “person” and “human being” Heywood (19): Admissibility of legislative debates to determine legislative intent is doubtful and should be used only to find the mischief the Act attended to (in this case, a literal approach was used, since the extrinsic evidence was unreliable: lack of consensus, political nature)

9

LAP CANS
 

Fall, 2012

Morgentaler (20): Provided that the court remained mindful of the limited reliability and weight of extrinsic evidence, it could be admitted as background to find the mischief the legislation attempted to address Mirimichi (20): extrinsic evidence is useful in finding the mischief to be addressed (not to interpret the provisions of the Act)

PRESUMPTIONS  7) Is the legislation in effect at the time of the incident? a) If yes, skip to the next question b) If no, look at retroactivity, retrospectivity and vested rights  Is there an issue regarding retroactivity?  Does the statute explicitly or by clear implication allow for retroactivity?  Is the statute retroactive or merely retrospective?  Does the statute affect vested rights?  Is the change procedural or substantive?  Does the statute attach a new penalty for past events, but is of general application used for the public good? Retrospective legislation: Operates to give new consequences to past events but does not change the legal character of the event itself in the past Ex. A is complying with a 2000 by-law but a 2005 by-law is now requiring some changes to be in compliance with the new legislation  the new legislation does not retroactively reach back to 2000 and turn the 2000 compliances into violations at the present time  it operates from the point of enactment but applies to past events and situations Retroactive legislation: Changes the law in the past Ex. In 1998 A is convicted of an indictable offence and a year later becomes a notary public. In 2004 legislation is passed which prohibits anyone convicted of an indictable offence since Jan.1 1995 from being a notary public (retroactive legislation)  A’s becoming a notary public in 1999 is a nullity Presumption against retroactive application of legislation: it must be clear from the words of the statute itself that the legislature intended retroactive application Vested rights: Vested Right: rights that have accrued or settled in a person and are of such a nature that the law recognizes them as rights that cannot be easily defeated Presumption against vested rights: statutes are not to be construed in such a way as to impair existing or vested rights as regards person or property unless the language in which it is couched requires such a construction. Applies whether the legislation is retrospective or retroactive To rebut this presumption, legislation must clearly express the intention to take away or diminish vested rights Substantial Alteration Presumption against substantial alteration of common law: legislature does not intend to make any substantial alteration of the law beyond what it explicitly declares, either in express terms or by clear implication Penal Statutes 10

LAP CANS

Fall, 2012

Presumption of strict construction: if a penal statute is ambiguous as having two possible interpretations, it is to be construed strictly as to favour the accused Presumption is not used as often now because: 1. SCC says that presumption should not be applied in a mechanical way 2. Interpretation Act now requires “fair, large and liberal construction” Exception to the presumptions: 1. Procedural in nature (there are no vested rights in procedure, only in the substance of the statute) 2. Beneficial to everyone and not prejudicial 3. Can be rebutted with clear legislative intent – clear, express language 4. Protection of public (Brosseau) 5. Maybe Charter cases because confer rights Retroactivity: Procedural v. Substantive enactments Presumption against retroactive construction has no application to enactments that affect only the procedure and practice of the courts. BUT The rule against retroactive application certainly applies for substantive matters. The question is not simply whether the enactment is one affecting procedure but whether it affects procedure only and does not affect substantive rights of the parties.  Mondavia: o He became pensionable in 1993 (when he actually retired) but he had 7 more years of work before he had to retire  lost the top-up amount for those 7 years o The act is meant to have retrospective application: new consequences on Ks entered into prior to the legislation  no presumption against retrospective application o But, is there a presumption against vested rights? No, because the words of the legislation clearly state that the intention is to take away those rights Re Royal Insurance: In cases where a statute creates a new obligation, duty or disability in respect of consideration already passed and the statute does not expressly discuss the matter of retroactivity, there is a presumption against its retroactive adoption Angus: if a substantive alteration to a statute effects an individual’s vested rights, and there is nothing in the statute the explicitly or by clear implication takes away those vested rights, the presumption against vested rights applies Brosseau: While there is a vested right in not having a new remedy ordered where the objective (look at the whole Act) of the statute is to punish a wrongdoer, there is no vested right where the objective of the statute is to protect the public (in this case, the objective of the statute was to protect the public and so the presumption against vested rights did not apply to B) Wener: If a statute expressly codifies a topic, then common law might not apply; often though, the statute partially codifies the topic, and so common law can be applied; when the Act is not a complete code, common law will fill in the gaps (construe a statute in conformity with the common law rather than against it except where or so far as the statute is plainly intended to alter the course of the common law either by express words removing the rights of action, or words in which this is necessarily inferred) Paul: Penal statutes are to be construed according to a plain, literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the purpose of the act, or to an absurdity. To determine whether there is an ambiguity, first use internal tools of construction (use modern approach, ejusdum, expression, etc.) to try and resolve the ambiguity before applying presumptions (Be careful when applying presumptions, to make sure they actually do what they are supposed to do  ex. apply only if it will benefit the accused) 11

  

LAP CANS

Fall, 2012

12

LAP CANS

Fall, 2012

Topics
Introduction, Sources of Law and the Court System
Sources of Law and the Court System 1) What is the law? a. “Orders backed by threats.” H.L.A. Hart b. “Rules with consequences.” Alberta Government 2) Where does Canadian law come from? a. International law b. Common law (judge made law, fills in the gaps of statutory law); no Civil law; we’re under the adversarial system, not the inquisitorial system. c. Statutes or Acts (law drafted by the legislature, elected representatives; in a conflict, statutory law prevails over common law) d. History, custom and tradition (Canada is secular, so no religious texts; some ideas may transfer from the Bible, since we are Judeo-Christian culture, but we don’t use the Bible as a legal text) e. Scholarly works and textbooks 3) Statutory law: what is it? a. Primary v. subordinate legislation. Primary legislation always trumps subordinate legislation (regulations).  What is a law? o Set of rules enforced by the state o Comes from “sources of law”  Statutes (regulations, etc)  Courts (common law)  Unenforceable laws  Customs (leader of majority party is PM, asylum for illegal immigrants in places of worship)  International agreements (most in faith, some have enforcement)  Treaties/Customary international law – precautionary principle (be cautious with scientific uncertainty and incalculable risk)  Aboriginal law  Constitution recognizes aboriginal rights (CA 1982). Attempted accommodation of aboriginal legal history, but primarily not included in formal Canadian legal framework. Likely only fits in insofar as it doesn’t contravene Canadian law  Rights to land, may take precedent over Canadian laws/interests  Rights to customs, hunting, religious practices Statutory law o Legislator made law, as opposed to judge made law o Made by the gov’t, constitution divides jurisdiction in s.91 (fed) and s.92 (prov) o Combines with common law to form our legal system, statutory law is paramount where it conflict with common law o Statutory delegate – person who receives power from a statute, can be narrow or broad, can’t do things beyond their scope o Ultra Vires – when an action falls outside of the permitted scope defined in a statute, making the action void o Legislation is all laws made by the gov’t o Primary legislation: 13

LAP CANS
  

Fall, 2012
Statutes, Acts – passed either by provincial legislature or federal parliament Can give a statutory delegate the power to make a regulation Ex: Municipal Gov’t Act, thus municipal by-laws ARE legislation, just subordinate to the Municipal Gov’t Act Subordinate legislation:  Made by whoever the parent Act says can make it, usually someone accountable to gov’t (ie. Prov: Minister or Lieutenant governor in council for; Fed: Governor general in council, federal cabinet)  What makes something a regulation? Legislative nature  Legislative usually contrasted with judicial or administrative, or merely policy  IA excludes judicial orders  Legislative/Regulation: Rule of general application, applicable to public or large segments thereof and that alters rights and responsibilities. Must be supported by a legislative authority and must be filed to be effective. o Ex: “A local authority may make bylaws designating plants within the municipality as restricted, noxious or nuisance weeds.” o Ex: 99% of the time CALLED a regulation – “The Minister may make regulations…”  Administrative: Normally only applicable to an individual or small number of persons, usually an exercise of an administrative action ( “a statutory delegate may or shall DO x”, rather than “by Regulation, Order, Directive, may do x”) o Ex: “The Minister may appoint employees of the Government as inspectors for the purposes of this Act.”  Policy: Non-binding  Legislation made pursuant to primary legislation, just as binding as primary legislation  Regulations are void if they do not comply with delegated authority  Delegatus non potest delegare – the statutory delegate can only subdelegate if sub-delegation itself was delegated (does not apply to purely administrative acts ie. filing)  Cabinet regulations reviewed by entire gov’t, more scrutiny, as opposed to ministerial regulations which do not need approval by others  Regulations used to balance efficiency and scrutiny (also perverted to avoid contentious debate)  Important to distinguish statute and subordinate legislation – different remedies, and subordinate legislation must be filed to be effective  Ex: Regulation, Order in Council  If parent act is repealed, Interpretation Act tells us that the regulation stays provided it is still consistent with the new act  Filing regulation:  Every regulation must be filed with the registrar (Regulations Act s.2)  Unless a later day is provided a regulation comes into effect on the day it is filed (Regulations Act s.2(2))  Unless otherwise provided in the Act unless a regulation is filed it has no effect (s.2(3))

o

14

LAP CANS
   

Fall, 2012
Within one month of filing must be published in the Alberta Gazette (Regulations Act s.3(1); Unless extended by Minister s.3(2)) Unless another Act exempts a regulation from publication, an unpublished regulation is not valid against a person without actual notice of it (Regulations Act s.3(5)) Cabinet may, in limited circumstances, dispense with publication by order (Regulations Act s.3(3)) Gazette: Official newspaper of Gov’t of Alberta, published twice a month o Part 1 – Proclamations, Orders in Council, Appointments, Resignations and Retirements, Government Notices and Advertisements o Part 2 – amendments to Regulations as well as new Regulations

Policy o Policy is about normative societal goals o Main difference with law – policy is NOT binding o Meant to promote consistency, though often give rise to conflict since ministerial policies approved by a single person, little vetting o Targeting: Who the gov’t wants to influence o Instruments: Means of reaching policy objectives: Regulation, voluntary action (standards), education, economic incentives and disincentives, social programs, contracts, taxation, public ownership o Law always trumps policy! o TARDI – what is the relationship between the policy decision the gov’t made and the law 1) Decision based on policy alone and not contrary to the law – can only challenge on jurisdiction 2) Decision based on law alone – can be challenged by an administrative law remedy (ie. decision maker was biased…), this assumes within jurisdiction (intra vires) 3) Law empowers policy – if the policy is within the law, the policy and the decision made pursuant to it will stand 4) Statutory delegate acts pursuant to policy that conflicts with law which is thus ultra vires (law prevails) Common law (judge made law, English invention)  Two fundamental ideas: 1) Judges declare rather than make law, don’t pronounce new laws, maintain and expound them 2) Past decisions (precedents) are considered as evidence of the law for future decisions  Principle of Stare Decisis (let the decision stand): Process of relying on previous cases (precedents) in judicial reasoning  Precedent may arise from interpretation of a statute or constitutional provision, or common law reasoning employed by judges  A case is a precedent in respect to another case if their facts are sufficiently analogous that the previous reasoning applies to the case at hand
15

LAP CANS 

Fall, 2012

Ratio Decidendi (reason for deciding): General rule that explains the result, the binding rule for the purpose of precedent (on lower courts). Broadened or narrowed by subsequent interpretation.  Obiter Dicti (things said by the way): Everything outside the ratio, not binding, though still used to support argument  Equity: Body of law developed by the court of Chancery – a court which corrected for the harshness of the common law. A fluid, pragmatic, conscience based system of law, anti-establishment (the established common law), no strict doctrine of precedent, allows for the exigencies of particular cases. Now applied concurrently (and dominantly) due to fusion with common law from Judicature Acts  Balances flexibility with stability (shouldn’t have same facts with opposite decisions)  Now, use case law and statutes, where statutes are seen as incursions into the common law (employ analogical reasoning from statutes to fill gaps) Civil law (Roman law of Justinian’s Corpus Juris Civilis) o Legislation is the primary source of law. Based on laws written as broad principles, not on cases. Judgements rely on statutes. o Also uses doctrinal writings of scholars as opposed to judge interpretation to uncover legal rules o Used in Quebec, Louisiana, France Treaties/Customary int’l law o Treaty: Law making contracts between states  Some regulate international state activity, others regulate domestic policy for international objectives  Binding only on signatories  Ex: Kyoto Accord o Customary Int’l law: International legal norms  Binds all states except those that persistently reject it prior to its normalization  Two ingredients:  Amorphous content formed by general state practice  Undertaken with a sense of legal obligation (opinion juris) o Canada is dualist in respect to the relationship between treaty law and domestic law (distinct legal spaces legislated independently, CANNOT change domestic laws by signing int’l treaty, for division of powers Which law applies? o Depends on whether a colony was conquered, ceded, or settled. All about legal “momentum”/narrative o Conquered or ceded: pre-existing laws stay in force subject to change by Crown when “necessary to operate government” o Settled: Legal vacuum filled by appropriate subset of English common law mixed with statutory law. Beginning of legal narrative, to customs to reconcile with. o Reception established by the privy council in

Introductions and Readings 16

LAP CANS
-

Fall, 2012

-

Government bills usually introduced by the sponsoring minister Three readings in senate and house of commons and studied by committees of each house Timing of intro decided by cabinet on recommendation of leader of gov in house of commons Timing and reading of 2nd debate, Report Stage and 3rd reading in HoC is the responsibility of the leader of government in the house of commons, timing of stages of debate in senate is responsibility of leader of gov in senate During a committee’s consideration of the bill, the sponsoring minister of parliamentary secretary attends the committee meetings to ensure that gov’s position is expressed.

Amendments - if the sponsoring minister wants to move or accept an amendment after introduction of the bill o if merely technical, may be agreed to by sponsoring minister o if impacts policy or raise policy questions must go through same procedure as initial proposal, submission of an MC for consideration and approval by cabinet o urgent major amendments may be approved by PM and chair of relevant policy committee together with other interested ministers Coming into Force - An act has the force of law upon royal assent - Frequently an act provides that it or any of its provisions comes into force on a day to be fixed by order of the governor in council. Regulation Making - Elements of the process are established by Statutory Instruments Act. They require that: o draft regulations be examined by Clerk of privy Council in consultation with Deputy Minister of Justice o regulations to be registered and published in Canada Gazette o regulations o be referred to standing joint committee of Senate and the House of Commons for scrutiny of regulations. o Committee regularly communicates with departments in this process

Policy Choice and Limitations
1) What is policy? It stems from legislative bodies dealing with a problem. Policy must be determined before legislation is passed; the legislation will uphold/enforce the policy. 2) How does policy relate to law? Public needs/will of the political party will determine policy; this policy will be used to guide the development of legislation. 3) What instruments can be used to advance policy? The law, but also public consultation/education, economic instruments, self-regulation, and others. See Policy Tool Kit (p.17). 4) When should legislation be used to advance policy? After all other tools are considered, or if it’s the most appropriate tool. It’s considered the hammer of the government, should be used sparingly. 5) What should governments focus on in terms of policy? Focusing on outcomes is better than focusing on processes. By focusing on outcomes, governments may be able to avoid using only legislation to achieve a result. 6) Should a government use one tool or a mix of tools? A mix is better because it gives governments more methods for informing the public of their policy. 7) If policy and statute conflict, which prevails? Statutory law will prevail (although, this may be subject to interpretation – it can be argued that policy will be considered as part of the purpose of the Act). Rural Dignity of Canada v. Canada Post Corp. (p.25). 8) If a government applies policy that is in conflict with statutory law, what could happen? Suspension of statutory law may be seen as a breach of a politician’s public duty. The 17

LAP CANS

Fall, 2012

Investment Contract Act, Alberta case (p.26). 9) If a government advances policy without a legal framework, what could happen? The policy is generally safe, but would be better protected if it is supported by law. General Principles: the relationship between law and policy. Four patterns (p.25-26): 1) Where decision making is based on policy alone and the decision is not contrary to the law, the decision can be challenged only on the grounds of lack of jurisdiction by the decision maker. 2) Where decision making is based on the application of law alone, the matter is one of pure law and the full range of legal remedies may be sought. 3) In instances where the law empowers policy making and a public body or official formulate policy, if the resulting policy is within the authorized legal parameters, the courts allow the policy and decisions made pursuant to it to stand. 4) In instances where Ministers or other public administrators willfully adopt a policy in conflict with the relevant legal provisions and act on the basis of policy rather than law, the person will be found in breach of their public duty to carry out the purpose and objects of the law.

Legislative Process – Federal & Alberta
Federal Cabinet Process: 1. Policy proposal requiring legislation (submitted to Cabinet by a Minister). 2. Consideration of policy proposal in a subject matter committee and decision or recommendation 3. Cabinet confirmation of committee decision 4. Responsible Minister issues drafting instruction for legislation to Department of Justice 5. Draft bill prepared by DoJ and approved by responsible Minister 6. Consideration of draft bill by Cabinet committee on legislation and house planning 7. Cabinet confirmation of committee decision and Prime Minister’s signature Legislature Process: 8. First reading of bill in either Senate or House of Commons (reading of title only, and bill ordered to be printed) 9. Second Reading in same house(debate on principle of bill: bill then referred to committee 10. Consideration of a bill by appropriate committee (hearing witnesses and clause by clause examination) 11. Report stage (consideration of committee report and any amendments made by committee 12. Third reading of bill (debate and final approval) 13. Introduction of bill in other House and same process repeated 14. The Governor General or her deputy(usually a judge of SCC) assents to bill in Senate Chamber in presence of member of both Houses. Provincial Legislation: 1. Minister submits legislation template to Agenda & Priorities Committee (A&P) Agenda & Priorities Committee (A&P) 2. A&P reviews all legislation templates. A&P determines what proposed Bills are to proceed to the Standing Policy Committees. a. Sends template to Legislative Counsel Office – BILL gets First draft. b. Cabinet gives final approval of all proposed Gov’t Bills approved at A&P Standing Policy Committees (SPC ): 3. SPC will review the proposals in the 3-column document, issue by issue, and make a recommendation on each.

18

LAP CANS

Fall, 2012

4.

5. 6. 7. 8.

9. 10. 11.

12. 13. 14. 15. 16. 17.

18. 19. 20.

21. 22. 23. 

a. After approval a “SPC Recommendation” is prepared, which states the recommendation of the committee and describes any issues that may have been left unresolved. Caucus Caucus will approve the 3-column document submitted by SPC. Draft of Bill is worked on incorporating the recommendations of the SPC and Caucus. Legislative Review Committee Consists of the chairs of each SPC + Minister bringing the Bill + Gov’t House Leader + Minister’s department staff Sponsor provides general overview of what the Bill intended to do. Ensures that legal text reflects the policies that SPC and Caucus have approved. Once approved, Bill given number and printed -> gov’t then decides when it wants to introduce the Bill. Passing a Bill in Legislature First Reading Bill needs one full day of written notice in the Order Paper before introduction. Notice: Monday Intro: Weds. Sponsor permitted to give a brief introductory remark on the intent of the Bill. Motion to leave – usually passed without debate – once granted it is deemed to have received first reading Second Reading *** Most important Discussion of principle of the Bill takes place Before Debate – Sponsor will give a “fairly comprehensive” statement about the Bill. Why the Bill is needed, objectives of new policies and stakeholder consultation process. Committee as a Whole Chaired by the Chair of the Committee (not the speaker) Clause by Clause consideration of the Bill occurs Members may propose amendments – called “House Amendments”. a. Added if they do not add new principles or are not destructive of the principle that was approved in 2nd read Legislative counsel office drafts amendments proposed by the Gov’t Parliamentary counsel office drafts amendments by Opposition. ALL amendments must be approved by caucus and the Legislative Review committee. In some cases A&P and SPC Third Reading Bill is considered in its final form – length of debates depends on controversies of the bill. Royal Assent No Bill may become law without Royal Assent by Lieutenant Governor A Bill comes into force on Royal Assent if the Act doesn’t provide otherwise. Process of making a federal statute (Private Bills – designed to exempt a person or group from the application of the law, based on lobby - have a special procedure) 1) Issue that the federal gov’t needs to address 2) Determination about best instrument to address issue (assume leg here) 3) Following speech from the throne – Cabinet sends out call to Ministers and Agencies for legislative proposals 4) If cabinet agrees that the should be new (or amended) leg, lets ministry or agency which proposed it to prepare Memorandum to the Cabinet (MC) which includes: a. Need for and purpose of leg b. Consultation that has taken place c. Drafting instruction 19

LAP CANS

Fall, 2012
5) OR, a bill can originate as a Private Members Bill – usually from an MP who is not a minister. 6) Dept. of Justice separately drafts two bills in each official language (NOT translations) based on the drafting instructions 7) Draft bills sent to cabinet for approval, then to PM for official gov’t signature 8) Introduction of bill to either house, usually HC (except money bills (appropriation and tax bills) which must go to HC first a. First reading: Bill adopted without debate b. Second reading: Most important – bill is debated and either passed or defeated. 3 types of amendments may be proposed i. Hoist – Bill not read a 2nd time, postponed for 6 months ii. Reasoned – expresses specific reasons for opposing the bill iii. Amendments to refer bill to a standing committee – no 2nd reading now (appropriation bills go to Committee as a Whole (all members of HC)  Committee will hear from sponsoring Minister, may hear witnesses, considers the bill clause by clause, may propose amendments  Report stage: Committee reports bill to the House as amended, House may further amend (ie. reject Committee changes or make other changes) c. Third reading: final stage usually passed with only minor amendments (same types of amendments as at second reading). Bill could be referred back to committee for further consideration 9) Senate: Usually fairly fast 3 readings and only minor amendments (if any). Can go to senate committees. All subsequent amendments must be approved by the House. Absent approval, house adopts a motion stating why and tell Senate, try to work it out 10) Royal assent: Signing by the GG. (Michaelle Jean  David Johnson) All federal statutes require royal assent, Act comes into effect on Royal Assent unless stated otherwise. (Ex: retroactive, proclamation – given by an order of the GG in council, which is cabinet)

Subordinate Legislation
Federal Primary Legislation and Federal Subordinate Legislation 1) Primacy: Statutory Law trumps Common Law; Primary Legislation trumps Subordinate Legislation. 2) What are regulations? A diverse set of instruments that the government has available; see Regulations Act (p.427) and Interpretation Act (p.399) for definitions. 3) RIAS: Regulatory Impact Analysis Statement; considers the purpose and impact of a regulation; provides public notice regarding regulations. Two templates: a. Low Impact b. Medium/High Impact 4) What happens if a RIAS isn’t issued? RIAS is an administrative tool. Although it’s “required” some politicians may not issue one for political reasons. There may be political fallout. 5) Statutory instruments: broader than regulations. Includes regulations and other tools. 6) Statutory Instruments Act (Canada) (p.376): legislation has the sheen of protection, but is actually quite porous – ss. 3, 5, 8, 11,19, and 20. 7) Who can make regulations? Anyone to whom the Legislature has delegated authority. Generally, authority goes to the Lt. Governor in Council or to a Minister, but sometimes it goes to boards, commissions, councils, or individuals. Each of these entities can make a type 20

LAP CANS

Fall, 2012

of order: Lt. Governor – Orders in Council; Minister – Ministerial Orders; other entities – Board Orders. Whether or not these orders is a regulation depends on if it is of a ‘legislative nature’ Alberta Regulations 1) Is an Alberta Regulation lawful if not published in the Alberta Gazette? No, with the exception of group specific regulations. In those cases, the regulation is lawful so long as all members of the group have received notice. 2) The Regulations Act (Alberta) allows for broader exemptions than the Statutory Instruments Act (Canada). R.A. s.8(1)(g) allows the Lt. Gov. to exempt any regulations from the rules outlined in the Act. The S.I.A. allows for only specific exemptions. Important points about subordinate legislation 1) subordinate legislation can’t be grander (go beyond) than the parent legislation 2) subordinate legislation can’t offend (contrary) the parent legislation 3) rules of statutory interpretation apply to primary and subordinate legislation equally 4) A regulation must have a legal consequence to be law (be of a legislative nature). It doesn’t matter if the government calls it a law or a regulation. Without legal consequences, it isn’t a law. 5) Application of discretion is often an important part of regulatory law. WHO CAN MAKE REGULATIONS  Regulatory Authority is written in the Act.  Delegated authority must be exercised within the regulation itself.  delagata potestas non potest delegari = no delegated powers can be further delegated  Anyone who the Legislature has delegated authority to can make regulations.  Generally, authority goes to Lt. Governor in council or to a Minister, but sometimes it goes to boards, commissions, councils, or individuals.  Each of these entities can make a type of order. Whether or not these orders are a regulation depends on if it is of a “legislative nature”  Lt. Governor – Order in Council; Minister – Ministerial Orders; other entities – Board Orders.  Sub-delegation exception  “Merely administrative” regulations may lawfully be sub-delegated; matters are those that do not involve exercise of substantial amounts of discretion.  Omnibus Regulatory Clause: Authorizes the delegate to enact regulations ofor any matter considered “necessary or advisable to carry out effectively the intent and purpose of this Act” or any other matter [considered] necessary to carry out the intent of this Act. The effectiveness of broad grants of power varies.  Legislation done in public, regulations done behind closed doors  Micro: regulations/rules/orders/bylaws; not open for debate; authority given by Act  Federal regulations are governed by the Statutory Instruments Act  Alberta regulations are governed by the Regulations Act. FILE AND REGISTER REGULATIONS – Alberta (p. 58) Regulations Act  Alberta regulations need to be published in the Alberta Gazette unless the regulations are for a specific group. The regulation is lawful so long as all members of the group have received notice. Exception are by-laws. (S. 3 – Publication)  Register statements that are of law making (see regulation definition above) and in the nature of a rule governing conduct 21

LAP CANS
    

Fall, 2012

It is a regulation; does not matter what the Government calls it. What it does or its effect is the most important aspect. Lt. Governor may exempt any regulations from the rules outline in the Regulations Act (S. 8(1)(g). FEDERAL: Statutory Instruments Act (Canada) only allows for specific exemptions. Retroactivity: A regulation may have a retroactive effect only if it is expressly authorized Effective: a regulation needs to be filed before it can be in effect  After it is filed, you only need to receive notification of it (including C-train strangers) for it to be effective against you. Usually published in Alberta Gazette. C.S.A. OF A. V. FARRAN  RATIO: It has not been filed and promulgated as a Regulation under the Regulations Act the filing of which is a prerequisite to its effectiveness under S. 3 of the Regulations Act. It is, in my view, merely an internal document for the guidance of members of the Public Service.

SCRUTINIZING SUBORDINATE LEGISLATION  FEDERAL: Standing Joint Committee  Reviews all regulations made by Federal Government. Made up mostly of government in power at the time because they appoint the committee.  Good idea, but can possibly become political  PROVINCIAL: no committee in Alberta to review regulations made by Provincial Government. REPEAL  If an Act is repealed, doesn’t necessarily mean that the regulations made under it are also repealed.  The relevant Interpretation Act may save them if other powers to make regulations are substituted for the repealed Act  assuming those substituted provisions would authorize the existing regulations. Making Regulations - The Statutory Instruments Act and the Regulatory Policy govern the making of regulations - The Statutory Instruments Act established a process designed to ensure the regulations are made on a legally secure foundation and are Published in the Canada Gazette - Regulatory Policy establishes requirements for a regulatory impact analysis (RIA) as a means of ensuring that the governments regulatory activity serves the public interest - RIA also involves weighing the benefit of alternatives to regulation, and of alternative regulations, against their costs and focusing resources where they can do the most good What is the policy framework for regulations? - Provided by the Regulatory Policy of the Government of Canada - Regulatory authorities must ensure that: o Canadians are consulted and have an opportunity to participate in the process o Regulating is the best method o The benefits outweigh the cost to Canadians o Adverse impacts on the economy are minimized o International and intergovernmental agreements are respected o Regulatory resources are managed effectively, the standards are followed o Directives from concerning policy and law from cabinet are followed Summary of the regulatory process 1. development of a regulatory proposal by a department responsible for an enabling act or another delegated person/ body 2. central agency review (Privy council office, Treasury board secretariat, department of justice) 22

LAP CANS
3. 4. 5. 6. 7. 8. 9. pre-publication making or approval registration coming into force publication distribution parliamentary scrutiny

Fall, 2012

Who is involved in this process? o the authority that “makes” or “approves” the regulation  Governor general, cabinet committee, administrative agency o minister and officials in sponsoring department or officials in sponsoring agency o peoples in steps 2-9 about What documents are subject to the regulatory process? o described as regulations in an Act o rules, orders and regulations governing the practice or procedure in proceedings before a judicial or quasi-judicial body established by or under an Act o statutory instruments made in the excise of a legislative power conferred by or under an act o statutory instruments for the contravention of which is a penalty, fine or imprisonment is prescribed by or under the act o some regulations are not subject to the regulatory process, exempt by enabling act or SI regulations Conception and development of regulations - justification is required for the making of regulations - a problem or risk must exist and regulation should be the best option - the sponsoring department or agency must assess all possible solutions before deciding to make a regulation - if it concluded that a regulation should be pursued it must initiate a process of planning, analysis and public consultation in accordance with the Regulatory Policy - Notice of proposed major regulations are given in departmental and agency annual reports on plans and priorities submitted to parliament - The department/ agency then drafts its regulatory proposal Regulatory Impact Analysis Statement - Mandatory analysis of the expected impact of the regulation, gives Canadians an opportunity to comment on upcoming regulations. - Summarized in a Regulatory Impact Analysis Statement (RIAS) o A public accounting of the need for each regulation in terms of this policy Regulatory Impact Analysis (RIAS) Process - Not part of the regulation, but goes through issue prescribing regulation, costs/benefit analysis of regulation, objectives, description, etc. very transparent federal government policy to have RIAS- if not included, you could regulation for improper process. RIAS explains: ******* - elements of regulatory proposal, what it addresses, what it is meant to achieve, why government intervention is needed - description & rationale: alternatives that have been considered & anticipated costs and benefits

23

LAP CANS
-

Fall, 2012

consultations that have been carried out, opportunities for Canadians to be heard on this matter response of the department/ agency to concerns and suggestions Implementation, enforcement, and service standards: mechanisms built in to ensure compliance with regulations & how the performance will be monitored

Limits on Delegation
Limits on the Exercise of Delegated Authority Government enacts statutes (both provincially and federally) Is the source of authority found in a statute? Statutes typically set out rules or prescribe behaviour. Ask yourself if authority has been allowed in the legislation itself? When a legislature is drafting rules, the issue will always be what was the legislator’s intention? This will affect the interpretation of the legislation. Once you have determined legislation is being enacted by a delegate, ask who is the delegate (a regulatory body, cabinet, minister, or other civil servants)? Does that delegate have the authority to make that decision? Statutory delegates do not have inherent authority, must be based on the enabling statute. • Pg. 65- Does the Municipality have the authority to enact a bylaw in relation to the establishment and licensing of kennels? No. If delegate does have appropriate authority, classify the exercise of power. What exactly is the statutory delegation? Is this a Statutory Instrument, is it law? If so, is it a regulation? Go to Statutory Instrument Act (pg 376) for definition of a regulation. 2 ways an instrument becomes a regulation: • Whether or not there is a penalty prescribed in Act for contravening; • Made in the exercise of a legislative power. How public authority is categorized: - legislative - judicial decision-making - administrative authority- typically the implementation of legislation. Whether something is a regulation matters because if it is, there is a legislative process that follows. Authority for Regulation first find where rule is located if it’s not there, see if it has been delegated to some other legislator Policy drives regulation - 1st thing that happens is policy , a person, group has an issue, tells government that it is bothering them and then government makes standing committee on policy - 1st thing is to draft a policy document – and issue it as a ministerial bulletin

24

LAP CANS
-

Fall, 2012

in the case that they feel that problem won’t be solved by policy alone they will send policy document to legislative office - policy drives legislation event  people becoming concerned  write to minister demanding a new law  policy group formed  consult with stakeholders etc  make up gigantic pile of info, identify key concerns, conceptual approach that should be taken  handed over to legislation group

Introduction to Drafting Guest Lecture: Peter Pagano
- Options other than legislation for public policy – legislation can take a long time to pass - Primary and Subordinate legislation – subordinate takes its power from the primary - Regulations are “law-making” subordinate legislation - Interpretation Act – for definition of “regulations” - Goal of creating legislation: Give legal effect to policy in a way that clearly communicates the policy to the people affected by it and those administering it Government Process - “Call” for legislation – what bills will be proposed for Fall and Spring sittings - Minister/Department – creates legislative proposal – brief 2 pages - Agenda and Priorities Committee (if required) – cabinet committee – Minister must create policy doc (more detailed) - Cabinet is informed - Cabinet policy committee – closely reviews policy implications and details of bill - Caucus – all gov’t MLAs review and big issues addressed - Legislative Review Committee – Min of Justice chairs – final draft created – all major issues must be addressed - Introduction to House Drafting Legislation - Client department – prepares drafting instructions, works with drafter to answer policy questions - Client lawyer – advises on legislative and non-legislative solutions, assists with legal aspects of policy development - Legislative counsel (drafter) – asks questions to get at intent of legislation, drafts in clear unambiguous language Passing a Bill - 1st reading – short, one paragraph - 2nd reading – major debate - *Policy Field Committees – may be referred to, in order to review and make a report to assembly - Committee of the whole – word-by-word reading – no changes outside principles - 3rd reading – whole new debate - Royal Assent – lieutenant governor Regulations - Filing and publishing – Regulations Act applies if it is a regulation AND of a legislative nature – must be filed as a regulation and published - To make a regulation – Lieutenant Governor in Council (Order in Council) – Minister (Ministerial Order) – Other (Board Order, etc.)     Graduate of the NB law school Graduate studies at U of Ottawa Chief Legislative Counsel – does all the drafting and preparation of legislation and gives advice to government Part of the Department of Justice 25

LAP CANS
o 9 lawyers o Drafting all government bills and regulations Each province has a similar office o Differences  Some provide advice to Legislative Assembly Throughout the commonwealth, there are similar offices of legislative counsel o Some are part of the premier offices o Some are independent o Some are part of the department of justice

Fall, 2012

 

GUIDE TO THE LEGISLATIVE PROCESS “There are two things you should never see being made – sausages and laws” – Otto von Bismarck 1815-1898 TO LEGISLATE OR NOT TO LEGISLATE  First question: how do we accomplish what we want to do o Most legislation is put into place to get people to change behaviour, stop behaviour, or get people to do a behaviour  Do not need to legislate all the time. Can change behaviour by taxes, fees, education  Last spring only 16 bills passed last year  Usually 45-55 bills passed per year  450 statutes in Alberta 2 TYPES OF LEGISLATION  Primary: acts and statutes o Enacted by the legislature  Subordinate or delegated: regulations o Regulations made pursuant to statutes o Need statutory authority to make a regulation (subordinate legislation) WHAT DOES LEGISLATION DO?  Legislation: o states  Obligations: things you have to do  Prohibitions: things you’re not allowed to do  Rights: give or take away rights  Immunities o sets the boundaries of social conduct – THE BIG PICTURE  subject to the constitution, the legislature and parliament can generally do whatever they want to do GOALS OF THE LEGISLATIVE PROCESS  to create a piece of legislation that gives legal effect to government policy in a form that clearly communicates the policy to: o the persons whose rights, duties, and powers are affected by the legislation, and o the persons responsible for administering it o 40-50 years ago, legislation was harder to read. One sentence would be a whole page o 20 years ago, it started to be better  when you’re drafting you need to keep in mind your audience – who are you drafting for? o you’ve got to write it in a way that’s understandable o Sometimes you’ve got a particular group involved which may require technical language o You may have legislation that is aimed at the people who administer or enforce it o i.e. if it’s for administration, put the administration stuff near the top 26

LAP CANS
o

Fall, 2012

i.e. conflicts of interest legislation – all the obligations that MLAs and rules they must follow re: conflict of interest o second part of the act is for the people who enforce this act o do we put the administration at the top and the rules at the end? Or vice versa? o Put the rules for the MLAs at the top because we want to see the MLAs obey it and the public be able to easily find it  Make these decisions with the help of the client department o 70-80 people in the Department of Justice in the client department o He drafts for the Crown in the Right of Alberta, not for the clients  The question is if this is good government law? Not if you’re making the individual lawyers happy  One of the major functions of a drafter: the drafter is responsible for all of the statutes o Consistent use of terminology – is the way I use this term in legislation going to affect the way someone understands the term in another piece of legislation? o This is called “guarding the statute” THE GOVERNMENT PROCESS: THE “CALL” FOR LEGISLATION  This process is for bills  Each year, the government house leader writes to each minister advising them to send in their proposals for legislation for the upcoming fall and following spring sittings o This does not apply to the oppositions  This letter comes out around June  They only have a month to complete the necessary documentation – 2 page summary  This will be for legislation that will arise in Fall 2010 and Spring 2011 THE GOVERNMENT PROCESS  Call for Legislation o 2 page summary o specific questions asked on “call”  is it controversial?  does it follow current policy?  what's it going to cost?  who's going to be impacted?  will there be consultation? when?  will there be opposition?  Minister/Department o where the original proposal will be brought forward following the call for legislation  Agenda & Priorities Committee (if required) o Made up of mostly cabinet ministers, but sometimes MLA’s; “inner cabinet”) o the most senior and influential ministers o they look at the big picture o if it's a fairly significant policy, they're going to require a Minister's Report by the department  encouraged to do at least a year in advance o referred to A&P (acts and punt) o if you don't get through this committee it doesn't go anywhere o will advise cabinet on what's being proposed and the timetables  Cabinet 27

LAP CANS

Fall, 2012

o "the Boss"  Cabinet Policy Committee o there are 5 Cabinet Policy Committees o in 1993 - they were called standing policy committees  consisted of government MLAs (not opposition) o the documentation is very detailed  departments will provide more detailed documents on the legislation  each department has own committee  this is done in a specified form  reasons for what you're proposing  what you're proposing  the current situation o meet throughout the year  dealing with proposals currently for this fall and next spring sittings  Caucus o this is for all the government MLAs o meet and review all the documentation in the A&P and the "three column documents" from the cabinet policy committee o very influential regarding what government policy will be o once the draft is complete it goes to the Legislative Review Committee o so far the bill has still not been introduced in the house  Legislative Review Committee o made up of the chairs of the policy committee o Minister of Justice - chair of the committee o government house leader is on there o 3 other MLAs who don't hold any other office, but who have been put on this committee o the drafter will take them through the draft: "this section is based on this policy of the government" o does the draft reflect policy of the government? o highlight what is offside of the policy for the government o why are the documents still vague at this point?  to give more time to sort out the legal issues or leave room for policy changes  Introduction in the House/Assembly o once the initial drafting is complete, then a political decision is made as to when it will be introduced PREPARING LEGISLATION: ROLES & RESPONSIBILITIES  client department: develops legislative policy  client’s lawyer o provides legal advice while the policy is being developed o one policy may create some kind of legal issue o knowing about this may lead to a change in the legislation  legislative counsel: drafts government bills and regulations CLIENT DEPARMENT  contact person/instructing officer o you want to have direction from one person – this is that person o if the drafter had 5 different people instructing him, then he might not know what is best  preparing drafting instructions o ask departments to be specific in their instructions 28

LAP CANS

Fall, 2012

 ask them for their objective of the instruction  contents of drafting instructions o background information is very helpful o is it a result of a court case? Tell us o did you borrow this from Ontario? Tell us o is this based on a report? Tell us o what are you trying to accomplish o the more information, the better you can do the job  form of instructions o when you’re in a hurry, it can be around a table and the drafter is taking notes and you put something together o the feds talk about it a lot o war rooms: think Wolfe Blitzer with a whole bunch of screens talking to a whole bunch of ministers in various locales with the drafter taking notes based on this o the clearer the instructions, the better the drafting will be o sometimes the lawyer wants to do the draft, so they may give their instructions in the form of a draft  issue with this is you may misinterpret the draft o one of the other problems when dealing with instructions from a draft – when you circulate the drafted form, people tend to wordsmith the document – they forget the policy and they just look at the words CLIENT’S LAWYER  advises on legislative or non-legislative solutions  assist with legal aspects of policy development o every policy is going to have a legal implication – is it going to work out?  assess the practicability of the scheme LEGISLATIVE COUNSEL (DRAFTER)  specific responsibilities o issues may not have been thought through, so we’re there as a check and balance  What kinds of offences are necessary?  Audience?  Remedies/Fines?  Constitutional issues?  Freedom of information and privacy issues?  Are there financial issues?  Discrimination?  Terminology?  Structure?  Reverse onus on prosecution is being proposed?  It’s a policy decision when the legislation shall take place o Transitional issues are a big thing that the government forgets to deal with  How do you transition from old legislation to new legislation  Interpretation Act helps to deal with some of these transitional issues  at what stage should legislative counsel be involved? o Once A&P has said “yes this a go” – if the department has done its homework, they may be able to give drafting instructions and the drafting can start o On huge projects, drafting may start earlier  When does drafting commence? o As soon as you get instructions QUESTIONS TO KEEP IN MIND  These questions can apply to contracts too 29

LAP CANS
 

Fall, 2012

Dreger’s construction of legislation is what the SCC still relies on After you’ve written your provision, ask these questions to make sure that your provision accomplishes what you want o Who, What, Where, When, Why o How, How much o If, If not o But o As many questions as you can ask. Test draft to see if it accomplishes what you want. LEGISLATIVE DRAFTING (PRINCIPLES)  Logical (in organization)  Clear & concise  Present tense (the law is always speaking)  Audience specific (may change the terminology and structure and organization of the act)  Gender neutral (in 2000, everything was changed to gender neutral except the word “foreman”) o Repeat the noun to avoid the issue  Consistent use of terms o This is so important regarding statutory interpretation o If you want to use a different meaning, use a different word PASSING A BILL IN THE LEGISLATURE  First Reading o Just a tabling, no debate  Second Reading o Where all the debate takes place o Most important part in the whole process o Assembly approves the principles of the legislation  Committee of the Whole o Make physical changes to the bill o You can start changing the words o Beware that the changes you make don’t run contrary to the principles of the bill, including adding new principles (you can’t do that!)  Third Reading o Up to third reading, it’s only been an approval of the assembly  Royal Assent o Assent by the Lieutenant Governor o A bill once passed is called an Act of the Legislature (including the assembly and the Lieutenant Governor?)  * Policy Field Committees (PFC) o Made up of representatives of all the parties o Committees of the assembly o Recommend changes in the policy or principles 3 TYPES OF BILLS  Government / Public (the one’s he drafts)  Private members public bills o Members of the assembly have an inherent right to introduce legislation o This legislation is not government policy legislation o Usually opposition members who introduce these bills because they don’t have another forum, but it can be both o Since 1993 – there’s been about 50 of them o i.e. the no smoking indoors bill 30

LAP CANS

Fall, 2012

Private bills o Legislation proposed by individuals, corporations, organizations to have a law passed that only applies to them o Usually ends up being something that they feel like they don’t have to comply with in an existing act o Petition process involved through the Alberta Gazette  You need an MLA to sponsor it  Different committee structure than the one mentioned earlier REGULATIONS  Regulations allow you to adjust with the times quickly, whereas primary legislation can move slowly  Who can make Regulations?  What can a Regulation contain?  Process for passing a Regulation  Filing and publishing o Up until 1957: there was no requirement for publishing  Retroactive Regulations  Regulatory Review Secretariat **IMPLICATIONS FOR NOT FILING OR PUBLISHING A REGULATION  If it’s a law-making regulation (if there’s consequences with non-compliance/of a legislativenature) then it must be published  If in doubt, file  If you don’t file, it’s of no force or effect  Even if you file it, and don’t publish it – it’s still effective, but only against people who have notice of it INSTRUMENTS TO MAKE REGULATIONS  Orders in Council  Ministerial Orders COMING INTO FORCE  On Royal Assent: if it’s silent, then it comes into force on the beginning of the date of Royal Assent o i.e. 11:50PM on January 1st is effective 12:00AM on January 1st  On Proclamation: there might be regulations that still have to be drafted (no time limit to proclaim something) o To proclaim it, you can have different sections come into force at different times (“selective proclamation” o i.e. SCC reference case – everything but the breathalyzer clause was enacted  parliament passed this legislation, it would be undoing parliament’s wishes  it was very close  this was 1969  if parliament doesn’t like the results, then they shouldn’t be doing this o there is still some stuff from the 1970s that hasn’t been proclaimed yet o in some commonwealth countries, after a certain period of time, if it hasn’t been proclaimed yet, it’s either repealed or automatically proclaimed o how a proclamation is issued  order in council is made by the cabinet that a proclamation be made  lieutenant governor issues a proclamation  On a specified future date  Retroactively: as long as the statute expresses it  Can do a combination where some sections come into force retroactively, others on proclamation, others on a future date, etc 31

LAP CANS

Fall, 2012

This is the most common question he gets from the public – when did this act come into force?

Drafting
Organization & Legislative Sentences Definitions Paragraphing

Introduction to Legislative (Statutory) Interpretation
A major part of dealing with legislation is trying to determine the intention of the legislature in drafting that particular legislation. Objective: determine the intent of Legislature. Impediments: a) Language is general and imprecise – therefore, difficulties inevitable. b) Legislative body of person not one state of mind – composite numerous individuals – compromise and accommodation ruling practice. c) All possible factual scenarios impossible to conceive – therefore, result imperfect. d) Legislation often issued full knowledge problematic – let courts work context. Two basic schools with respect to the interpretation of legislation: A. Literalists i. Courts not law-makers. Courts should stay out of broadening the meaning of legislation. It is undemocratic. ii. Relaxed approach leads to uncertainty and inequity. iii. Public interest served by strict approach. The public wants certainty in law. Law are made by elected officials, not appointed officials. B. Non-Literalists i. Purposive approach – beyond strictness language essential – flexibility key. ii. Legislature and judicial arm work together – achieve just results – partnership. iii. Discretionary features essential and in public interest – excess not part of the formula. Determining the Intent of the Legislature Statutory enactments are not always clear and certain for a variety of reasons. Uncertainties exist because the human being is a flexible creature, who has developed flexible language to best suit his needs and who can unfailingly create new situations to challenge old rules. It is generally accepted now that statutes are not clean and certain and that statutory interpretation is both necessary and legitimate. Some problems are: 1. Language is an uncertain tool, therefore difficulties are inevitable. 2. Conditions in society change. Legislative body of many people is not one state of mind. This requires compromise, accommodation in the ruling practice. 3. Legislators deliberately use general language because they cannot all agree or because they do not have time to work out problems or because general guidelines seem the best way to handle the situation. All possible factual situations are impossible to conceive. Unforeseen situations arise no matter how carefully thought-out the legislation. The result is imperfection.

32

LAP CANS

Fall, 2012

4. Infelicitous language is used through carelessness or because the drafters are in a hurry. Legislation is often issued with full knowledge that it ay be problematic. The courts are used to work this to. The purpose of statutory interpretation is to discover the "intention of the legislature" rather than impose the judge's own views on the statute. One must be careful when talking about the intention of the legislature because it is impossible to discover the intention of the legislature in any subjective sense and is dangerous to think that is what the court should do. Federal Statutory Interpretation Act • Regulations mean statutory instruments (s.2(1)) • Made in the exercise of a legislative power conferred by or under an Act of Parliament • For the contravention of which a penalty, fine or imprisonment is prescribed by or under the Act of Parliament And includes a rule, order, or regulation governing the practice or procedure. • Statutory Instrument means any rule, order, regulation, ordinance, direction, form, tariff, of costs or fees, letters patent, by-law resolution or other instruments issued, made or established. • In the execution of a power conferred by or under an Act of Parliament by or under which that instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions.

General Approach to Interpretation
Courts are using these tools to achieve a “desired result” – John Willis Ruth Sullivan – The Modern Approach is a new paradigm. Critique of Willis. Questionable whether her argument is sound. The Literal Approach The plain meaning approach: Intention of the Legislation best discovered by “plain words alone.” Words are to be given plain and ordinary meaning whatever the consequences. Object or purpose of act not a consideration (Sussex Peerage, 1844). Reaction to the Mischief Approach. 1) Literalists a. Courts aren’t lawmakers b. Use the literal words, and don’t go beyond the plain meaning of the words c. A relaxed approach leads to inequity d. Public wants certainty, this is the best way to get it. Legislature should make the law, not the courts 2) Non-literalists a. Purposive approach: not so strict; give the courts a bit more flexibility b. Legislature and judiciary should be a partnership c. Discretion is important for the public interest The Mischief Approach The purposive approach: a statute is to be construed to suppress the mischief and advance the remedy. Intention of the Legislation may be achieved by consideration of object or purpose of the statute (Heydons Case, 1584). The Golden Rule Approach The intention of the Legislation to be determined on plain and ordinary meaning of the words alone (Literal Approach) except where that leads to absurdity, repugnance, or inconsistency in which case

33

LAP CANS

Fall, 2012

the ordinary meaning of those words may be modified to avoid that absurdity (Grey v. Pearson, 1857). A relaxation of the Literal Approach. The Modern Approach (Rizzo Shoes; Bell Canada; United Taxi) Post-realism (Driedger) Following Rizzo Shoes, this is the court’s preferred approach, and applies to all jurisdictions in Canada (unanimous judgment by the SCC, reasons by Iacobucci).

Specific Aids: Context (Language Aids)
CONTEXT  It has always been accepted that the words of the statute, including headers, form essential parts of the internal context – CB 217 preamble  Not correct. Some say yes, some say no.  Interpretation Act (AB): S. 12(2) In an enactment (a) tables of contents (b) marginal notes and section headers and (c) statutory citations after the end of a section or schedule are not part of the enactment, but are inserted for convenience of reference only  Interpretation Act (Canada): S. 14 Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only (no mention of headers) Ejusdem Generis or the General Principle: A general word OR phrase takes its colour from words that follow it OR proceed it (not just one). Limitations of the Principle: o 1) If specific words don’t have similar characteristics that provide a common background it is not possible for them to give meaning to general words. o 2) If the specific words exhaust the genus, then the general words must have some other meaning. The meaning has to come from your list; if there are no other words that could be used then the meaning must be something beyond the genus. RULES OF CONSTRUCTION – to use in “Golden Rule” arguments  General words that are included with some specific words will take its colour from them.  If other words in the list do not have similar characteristics that give them a common sense, there is no “colour” for other general words to take on.  If the particular words exhaust the whole genus the general words which follow must refers to some larger genus and are not to be construed as restrictive: Grini v. Grini

External Context
Social One of the best examples is the Persons Case, where in 1924, Lord Sankey coined the phrase “the Living tree” in reference to the proposition that the Constitution must adapt to changing circumstances. In this case, women were not considered “person” until the famous five achieved women a proper status and the right to vote. They looked at the broad approach of the society in general. Looked at the role of women in society. Social context has become particularly important in Charter analysis, especially in relation to s.1. The Court’s willingness to consider extrinsic material in order to understand Parliament’s reasons for enacting provisions that infringe the Charter is viewed positively in the R. v. Oakes Case Legal and Common Law One of the most useful pieces of context for an interpreter is other legislation in the area, either past or present. 34

LAP CANS

Fall, 2012

2 streams of legal context: a) Legislative (Parliamentary) history – what happened in the legislature; b) Other legislation in the area (pari materia) – what happened to statutes (the evolution of the Criminal Code, for example) Legal Context R. v. Popovic and Askov (250) (1975), 25 C.C.C. (2d) 161 (S.C.C.) Issue: How should the court interpret the word “burglary”? Analysis: Def’s were charged w/ constructive murder; if you killed someone while committing a specified offence (burglary, arson, robbery are examples). The issue: burglary must be of a residence, not a restaurant; therefore, not burglary under s.213 CC. Court went back and reviewed the evolution of the Criminal Code in order to interpret the word. Main Principles: For interpretive purpose, a court may go back over all statutory foundations and antecedents in order to reach a proper interpretation. Statutes and Pari Materia: Legal context and use of other statutes 1) You’ve got a variety of statutes/legislation (in the Criminal Code, there is other legislation that is pari material to the Code, for example). Same class of material. 2) There are many areas that have multiple pieces of legislation governing persons or issues. So, you’ll want to know: any other legislation that’s helpful? Example: Capital Growers case; Land Titles Act isn’t mentioned in the Community Planning Act, but it’s related, so there’s pari materia. Example of this in s.15(2)(b) – Federal Interpretation Act: 15(2) Where an enactment contains an interpretation section or provision, it shall be read and construed (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears. Extrinsic Material Shift re: use of extrinsic materials. Before: intention of legislation used to be made up (Willis); now, we can use extrinsic materials (Hansard and others); shift started in 1979.  Hansard was considered the worst: too politicized. Other reports and other documents that came out of Parliament were also allowed in.  Re: Section 94(2) of the Motor Vehicle Act (1985) – Senate and House Committee Proceedings Debates in – Constitutional case, allowed in but little weight  R. v. Sullivan (1991) – House committee debates in – Non Constitutional, allowed in but only some weight.  R. v. Heywood (1994) – Hansard in - Constitutional, little weight  R. v. Morgentaler (1993) – Hansard in - Constitutional, limited weight  Re: Rizzo and Rizzo Shoes (1998) – ultimate for our class. Not constitutional, applies Morgentaler, allows admission, extraneous (all potentially available), weight is qualified (see p. 185, para. 34 & 35). Hansard, Commission and Senate Reports, White Papers and others all in.

35

LAP CANS

Fall, 2012

Presumptions
Retroactivity From Driedger: “A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only; it is prospective, but it imposes new results in respect to a past event. (280)” Questions to ask: o For retroactivity: “Is there anything in the statute to indicate that it must be deemed to be the law as of a time prior to its enactment?” o For restrospectivity: “Is there anything in the state to indicate that the consequences of a prior event are changed, not for time before its enactment, but henceforth from the time of enactment, or from the time of its commencement if that should be later?” (Driedger) Presumption against retroactive application of legislation: “For a statute to have retroactive application normally it must be clear from the words of the statute itself that Legislature intended retroactive application. (282)” - Reason for this presumption: people need fair notice. - Exception: purely procedural provisions aren’t immune to presumption against retroactive operation. - Exception: when the purpose of the provision is for the public good. - NOTE: NO PRESUMPTION AGAINST RETROSPECTIVE LEGISLATION Summary: Retroactive: changes the law in the past. “Deemed in force”, the law then comes into force on a past date. Retrospective: doesn’t change the law in the past; simply impacts, into the future based on past events. On its face: if it reaches back and STATES something is the law in the past, then that’s retroactive. Vested Rights Presumption against interference with vested rights: “… Legislature does not intend to take away or diminish vested rights. To rebut the presumption, legislation must clearly express the intention to take away or diminish vested rights. (282)” Against Substantial Alteration - “the legislature does NOT intend to make any substantial alteration of the law beyond what it explicitly declares, either in express terms or by clear implication.” - makes a change w/out addressing entire common law in a field is assumed to not rule out that preexisting common law - where a statute does NOT say it is overruling common law, then the common law is considered to remain extant (where it is not mentioned in the common law) - statutes are NOT considered to be complete codes/bodies of law - statutes are assumed to change common law to only the minimum extent required – all the rest of an area of common law remains extant Expressio unius exclusion alterius: if the legislature went through the trouble of explicitly mentioning one person or thing, it is at the same time specifically choosing to exclude others p 215.

36

LAP CANS

Fall, 2012

Tests

37

LAP CANS

Fall, 2012

Charts
RULES OF CONSTRUCTION Rizzo Shoes Employees terminated due (1998) to bankruptcy. Does the term “employee have their employment terminated by an employer” include this scenario, such that they have right to severance? Modern Principle (para. 21) – Need to look at grammatical, context, and object and intent of legislature (used purposive/context approach) Interpretation Act (para. 22) – Need to look at the overall intent of the Act Golden Rule (para. 27) – Doesn’t make sense that employees terminated the day before would get severance but those that were terminated after bankruptcy wouldn’t Legislative History (para. 31) – Valid interpretation tool – used to show intent of applying to bankrupt employers Extrinsic Evidence (para. 34/35) – Admissible as per Morgentaler Scheme was Benefit Conferring (para. 36) – Should be interpreted in a broad and generous manner Modern Principle – Court’s preferred approach – focus on grammatical and ordinary sense Interpretation Act – Buttresses modern principle Pari Materia – Mentioned that need consistency between statutes Ambiguity – Other principles of interpretation only used when “true ambiguity” – ambiguity when “reasonably capable of more than one meaning” Charter – Charter arguments only if ambiguity Modern Approach - Modern principle as “contextual” approach – bound to consider intent of the legislation – purposive approach Interpretation Act – Purposive approach is consistent with the Interpretation Act Internal Context – Sections, when read together indicate broad authority, with one section only indicating examples of powers Literal Meaning – If natural and ordinary meaning is independent of context, can interpret without reference to context Context – Words to be read in the context of the whole provision, statute and subject matter – tour buses are not included in the exceptions Purpose – Purpose was to grant a monopoly Internal Context – 1. Similar or the very same language in the same act may be given a different interpretation by the courts 2. The interpretation of legislation can turn on the facts – in one case a word may be given one meaning – the same word in another case may have a different meaning 3. Interpretive decisions are not invariably sound as to logic and common sense 38

Bell ExpressVu (2002)

Rex was decoding satellite to provide to Canadian subscribers. Bell was licensed by CRTC to do so. Does 9(1)(c) prohibit all decoding?

United Taxi II (2004)

Regarding Taxi licenses. Do municipalities have power to regulate number of licenses?

TTC (1985) Pre-Rizzo

City Tours was operating a bus tour. TTC had monopoly over ‘local passenger service’. Does City Tours constitute a local passenger serve? Divorce issue. Wants maintenance. What is the meaning of “upon granting a degree nisi?”

Zacks (1973) Pre-Rizzo

LAP CANS

Fall, 2012
4. What the result will be of the interpretation is critical, often in driving the interpretation

INTERNAL CONTEXT – Literary/Non-Literary Wiggleworth Use of “criminal offence” in (1987) the Bill of Rights and “offence” in the Charter. Was “offence” intended to protect rights under criminal offences and quasicrimes under provincial and federal legislation? Nanaimo v. City ordered Rascal to take Rascal down a mound of dirt. Was Trucking a mound of dirt something (2000) that would be included as a “building, structure or erection of any kind, … watercourses…” or “other matter or thing”? Grini Mother and daughter want (1974) ex-husband to continue paying maintenance, given that she cannot pay for herself since she is going to school. Does the phrase “by reason of illness, disability or other cause” include education? Strahl Charged under the young (1967) offenders act, challenges deprivation of motorvehicle privileges. Does “impose upon the delinquent such further or other conditions as may be deemed advisable” include revoking driving privileges? EXTERNAL CONTEXT Oakes Challenging reverse onus for (1986) drug trafficking. Popovic Whether burglary can occur (1975) at a restaurant or only a dwelling-house.

Marginal Notes – While not an integral part of the Charter, can be given some consideration in statutory interpretation Headings – Integral part of the Charter and therefore have greater weight as tools

Modern Principle – Rizzo Shoes Ejusdem Generis – Rascal argued that “other matter or thing” applied to the watercourses listed before (i.e. that is the genus) – Nanaimo argued that “other matter or thing” was intended to stand apart – Court finds extended “constructed or erected things, and watercourses”, but did not extend to everything… soil was an erection Ejusdem Generis – Ejusdem generis doesn’t apply to “or other cause” since illness and disability exhaust the genus.

Ejusdem Generis – Is argued that ejusdem should be used to limit the conditions based on the previous paragraphs. Court decides that ejusdem does not apply, using a purposive approach that the judge should be able to impose a variety of sentences.

Capital Growers (1953)

Fisher v. Bell

Whether the registrar could refuse to register a title that didn’t meet the requirements of the Community Planning Act. Whether a knife displayed in

Social Context/Commission and Senate Reports – Social context data may be admissible Legal Context/Legislative History – Can look back at history of provisions to determine interpretation – burglary could only occur at a dwelling-house French Version – Can look at French version to interpret English meaning Pari Materia – Statutes must make sense together and must be interpreted to be working together – found that the registrar was able to refuse to register title Common Law – Common Law can be used to 39

LAP CANS
(1960) a window was an illegal offer for sale.

Fall, 2012
interpret – In contracts, display of price is an invitation to treat and not an offer, therefore wasn’t offering the knife for sale Presumptions 1. It is presumed that the legislature does not intend new legislation to be given a retroactive application – unless there is specific language saying so (in force provision) 2. It is presumed that the legislature does not intend to interfere with vested rights – can be rebutted if the legislation indicates that vested rights are to be interfered with 3. There is no presumption against the retrospective or immediate application of legislation - Based on language “where prior to coming into force of this section”, court finds was intended to be retrospective, which overcame his vested right Vested Rights 1. A right will be a vested right when the legal situation is sufficiently constituted at the time of the commencement of the legislation 2. Right must be tangible, concrete and distinct 3. Must be a right of the specific individual – not a community or class right 4. In contract law, the rights only arise at the time of the contract - Language “juridical situations in progress” was not found to be retrospective enough to interfere with the students’ vested rights Procedural Exception – Presumption against retroactivity does not apply to purely procedural legislation Procedural Exception – Presumption against retroactivity does not apply to purely procedural legislation - Found that the right to take civil action or the right to not be liable to civil action is not a purely procedural provision – therefore, presumption holds and cannot rely on new version of statute Public Good Exception – Presumption against retroactivity does not apply to legislation for the public good - Since the provision was for the protection of the public, not as punishment for the action, was found that the presumption does not apply

PRESUMPTIONS Mandavia Injury to Mandavia. Decides (2005) to retire under the belief that will get benefits. Agreement with employer. Legislation comes out limiting to ending in 1995. Does the Act operate retrospectively so as to include his agreement?

Dikranian (2005)

Class action against Quebec. Students had loan agreements with Banks. Government changes how long they will pay interest for. Does the Act operate retrospectively so as to apply to the students’ contracts?

Stevens (1988) Angus (1988) Wife wants to sue husband for injuries sustained while he was driving. Old law said couldn’t sue husband. Provisions were repealed. Can the wife rely on the new law to sue for injuries? Brosseau was issuing false prospecti and was ordered to stop trading under an Act issued after the false prospectus was issued. Can Brosseau be prosecuted under the new Act for past actions? Wener wants to sue Dickenson for stealing her husband. Domestic

Brosseau (1989)

Wener (1972)

Presumption Against Alteration of the Common Law – Unless it is clear that legislation is intended as a code, replacing the common law, it is assumed 40

LAP CANS
Relations Act provides right for husband of same. Is there a common law right to action for a wife? SCC wouldn’t interpret something in favour of the accused, given the lack of ambiguity

Fall, 2012
that the common law still exists to fill in the gaps - Found to not have been intended to be a code, and the common law right to sue still existed Presumption of Strict Construction – Only when there is ambiguity (as per Bell)

The King v. Robinson (1951)

FEDERAL & PROVINCIAL LEGISLATIVE PROCESSES ~ Primary Legislation ~ FEDERAL GOVERNMENT Handled in Cabinet Sources: - Party platform (Red Book) - Speech from the Throne - Budget - Proposals from individual ministers & public service Call for Immediately after the Speech from the throne, legislation Assistant Secretary to the Cabinet writes to all (Request for Deputy Ministers asking them to submit a list of proposals) the leg that their Minister plans to propose to Cabinet in the next session Who brings Cabinet Minister forward proposal Decision to Cabinet decides Legislate - Minister of Justice (Attorney General) advises (will it be as to whether legislation is needed introduced as part of leg program?) Proposal Memorandum to Cabinet format - Analyse the matter & alternative solutions - Consultation with interested parties - Impact of proposed solution - Required resources, including for implementation & enforcement Who Cabinet committee that deals with specific considers subject matter (and Cabinet rejects or accepts proposal decision) Who drafts Department of Justice (drafting doesn’t begin the bill? until Cabinet has approved the proposal) Policy Issues PROVINCIAL GOVERNMENT Agenda & Priorities Committee (A&P)

Lieutenant Governor writes to his ministers and gives them deadlines to submit proposals for legislation.

Minister of Legislature

A&P Committee decides - Famous for slashing legislation proposals

3 Column document - Current situation - What’s proposed - Reasons for it

Cabinet as a whole

Legislative Counsel Office (drafting commences once A&P has approved a proposal) Who reviews Standing Committee called Legislation and House Standing Policy Committees draft bills? Planning Committee = Chaired by MLA with 8-10 members of govt Then who Leader of the Government in the House Caucus (all govt members) 41

LAP CANS
reviews? Who does Cabinet – then PM signs final review? Legislative Process

Fall, 2012

Legislative Review Committee

First Reading Second Reading In depth Sub-committee examination of the bill

3 readings in each of the 2 houses Only 1 house Money bills must be introduced by House of Commons (s.53, Constitution Act 1867) Reading of title & maybe a couple of sentences Same Big Debate Same Committee of the Whole – committee of all members of legislative assembly (not sitting as assembly but as committee -–less formal, no Speaker). This is where the opportunity for amendments takes place Same

Third Reading Intro in other house Royal Assent

Final approval

Same process in either Senate or House of Not applicable Commons Governor General Lieutenant Governor FEDERAL & PROVINCIAL LEGISLATIVE PROCESSES ~ Subordinate Legislation ~ FEDERAL GOVERNMENT PROVINCIAL GOVERNMENT The Regulatory Plan (formerly Regulatory Regulations Policy – SM 100 Agenda) - group responsible for the Policy is the SCC, supported by the PCO Statutory Instruments Act Regulations Act

Policy framework for making regulations Government Act (where requirement s are listed) Definition of Instrument/ Enactment (does the Act apply?) Authority to make regulation? Notice of intent (to create regulation)

Statutory instrument - magic formula “by order An enactment may be a regulation of”… doesn’t need to be called regulation (s.2) to which Act applies even if not If in doubt goes to DM Justice (s.4) called regulation(s.1(1)(f) & s.1(2)) and (Interpretation Act s.1(c)) If in doubt goes to the Registrar Authority must be confirmed by act of Parliament Authority must be conferred by (enabling clause) (s.2) Lieutenant Governor in Council (Interpretation Act s.1(c)) - Published in Canada Gazette, Part I (not no mandatory notice and comment mandatory) procedures (Although often - Federal Regulatory Plan – lists the regulatory practised anyway) initiatives departments & agencies are planning => ad-hoc system for the coming year (should make every effort to list) Drafting the Decentralised - Drafted by departments making Central process - Most regulations 42

LAP CANS
regulations regulation with help from legal advisors

Fall, 2012

are now drafted under the direct scrutiny and control of professional draftsmen employed by Legislative Counsel’s Office (to ensure consistency and uniformity) Required - The regulations A regulation must be prepared as documents - RIAS (regulatory impact analysis statement) an Appendix to the Order in - description (purpose, current situation, Council, Ministerial Order or other etc Order that enacts it. - alternatives - benefits & costs (including enviro impact) - consultation - compliance & enforcement strategies Submit the Clerk of the Privy Council (OIC) (s.3(1)) documents (submit 3 copies in English & French) to Examination of documents Guide only – Draft sent to Legislative Counsel Office for a Examination legal check & drafting revisions as Examined by Clerk of PCO in consultation with required the Deputy Minister of Justice (s.3(2)) - Clerk examines regulation and makes sure that: All Ministerial Orders of a a) regulation must be in compliance with substantive nature should be dealt enabling clause with by an appropriate Standing b) does not constitute an unusual or Cabinet Committee for approval unexpected use of clause before they are filed with the c) does not trespass unduly on existing Registrar of Regulations rights and freedoms d) form of draft regulation conforms to existing standard IF NOT EXAMINED - Regulation valid but can be revoked by Cabinet, but this is not the reason for its revocation. It would only be revoked based on one of the 4 items above (s.8) PROBLEMS WITH REVIEW PROCESS 1. Clerk of PC & Deputy Minister of Justice have: a) Narrow scope of review b) No real power to require adherence to their suggestions Prepublicatio Canada Gazette, Part I – publication of draft n in regulations and RIAS – for comment period of 30 days Submit final Transmit within 7days of regulation being made documents (Executive Order signed) to the Clerk of the Privy Council (s.5(1)) Registration Registration Registration Clerk of the Privy Council registers every Registrar of Regulations (s.2(1)) (filing) with regulation submitted to him pursuant to s.5(1) IF NOT REGISTERED – The Registrar (s.6) may refuse to file a regulation if he 43

LAP CANS
(all SI not just reg must be registered (s.6(b))) IF NOT REGISTERED - The clerk may refuse to register the regulation if it was not examined. He will refer it to Deputy Minster of Justice to see whether it is a regulation and whether it needs to be examined. (s.7(2)) S.20 allows for exemptions from publication Comes into force Final publication in On day of registration (s.9) Publication in Canada Gazette, Part II (not more than 23 days after registration) (s.11) IF NOT PUBLISHED – regulation is still valid but no one can be convicted until it is published (unless it is exempt from publication) (s.11(2))

Fall, 2012
has doubts, in which case he must refer it to the Attorney General. A regulation that is not filed has no effect (s.2(3)) (this is different from federal system) On day of registration (s.2(2)) Publication in Alberta Gazette (within 1 month of filing) (s.3(1)) IF NOT PUBLISHED – regulation is valid only against a person who has actual notice of it (usually must receive a copy or be informed of its contents). Therefore, it’s not enforceable until published (basically same) If the Lieutenant Governor in Council exempts it (s.3(3))

Exemption If part of the class exempted by SIA (s.20(c)) from publication Inspection by Anyone may inspect a registered SI by going to public the office of the Clerk of the Privy Council (s.17and18) Reviewed by Standing Joint Committee for the Scrutiny of Regulations (s.19) PROBLEMS WITH REVIEW PROCESS: Joint Committee: a) Does not see all regulations b) Sees regulations after they have become law c) Has almost no power of enforcement, with the result that their suggestions are consistently ignored Secret (s.20) (s.3)? Regulations

SCC – Special Committee of Council, PCO – Privy Council Office, OIC – Orders in Council

44

LAP CANS

Fall, 2012

Case Briefs
RE RIZZO AND RIZZO SHOES LTD SSC (1998)
Facts: Following the bankruptcy of Rizzo Shoes Ltd., the Ontario Ministry of Labour, Employment Standards Branch delivered a claim to the trustee in bankruptcy for termination and vacation pay on behalf of former Rizzo employees. The statutory obligation upon employers to provide both termination pay and severance pay is governed by sections 40 and 40a of the Employment Standards Act, respectively. Section 40(a)(3), provided in the amendment of the Act in 1981, states that section 40a (severance pay provision) does not apply to an employer who became a bankrupt and whose assets have (already) been distributed among his creditors (otherwise the severance provision is retroactive). Issue:  Does the termination of employment caused by the bankruptcy of an employer give rise to a claim for termination pay in accordance with the provisions of the Employment Standards Act? YES  Should bankruptcy be interpreted as termination? YES (Looking at the scheme of the Act, its object or the intention of the legislature, the context of the words in issue, and Hansard evidence, it can be seen that the Act applies to employers who become bankrupt and thus bankruptcy is termination) Reasoning: Iacobucci J. - Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question (literal rule) appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees – bankruptcy does not seem to fit comfortably into this interpretation of termination – this analysis, however, is incomplete – according to the modern (purposive, mischief rule) principle set out by Elmer Driedger, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmouniously with the scheme of the Act, the object of the Act, and the intention of Parliament (section 10 of the Interpretation Act also provides that every Act shall be deemed to be remedial and directs that every Act shall receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the Act according to its true intent, meaning and spirit) – the Court of Appeal did not pay sufficient intention to the scheme of the ESA, its object or the intention of the legislature, nor the context of the words in issue - The object of the ESA and the termination and severance pay provisions are broadly premised upon the need to protect employees – if the provisions are interpreted in the plain way of the Court of Appeal, this object will be undermined or rendered pointless – it is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences (and defeating the purpose of a statute fits under the definition of absurdity) (golden rule) – another absurd consequence: if the ESA termination and severance pay provisions do not apply in circumstances of bankruptcy, those employees “fortunate” enough to have been dismissed the day before a bankruptcy would be entitled to such payments, but those terminated on the day of the bankruptcy would not be so entitled (this would be even more absurd in unionized workplaces where seniority is a factor in determining the order of lay-off) - Section 40(a)(3) indicates that the Legislature intended that termination and severance pay obligations should arise upon an employers’ bankruptcy because this provision, introduced in the amendment of the Act, was enacted to clarify that if the assets of a bankrupt employer have already been ceased, he would not have to abide by the rules of termination of severance pay – if this was not the intention of the legislature, what would be the point of

45

LAP CANS

Fall, 2012

-

-

40(a)(3)? (If they meant that bankrupt employers were not subject to the rules of ESA, they would not be specifying bankrupt employers whose assets have already been ceased) In the legislative debates regarding the amendment of the provisions of the Act, the Minister said that employees in bankruptcy, once this act receives royal assent, will be covered by the severance pay provisions (but for the purposes of retroactivity, severance pay will not apply to bankruptcies where assets have been distributed) – although use of Hansard evidence is frail, the Court has recognized that it can play a limited role in the interpretation of legislation – 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 Regarding the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation (or remedial in the words of the Interpretation Act) and as such should be interpreted in a broad and generous manner (any doubt arising from difficulties of language should be resolved in favour of the claimant)

Ratios: - Modern (purposive) principle (Elmer Driedger): the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament - Every Act shall be deemed to be remedial and every Act shall receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the Act according to its true intent, meaning and spirit – section 10 of the Interpretation Act - Benefit-conferring legislation should be interpreted in a broad and generous manner - 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 o plain meaning of the words – does restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees (not by bankruptcy) o general purpose of Act – protect the interests of employees o purpose of specific provisions – (s.40) broadly to protect employees; specifically to give employees time to seek alternate employment, to “cushion” against adverse effects of economic dislocation, and (s.40(a)) to compensate employees for their investment in their employer’s business. o Absurdity of alternate interpretation – why should those employees “fortunate” enough to have been terminated the day before bankruptcy get full payments while those terminated the day of the bankruptcy get nothing? (Golden Rule approach) o Intention of the legislature – legislative history – the transitional provision indicates that the Legislature intended that termination and severance pay obligations should arise on employers’ bankruptcy. Also, Hansard records and statements by the Minister of Labour support this intention. o Scheme of Legislation – because the Act is a mechanism for providing benefits and standards to protect employees, it can be characterised as benefits-conferring legislation. As such, it ought to be interpreted in a broad and generous manner. (This is one of the presumptions) o Case History – cases that the CA used to support its decision are not persuasive authorities

46

LAP CANS

Fall, 2012

BELL EXPRESSVU LIMITED PARTNERSHIP V. REX SCC (2002)
Facts: Resp. is a vendor that facilitates ‘grey marketing’ of foreign satellite signals (decodes them for distribution to the public); App. brought an action to stop the Resp. from distributing the satellite signals, claiming that it is contrary to the Radiocommunication Act. Issues: Does s.9(1)(c) of the Radiocommunication Act prohibit the decoding of all encrypted satellite signals (i.e. those that emanate from within Canada as well as foreign signals)? Analysis: 1) The Modern Approach and finding ambiguity: a) “It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if ‘the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning.’” (190) b) The Modern Approach must be applied to resolve ambiguity (a provision that “must be reasonably ‘capable of more than one meaning.’”). If an ambiguity can be established, the courts must consider the breadth of the context that the provision is being read in (it may be bigger than just the statute itself, it may be a statutory scheme with several Acts involved). If ambiguity still exists, then the courts may resort to subsidiary principles of statutory interpretation. 2) Section in question says: No person shall decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed. 3) The SCC finds that the forbidden activity is decoding which suggests that the statute is directed towards the reception side of broadcasting. The court also finds that the term ‘an’ as in ‘an encrypted signal’ means one, some or any. So, in the statute, the implication is that an translates to ‘any encrypted signal.’ 4) Looking also at the broader context, the court finds that this interpretation of the statute makes sense and fits with Parliament’s apparent intended purpose. The court is emphasizing the plain meaning of the words. 5) Note also that the court is “buttressing” their interpretation w/ the words of the Interpretation Act. Main Principles: 1) Modern approach is confirmed as necessary in EVERY CASE. (line 2, p. 190) 2) Modern approach is applied initially before any other subsidiary principles are applied. 3) Bell tells us what ‘ambiguous’ means. 4) If there’s an ambiguity it allows for the use of subsidiary tools. 5) An ambiguous circumstance would allow for the use of a Charter values argument (i.e. Modern Approach to be applied before the Charter) 6) Bell is an example of where the Modern Approach is applied, but the emphasis is placed on the plain, ordinary meaning of the words.

UNITED TAXI DRIVERS FELLOWSHIP OF S. ALBERTA V. CALGARY SCC (2004)
Facts: The City of Calgary regulates its taxi industry by virtue of the Taxi Business Bylaw which requires that all taxis have a taxi plate licence. In 1993, the bylaw froze the number of taxi plate licences issued. The following year, the provincial government enacted a new Municipal Government Act. Issue: Are the City’s actions (i.e. limiting the number of taxi plate licenses) ultra vires the Municipal Government Act? NO (The Court of Appeal’s literal approach to interpreting the Act leads to the wrong conclusion that the Act is ultra vires; the Supreme Court of Canada’s modern/purposive approach leads to the conclusion that it is not ultra vires because the purpose of the legislation was to enhance the powers of the municipalities, and so restricting the municipality’s power to limit the number of licences would be inconsistent with this intent) 47

LAP CANS

Fall, 2012

Reasoning: - The Court of Appeal uses the literal approach, but the Supreme Court of Canada uses the purposive - The modern approach is now used in statutory interpretation – you look for the purpose of the legislation and the sections within it (the intention of the legislature) - The legislature’s intention in passing a new MGA was to enhance the powers of its municipalities – giving municipalities broader powers is expressly stated in section 9 of the Act – as a result, to determine whether a municipality is authorized to limit licences, the provisions of the Act must be construed in a broad and purposive manner - There is no indication that the legislature intended to remove the municipality’s power to limit the number of taxi plate licences – it is presumed that the legislature does not alter the law by implication, but expressly – to the contrary, section 9 of the act indicates that the legislature sought to enhance the municipality’s powers not curtail them - The provision explicitly limiting the number of licences is unnecessary because the Act enhances the municipalities powers through broad language - The respondent’s narrow interpretation of the Act (looking at each provision separately) cannot be applied – section 7 must be read together with section 8 – section 8 is supplementary to section 7 as indicated by the words “without restricting section 7” at the beginning of section 8 – narrow and literal approach to section 8 effectively restricts section 7 - The power to limit the number of licences could fall under either s. 8(a), the power to regulate, or s. 8(c), the power to provide for a system of licences – the word “including” in section 8(c) indicates that the list is non-exhaustive and that any type of bylaw consistent with the list is authorized - thus the City has the power under the Act to pass bylaws limiting the number of taxi plate licences. Ratios: - The modern/purposive (broad) approach is used in statutory interpretation today, including the statutes empowering municipalities - There is a presumption that the legislature does not intend to alter the law by implication, but expressly

CANADA (A-G) V MOWAT Federal C.A (2009) WIGGLEWORTH V. THE QUEEN SCC (1987)
Facts: RCMP officer charged with a service offence and was found guilty in service court and then he was charged criminally arising from the same facts and the question came from statutory interpretation which came down to the fact the he required protection from the Charter since the Charter stated that double jeopardy does not apply. Section 11 of the Charter refers only to an “offence” and not a “criminal offence.” Issue: Can marginal notes be used as context to discern meaning of a word in a section of an Act? YES (Marginal notes can be used, but with cautious weight attached to them) Reasoning: - One possible inference for not including the word “criminal” in the statute is that the word “criminal” was deleted in order to ensure that section 11 would also be applicable to summary conviction and provincial offence prosecutions under quasi-criminal public welfare statutes – in the words of Toy J. – the authors of the new Charter, when they employed the unqualified word “offence” as opposed to “criminal offence,” were doing nothing more than providing for the equal protection of Canadian citizens from beaches of their rights under provincial as well as federal law

48

LAP CANS
-

Fall, 2012

The marginal note to section 11 seems to support this interpretation of the section – it reads “Proceedings in criminal and penal matters” - The traditional view was that marginal notes could not be used as aids to interpretation as they formed no part of the Act which was passed by Parliament - The Supreme Court of Canada has used statutory headings to assist in interpreting sections of the Charter – Estey J. in Law Society of Upper Canada v. Skapinker held that headings were deliberately included as part of the Charter and formed part of the resolution which Parliament debated, and at the very minimum, the court must take them into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter – an attempt must be made to reconcile the heading with the section introduced by it – if the section as a whole read clear and without ambiguity, the heading will not operate to change this clear meaning - Marginal notes, however, are not an integral part of the Charter – the case for their utilization as aids to statutory interpretation is accordingly weaker – there is support in the marginal note for the proposition that the opening words of section 11 restrict the application of the section to criminal or quasi-criminal proceedings and proceeding giving rise to penal consequences Ratio: Marginal notes and headings can be used as context in discerning meaning of ambiguous sections, but with cautious weight attached to them (if they retract from meaning of the statute, they can’t be used) – they, however, are not part of statutes (Interpretation Act, section 12(2)).

CITY OF NANAIMO V. RASCAL TRUCKING LTD. SCC (2000)
Facts: The respondent company leased a parcel of land located within the appellant city. The city granted a permit to the company to deposit 15,000 cubic yards of soil on its site to conduct soil processing operations. Neighbouring residents complained about dust and noise emissions and a city inspector recommended that the soil be removed. The city council passed resolutions declaring the pile of soil a nuisance pursuant to section 936 of the Municipal Act (building, structure, erection or any other matter or thing) and ordered the company and its lessor to remove it. The company and its lessor failed to comply. Issues:  Did section 936 empower the appellant to order the removal of the soil by declaring it a nuisance? YES  Does the phrase “or other matter or thing” mean that anything could be a nuisance? NO (Purposive interpretation and ejusdem generis rule: the phrase extends the two classes of nuisances outlined before it)  If not, does the pile of soil nonetheless fit within the two classes of nuisance under section 936? YES (The pile of soil fits within the phrase “building, structure, or erection of any kind” because a pile of soil does not materialize on its own, but must be erected by piling or dumping) Reasoning: Major J. - Broad and purposive approach – a strict construction approach is in order only where the municipality is attempting to restrict common law rights - The legislature did not mean to expand the scope of section 936 to the extent that the phrase “or other matter or thing” includes almost anything to be a nuisance – the specific preceding language would not have been used had the legislature intended to classify anything as a nuisance – the phrase rather extends the two classes of nuisances outlined before it (this interpretation follows from both a purposive approach and the application of ejusdem generis rule) - The comma that was used in the old statute cannot be seen as so important as to render null the specific items before it 49

LAP CANS
-

Fall, 2012

Section 932 of the Act gives municipalities the authority to address nuisances, broadly defined, through duly passed bylaws – were references to “or other matter or thing” interpreted to govern nuisances generally, section 936 would necessarily encompass those nuisances addressed by section 932, and the legislature could not have intended such redundancy (why would the legislature pass a bylaw (932) if they can pass a resolution (936)?) - Even though section 936 declares only two classes of nuisance, it does not mean that the pile of soil does not fall within those two classes – the pile of soil does not fall within any of the water-related items, but it does fall within the phrase “building, structure or erection of any kind” – a pile of soil does not materialize on its own – it must be erected by piling or dumping - It would be absurd if section 936 did not extend to a pile of soil – it would mean a building, structure, or pond could be declared a nuisance, but the soil excavated to create them could not Ratio: Ejusdem generis rule: when general language follows a series of more specific terms, the class of things referred to by the general language may be read down to refer to a narrower class of things to which the specific terms all belong.

GRINI V. GRINI Manitoba C.A (1974)
Facts: Corolie, daughter of petitioner and respondent, is 17, in good health, and in attendance of Grade 11 in a public school. Before any maintenance award can be made to Corolie under the Divorce Act, she must coming within section 2(b)(ii) as being unable “by reason of illness, disability or other cause” to withdraw herself from parental charge or provide herself with the necessaries of life. The school leaving age is 16 years under The Public Schools Act, but section 237 extends the right to attend free public school to everyone between the ages of 6 and 21 years. Issue: Is “or other cause” restricted to mean an extension of “illness or disability” so as to exclude Corolie who is in attendance of school while older than 16 to receive maintenance? NO (“Or other cause” is a general phrase referring to some larger genus as the genus of the specific words before it is exhausted) Reasoning: Wilson J. - The petitioner argues that by the ejusdem generis rule, the phrase “other cause” in section 2(b)(ii) is to be restricted to causes akin to illness or disability so as not to include maintenance for a child of 16 years who is attending school – if this were the case, however, a child would be cut off from maintenance in the unfortunate accident of a sixteenth birthday and this could not have been the intention of Parliament - The inability of a child to support himself by his own efforts due to incapacity arising from physical or mental shortcoming is sufficiently expressed as one caused by illness or disability – if “or other cause” meant to be extension of “illness or disability,” that would be redundant – the particular words exhaust the whole genus, so the general words which follow must refer to some larger genus and are not to be construed as restrictive – it is after all the question of the presumed intention of the statute Ratios: - Where particular words exhaust the whole genus, the ejusdem generis rule does not apply and the general words that follow the particular words must refer to some larger genus and are not be construed as restrictive - The intention/purpose of a statute is important in determining whether ejusdem generis rule applies – if the rule is inconsistent with the purpose, it may be rendered inoperative

50

LAP CANS

Fall, 2012

R. V. STRAHL Manitoba C.A. (1967)
Facts: Strahl pleaded guilty to a charge of committing a delinquency in that he did unlawfully, not being in a dwelling house, cause a disturbance in or near a public place by swearing and using insulting and obscene language, contrary to section 160(a)(1) of the Criminal Code. On conviction, the learned trial judge of the juvenile court decided that the appropriate course of action was to deprive Strahl of his motor-vehicle driving privileges for a period of time. Section 20(1)(g) of the Juvenile Delinquents Act provides that the court may “impose upon the delinquent such further or other conditions as may be deemed advisable” (in addition to powers such as to permit a fine, committal to a probation officer, etc.). Issue: Does the ejusdem generis rule apply so that the judge did not have jurisdiction to order a driving prohibition? NO (Looking at the purpose of the Act as a whole, the judge did have jurisdiction and the rule does not apply) Reasoning: Trischler, C.J.Q.B. - Counsel for Strahl submits that the ejusdem generis rule applied to section 20(1)(g), which may be said to be ejusdem generis with the powers conferred by prior subparagraphs of section 20(1) (i.e. these permit a fine, committal to a probation officer, etc.) - The words of subparagraph (g) should be given a liberal construction as can be seen from a consideration of the Act as a whole, which states that the Act shall be construed liberally so that the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by its parents - ejusdem generis rule does not apply the trial judge had a right to impose the driving prohibition Ratio: The purpose of the legislation may render ejusdem generis rule inapplicable, if the rule is inconsistent with that purpose

R. V. OAKES SCC (1986)
Issue: Is the reverse onus provision a reasonable limit on the right to be presumed innocent until proven guilty beyond a reasonable doubt? Reasoning: - Under the Charter, there is a presumption of innocence - The Court looked at the Parliament’s reasons for enacting provisions that infringe the Charter (Commissioner’s Report) (i.e. the Parliament aimed at curbing drug trafficking by facilitating the conviction of drug traffickers, which were on the increase since the 1950s). Ratio: Extrinsic evidence, such as social context (any viable source of information that can inform the Court of the social context), is used in statutory interpretation.

FISHER V BELL (1960)
Facts: The defendant, Bell, was charged for displaying a flicker knife in the window of his shop. The Restriction of Offensive Weapons Act prohibits manufacture, sale, offer for sale, etc. of flick knives. Issue: Was the display of knife in the window an offer to sell so that Bell can be charged for an offence? NO (It was merely an invitation to treat as in the common law of contracts) Reasoning: - The words “offer for sale” ought to be construed as they were in the law of contract - Any statute must be looked at in the light of the general law of the country – Parliament in passing the Act must be taken to know the law of contract that the display of an article with a price on it in a shop window is merely an invitation to treat - Many statutes use the words “expose for sale” when they wish to expand the meaning of “offer for sale” (in pari materia) – the Act in question does not use those words (expressio rule could apply here) Ratios:

51

LAP CANS
-

Fall, 2012

Any statute must be looked at in the light of the general law of the country (statutes must be construed in accordance with the common law) The common law in question is current common law, and not the common law that existed at the time the legislation was passed Parliament is presumed to be legislating against the backdrop of the common law. External context, such as common law, is used in statutory interpretation

MANDAVIA V. CENTRAL WEST HEALTH CARE INSTITUTIONS BOARD (2005)
Facts: In 1989, Dr. Mandavia was injured at work. His contract of employment stated that if he is injured at work, he is entitled to earnings from the Workers’ Compensation Commission and a “topup” of whatever the difference is between those earnings and his salary. He received Extended Earnings Loss benefits from the Commission, and upon the advice of his employer and the Commission, he retired in 1993 (9 years before he was suppose to). He was not notified, however, that he would stop receiving his Extended Earnings and that, as a result, he would lose the top-up. Section 81 of the Workplace Health, Safety and Compensation Act came into force on January 1, 1993 and stated that no top-up is allowed unless an employer and an employee had an agreement prior to the provision coming into force, in which case top-up is allowed until January 1, 1995. Issue: As a result of negligent misrepresentation, was Mandavia entitled to the top-up he would have received for 9 years had he not retired? NO (His entitlement is limited by section 81 which expressly rebuts his vested right and which is retrospective) Reasoning: - Section 81 is retrospective (it prevents agreements made prior to the provision coming into force to continue to exist after January 1, 1995) – there is no presumption against retrospectivity – there is a presumption against retroactivity, so the provision is not meant to apply retroactively as it does not specifically say that it does – as a result, Mandavia can only be compensated for the top-up he would have received until December 31st, 1994 - Since Mandavia has a contractual right to the top-up (contract of employment), he has a vested right in it - There is a presumption against interference with vested rights, so legislation that doesn’t expressly state that it interferes, should not be construed that it does - Section 81 specifically states the intention of the Legislature that the section is to apply to persons with contractual rights, even if already injured – interference is therefore allowed because it is expressly stated Ratios: - It is presumed that the legislature does not intend new legislation to be given a retroactive application – this presumption is strong and can only be rebutted if a statue contains language clearly indicating that it is meant to apply retroactively - It is presumed that the legislature does not intend to interfere with vested rights – this presumption is weaker and in some context is easily rebutted depending on factors such as the nature of the protected right and how unfair or arbitrary it would be to abolish or curtail the right – the presumption can be rebutted with express statutory language - There is no presumption against the retrospective or prospective application of legislation

DIKRANIAN V QUEBEC (A-G) SCC (2005)
Facts: In Quebec, the repayment terms for student loans are set out in the Act respecting financial assistance for students. The appellant obtained student loans between 1990 and 1996 and completed his studies in January 1998. According to the loan certificate signed by the appellant with his financial institution in 1996, the appellant had to begin repaying the principal and paying the interest on the loan upon the expiration of the exemption period (1 year from then). However, as a result of amendments to the Act respecting financial assistance for students that came into force in 1997 and 1998, the financial institution charged the appellant interest on his loan that, under the 52

LAP CANS

Fall, 2012

certificate, was supposed to have been paid by the government. The appellant was authorized to institute a class action against the government seeking reimbursement of the interest paid. Issue: Did Dikranian wrongfully pay the interest in that the amendments did not apply to the contract he already had with the financial institution? YES (The contract he had created rights and obligations the minute it was made and there’s a presumption against interference with vested rights) Reasoning: Bastarache J. - The appellant and the financial institution signed a loan certificated provided by the Minister, thereby turning the certificate into a contract and crystallizing the parties’ rights and obligations - To have a vested right 1) the individual’s legal situation must be tangible and concrete rather than general and abstract and 2) this legal situation must have been sufficiently constituted at the time of the new statute’s commencement – a contract form is tangible and concrete (it might be general and abstract had the parties not signed the contract) and the contract has been signed before the amendment - There is a presumption against interference with vested rights – the amendments don’t refer to contracts that have already been entered into and therefore cannot apply to them (if the legislation applied retrospectively, there would be interference with vested rights) - The legislation talks about “juridical situations in progress” but this applies to contracts that have not been signed yet - For legislation to be applicable to past contracts, it would be retroactive and there is a presumption against retroactive legislation Ratios: - To have a vested right 1) the individual’s legal situation must be tangible and concrete rather than general and abstract and 2) this legal situation must have been sufficiently constituted at the time of the new statute’s commencement - There is a presumption against interference with vested rights, so even though there is no presumption against retrospective legislation, legislation cannot apply retrospectively if it interferes with vested rights - There is a presumption against retroactive legislation

ARGUS V. HART
Facts: On April 30, 1975, the respondent Diane Angus was serious injured in a car accident. Her husband, respondent James Angus, was negligently driving the car in which she was a passenger. The Married Women’s Property Act and the Insurance Act precluded a wife to sue her husband in negligence at the time. The Family Law Reform Act that came out 2 months after the accident allowed a wife to sue a husband. Issue: Does the new Family Reform Act apply retroactively so as to permit one spouse to bring an action in respect of a tort committed by the other before the Act’s commencement? NO (There is a presumption against retroactive legislation; the husband’s defence to an action that his wife can’t sue him in tort is a substantive right and there is a presumption against interference with vested rights) Reasoning: La Forest J. - There is a presumption that statutes do not operate with retroactive effect - The nature of a tort is that it’s actionable – before the Family Reform Act, the injury to the wife was not actionable, so it wasn’t a tort – saying now that it’s a tort is to apply the legislation retroactively - The husband’s prior defence to an action (that his wife could not sue him) is a substantive right, not procedural – there is a presumption against interference with someone’s 53

LAP CANS

Fall, 2012

Ratios: - There is a presumption against retroactive legislation and interference with vested rights (substantive rights are vested rights, and procedural rights are not vested rights) - There is no presumption against retrospective legislation unless one’s vested rights are affected

substantive rights, but there is no vested rights in procedure – so to apply the legislation retrospectively even would eliminate the husband’s defence to an action and would interfere with his substantive rights The wife cannot sue the husband

BROSSEAU V. ALBERTA SECURITIES COMMISSION
Facts: In 1980, Brosseau issued a false prospectus. At the time, the Securities Act (1970) did not have a remedy, but the Securities Act (1981) added remedies such that Brosseau would be issued an order to cease trading. Issue: Can the Securities Commission impose remedies under the new legislation that were not available when Brosseau had prepared and publicized the false prospectus? YES  Can the remedies be provided in the past for issuing a false prospectus before the legislation came into effect (retroactive)? NO (There is a presumption against retroactive legislation and the legislation does not state retroactivity)  Can the remedies be provided now and in the future for issuing a false prospective before the legislation came into effect (retrospective)? YES (Even though applying the legislation retrospectively interferes with Brosseau’s vested rights, good policy reasons aimed at protecting the public rebut the presumption against such interference) Reasoning: - There is a presumption against retroactive legislation and nothing in this legislation states retroactivity – the legislation is therefore not retroactive - There is no presumption against retrospective application, but there is a presumption against interference with vested rights - Brosseau’s vested right is that penal legislation can only be applied at the time of the offence - But the new remedy in the legislation was put in not to penalize those who issue a false prospectus but to protect the public – as a result, the presumption against interference with vested rights can be rebutted here for policy reasons Ratios: - There is a presumption against interference with vested rights, so even though there is no presumption against retrospective application, legislation cannot be applied retrospectively if it interferes with vested rights - The presumption against interference with vested rights can be rebutted for policy reasons

WENER V. DAVIDSON
Facts: The Def enticed Mr. Davidson into leaving the Pltf; the Pltf sued for loss of consortium, as defined in the common law. Issues: Does the Pltf have a right to sue for loss of consortium? Will the common law provide a cause of action if there isn’t one in statute law? Holding & Reasons: Yes. First, the court must determine whether the Domestic Relations Act constitutes a code. The court determine that it is not: it doesn’t deprive husbands of rights at common law, and it doesn’t deprive a wife from an action. Hence, it isn’t a strict code. The court will construe a statute as conforming with the common law unless the statute is expressly written to alter/contradict the

54

LAP CANS

Fall, 2012

common law. After a review of the common law regarding a wife’s rights in relation to the Act, the court finds that husbands and wives would both have a cause of action for loss of consortium. Essentially unless the statute expressly prevents action from being taken (recall in Angus v. Hart) then the common law will be looked at to determine whether this right exists or not. The law isn’t a Code – it doesn’t embrace ALL the law. Unless the common law is specifically defeated by statute, the common law will apply. Main Principles: 1) The common law is presumed always to continue unless there is an arguably clear intention to alter that common law.

55