Professional Documents
Culture Documents
of
Contents
General
Approach
to
Interpretation
...........................................................................
5
Literalists:
........................................................................................................................................
5
1. The
courts
are
not
law
makers,
it’s
undemocratic
2. A
relaxed
approach
leads
to
uncertainty
and
inequity,
therefore
the
construction
should
be
strict
3. Public
interest
is
served
by
the
strict
approach,
the
public
wants
certainty
in
the
laws
made
by
elected
officials.
Non-‐literalists:
...............................................................................................................................
6
1. Purposive
approach
–
looks
beyond
the
strictness
of
language,
flexibility
is
key
2. Legislature
and
judicial
arm
work
together
to
achieve
just
results
(partnership)
3. Discretionary
feature
is
essential
and
is
in
the
public
interest
Internal
Interpretation
...................................................................................................
6
1)
The
Literal
Approach
(Sussex
Peerage
1844)
.................................................................
6
Gather
the
meaning
from
the
words
alone,
don't
look
to
purpose.
Advantage
is
predictability.
2)
The
Mischief
(Purposive)
Approach
(Heydon’s
Case
1584)
.......................................
6
What
mischief
is
this
change
in
legislation
mean
to
remedy.
Look
to:
1) What
was
the
common
law
rule
before
the
Act
was
made?
2) What
was
the
mischief
and
defect
the
Act
was
meant
to
address?
3) What
remedy
Parliament
had
resolved
and
appointed
to
cure
the
disease?
4) The
true
reason
for
the
remedy
Look
to
Rizzo
and
notes
for
what
should
be
evaluated.
3)
The
Golden
Rule
Approach
(Grey
v
Pearson
1857)
.......................................................
6
When
the
grammatical
meaning
would
lead
to
an
absurdity.
1) Would
too
literal
an
interpretation
lead
to
an
absurdity?
2) Absurdity
of
the
alternate
interpretation.
“It
is
a
well
established
principle
of
statutory
interpretation
that
the
legislature
does
not
intend
to
produce
absurd
consequences.”
(Rizzo).
3) Use
common
sense
(Zacks)
Modern
Approach………………………………………………………………………………………4
Words
of
a
provision
are
to
be
read
in
their
entire
context
and
in
their
grammatical
and
ordinary
sense
harmoniously
w/
the
scheme
of
the
Act,
the
object
of
the
Act
and
the
intention
of
Parliament
1)
Context
i. plain
meaning
ii. context
(ejusdem
generis)
iii. intention
2)
Purposive/mischief/intention.
3)
Grammatical
or
ordinary
sense
Language
Aids:
...................................................................................................................
7
Noscitur
a
sociis:
A
general
word
takes
its
colour
from
the
preceding
specific
words
with
which
it
is
used.
1
Ejusdem
Generis:
A
general
phrase
gets
its
colour
from
the
word
or
words
that
follow
OR
proceed
it.
Ie)
use
of
the
words
“or
other”
at
the
end
of
a
list
might
restrict
the
list
to
a
genus
which
is
exhausted
or
there
may
be
no
commonality
b/w
the
list.
Rebuttals:
1) There
are
no
similar
characteristics
to
provide
a
common
background,
then
it
is
not
possible
for
these
words
to
give
meaning
to
the
general
words.
2) If
the
category
is
exhaustive,
such
that
the
general
words
following
must
refer
to
a
larger
genus
and
are
not
restrictive
(Rascal
Trucking)
Expressio
unius
est
exclusio
alterius:
a
general
word
of
phrase
takes
its
colour
as
well
from
the
specific
words
or
phrases
which
follow
it
as
from
those
that
precede
it.
Express
mention
of
one
thing
implies
exclusion
of
another.
(Fisher
v
Bell).
Other
aids:
.......................................................................................................................................
8
Marginal
notes,
head
notes,
tables
of
contents,
preamble.
Re
Rizzo
and
Rizzo
Shoes
[1998]
(Application
of
Modern
principle;
interpret
in
the
entire
context,
grammatical
and
ordinary
sense
harmoniously
with
the
scheme
and
objective
of
the
Act
and
intention
of
Parliament)
.....................................................................
8
Ratio:
Rejected
the
plain
meaning
b/c
of
absurdity.
Instead
chose
to
read
the
Act
in
its
entire
context
and
in
harmony
w/scheme
and
objective
and
Parliaments
intention,
in
a
way
that
would
cause
no
conflict.
Didn’t
rely
on
Hansard
or
ministers
statements.
As
benefits
confering
legislation
it
should
be
read
in
favor
of
the
employees
...........................
8
Bell
ExpressVu
Partnership
v
Rex
[2002]
(Modern
approach,
grammatical
&
ordinary
sense
-‐>
broader
context)
.............................................................................................
9
Rule:
Apply
the
modern
approach
1st,
then
use
other
principles
such
as
strict
construction
of
penal
statutes
and
Charter
values
presumption.
You
only
go
to
external
aides
when
there
is
ambiguity,
and
when
internal
are
exhausted.
.........................
9
United
Taxi
Drivers
Fellowship
of
Southern
Alberta
v
Calgary
[2004]
(affirms
that
courts
are
bound
to
Modern
Approach)
...................................................................................
10
Rule:
Courts
are
bound
to
apply
approach
from
Bell
ExpressVu
(modern
approach)
unless
there
is
a
constitutional
challenge,
a
contextual
approach.
.........................................
10
Wigglesworth
v
The
Queen
[1987]
(how
to
use
marginal
notes)
...................................
10
Rule:
In
assessing
context
of
a
statute/provision
can
look
to
the
headers,
headings,
and
marginal
notes.
Headings
are
considered
integral
to
a
statute
(Charter
cases
especially),
marginal
notes
are
not.
Headings
have
more
weight
than
marginal
notes.
10
City
of
Nanaimo
v
Rascal
Trucking
[2000]
(application
of
Ejudeem
generis,
genus
wasn’t
exhausted,
supported
by
the
Golden
Rule,
(absurdity))
..........................................
11
Rule:
Modern
approach
doesn’t
preclude
courts
from
common
law
context
tools,
applies
ejusdem
generis,
looking
at
the
other
words
within
the
Act,
and
applies
the
Golden
Rule
to
avoid
absurdity.
.............................................................................................................
11
2
Grini
v
Grini
[1974]
(Exhaustion
of
ejusdem
generis,
uses
the
context
and
purposive
approach)
........................................................................................................................................
12
Rule:
When
the
words
in
a
provision
exhaust
a
genus
then
the
general
words
that
follow
must
be
understood
as
referring
to
a
larger
genus
and
can’t
be
interpreted
in
a
restrictive
manner.
Illness
and
disability
exhausted
the
genus
and
on
a
purposive
(mischief)
approach
education
was
found
to
be
within
the
category
of
“other
cause.”
12
R
v
Strahl
[1967]
(Application
of
ejusdem
generis)
..............................................................
12
Rule:
The
ejusdem
generis
rule
can
be
rebutted
by
looking
at
the
legislative
purpose
of
the
Act
as
a
whole
(mischief
argument,
contextual)
.....................................................................
12
External
Context
of
the
Legislation
..........................................................................
13
1)
Social
Context
R
v
Oakes
[1986]
(example
of
the
courts
looking
to
the
social
situation
for
context
about
why
a
statute
was
developed)
.........................................................................................
13
Rule:
Assessing
whether
a
provision
is
in
conflict
with
the
Charter
consider
the
reasoning
for
the
intrusion
in
the
social
context
The
court
can
look
at
extrinsic
material
to
understand
why
a
provision
has
been
enacted,
in
this
case
a
reverse
onus
clause
based
on
the
social
concern
about
the
increase
in
drug
trafficking.
........................
13
2)
Legal
context
R
v
Popovic
and
Askov
[1975]
(look
to
legislative
history
for
context)
.........................
14
Rule:
In
assessing
a
provision
the
Court
will
look
at
the
current
meaning
but
when
this
isn’t
sufficient
b/c
there
is
still
ambiguity
they
can
look
to
previous
enactments
for
clarity
about
the
definition
or
substance
of
the
word.
.................................................................
14
Statutes
in
Pari
Materia
............................................................................................................
14
Statutes
must
work
together
even
when
they
don’t
refer
to
one
another
and
therefore
it
can
be
assumed
that
the
legislative
intent
was
that
they
be
consistent.
Fisher
v
Bell
[1960]
(common
law
applied
when
needed,
use
of
expressio
unis)
.........
15
Rule:
An
offer
for
sale
w/o
further
definition
will
be
construed
in
accordance
with
the
common
law
and
other
definition
was
expressly
exlcuded
.
.....................................................
15
Re:
Section
94(2)
of
the
Motor
Vehicle
Act
[1985]
(speeches
and
extrinsic
evidence
from
legislators
will
be
given
minimal
weight)
......................................................................
15
Rule:
In
constitutional
cases
minutes
from
meetings
and
speeches
can
be
given
some
weight
(minimal)
b/c
there
is
no
necessary
connection
b/w
the
intent
in
the
legislature
and
the
Act
on
paper.
..................................................................................................................................
15
R
v
Sullivan
[1991]
(use
of
Hansard
and
legislative
history
in
examining
current
statutes)
...........................................................................................................................................
16
3
Rule:
If
there
is
a
question
about
a
word
or
provision
the
court
may
look
to
the
Hansard
and
previous
legislative
history
to
determine
the
intention
behind
the
change.
..............................................................................................................................................................................
16
R
v
Heywood
[1994]
(Preference
to
use
statutory
context,
purpose,
precedent
over
legislative
history
and
Hansard
evidence)
...............................................................................
16
Rule:
Admissibility
of
Parliamentary
debates
is
weak
and
of
little
value,
as
is
legislative
history
b/c
of
the
lack
of
proof
of
legislative
intent.
Legislative
history
can
be
used
to
show
the
mischief
the
Legislature
was
trying
to
remedy,
these
rules
are
more
flexible
in
evaluating
a
Constitutional
enactment.
The
provision
should
be
given
its
ordinary
meaning
in
context
as
read
consistently
w/the
rest
of
the
Act
(modern
approach)
......
16
R
v
Morgentaler
[1993]
(approves
use
of
Hansard
evidence)
..........................................
17
Rule:
The
court
can
use
extrinsic
evidence
in
determining
the
purpose
of
a
statue
b/c
this
helps
to
give
context
as
long
as
the
court
is
aware
that
this
evidence
has
limited
weight.
...............................................................................................................................................................
17
Canada
AG
v
Mowat
[2009]
(Fundamental
principle
that
legal
authority
must
be
granted
and
the
grounds
for
this
must
be
found
using
the
modern
approach
looking
at
the,
context,
using
extrinsic
evidence
or
even
the
common
law.)
.......................................
17
Rule:
The
Tribunal
doesn’t
have
the
inherent
authority
to
grant
“costs”
because
it
must
be
granted
its
powers
as
a
delegated
authority,
and
nowhere
in
the
context
or
extrinsic
evidence
(similar
statutes)
does
it
appear
that
this
authority
was
meant
to
be
granted.
..............................................................................................................................................................................
17
Retroactivity,
Retrospectivity
and
Vested
Rights
...............................................
18
Retroactive
....................................................................................................................................................
18
Retrospective
legislation
is
legislation
that
applies
in
the
past.
There
is
a
strong
presumption
against
it.
•
Rebutted
if
it
is
expressed
in
the
statute
expressly
that
it
is
applied
retroactively.
•
Also
if
the
provision
is
for
the
public
interest.
Retrospective
...............................................................................................................................................
18
Retrospective
legislation
changes
the
legal
consequences
of
actions
but
going
forward.
There
is
no
presumption
against
these.
There
is
a
presumption
against
either
if
they
interfere
w/a
vested
right.
This
presumption
can
be
rebutted
if
it
is
expressed
in
the
statute
that
it
will
be
interfered
with
Mandavia
v
Central
West
Health
Care
Institutions
Board
[2005]
(application
of
retrospective/retroactive
arguments,
examination
of
vested
rights,
the
three
presumptions)
................................................................................................................................
19
Rule:
For
something
to
be
retroactive
it
must
change
the
past
legal
affect
of
an
action,
it
is
retrospective
if
it
simply
changes
the
legal
consequences
in
the
future.
The
4
provision
here
was
held
retrospective.
The
express
fact
that
it
was
retrospective
rebutted
the
presumption
against
interference
w/vested
rights.
..........................................
19
Dikranian
v
Quebec
AG
[2005]
(test
for
vested
rights)
.....................................................
20
Rule:
The
court
finds
that
rights
were
vested
b/c
it
was
a
clear,
concrete
individual
situation
and
therefore
the
Act
as
amended
could
not
apply
to
him.
....................................
20
The
test
for
whether
there
are
vested
rights.
1. The
relevant
legislation
must
be
reasonably
susceptible
of
two
interpretations.
2. The
judicial
situation
must
be
tangible,
concrete
and
distinctive.
3. The
situation
must
be
sufficiently
constituted
at
the
time
of
the
statutes
commencement,
it
must
have
materialized
(in
a
contract).
4. It
must
be
related
to
a
specific
individual.
Angus
v
Hart
[1988]
(If
vested
rights
are
substantial
there
will
be
a
presumption
against
interference
w/them)
....................................................................................................
21
Rule:
Whether
a
provision
substantive
or
procedural
is
determined
looking
at
whether
it
affects
substantive
or
procedural
rights..
......................................................................................
21
Brosseau
v
Alberta
Securities
Commission
[1989]
(Public
interest
trumps
the
presumption
against
retroactive
application)
........................................................................
21
Rule:
If
the
purpose
of
an
enacted
statute
is
to
protect
the
public
interest
then
a
punishment
can
be
applied
retrospectively
.....................................................................................
21
Presumption
against
Substantial
Alterations
...........................................................................
22
There
is
a
presumption
that
the
legislature
doesn’t
intent
to
make
substantial
changes
beyond
what
is
explicitly
declared
Wener
v
Davidson
[1972]
(common
law
will
be
relied
on
to
fill
gaps
in
statutes
that
are
not
strict).
.................................................................................................................................
22
Rule:
A
statute
is
a
code
if
it
embraces
all
of
the
common
law.
If
not
then
the
common
law
can
step
in
to
fill
in
gaps
and
the
common
law
is
understood
to
continue
unless
there
is
clear
intention
to
change
it.
.....................................................................................................
22
Strict
Construction
of
Penal
Statutes
.......................................................................
22
If
there
is
any
ambiguity
in
a
penal
statute
it
is
meant
to
be
found
in
favor
of
the
accused.
Interpretation
Act
Excerpts
British
Columbia
......................................................
23
5
3. Public
interest
is
served
by
the
strict
approach,
the
public
wants
certainty
in
the
laws
made
by
elected
officials.
Non-‐literalists:
1. Purposive
approach
–
looks
beyond
the
strictness
of
language,
flexibility
is
key
2. Legislature
and
judicial
arm
work
together
to
achieve
just
results
(partnership)
3. Discretionary
feature
is
essential
and
is
in
the
public
interest
Internal
Interpretation
1)
The
Literal
Approach
(Sussex
Peerage
1844)
The
intent
of
the
legislature
should
only
be
gathered
from
the
words
alone.
“Words
are
to
be
given
plain
and
ordinary
meaning
whatever
the
consequences.”
The
objective
or
purpose
are
not
considered.
An
advantage
is
that
this
creates
predictability.
Look
at
the:
1) Meaning
in
the
Act
2) Ordinary
meaning
in
the
dictionary
(Popovic)
3) Natural
and
ordinary
usage
–
plain
meaning
4) French
version
(there
are
commonly
problems
w/French
versions
–
a
weaker
argument)
5) Definition
in
the
Interpretation
Act
s.35(1)
6
from
Literal
Approach
when
the
result
would
be
absurd.
If
this
occurs
then
the
grammatical
rule
can
be
modified.
Look
to:
4) Would
too
literal
an
interpretation
lead
to
an
absurdity?
5) Absurdity
of
the
alternate
interpretation.
“It
is
a
well
established
principle
of
statutory
interpretation
that
the
legislature
does
not
intend
to
produce
absurd
consequences.”
(Rizzo).
6) Use
common
sense
(Zacks)
When
trying
to
understand
the
meaning
a
court
will
use
in
a
statute:
Rule
1)
Don’t
just
look
at
plain
meaning
–
court
will
use
liter,
golden
and
mischief
Rule
2)
Beware
of
putting
too
much
trust
in
previously
decided
cases
Rule
3)
Don’t
be
misled
when
court
refers
to
“intent
of
the
legislature”
this
is
the
social
policy
behind
the
act,
not
actual
intent.
Language
Aids:
Noscitur
a
sociis:
A
general
word
takes
its
colour
from
the
preceding
specific
words
with
which
it
is
used.
Ejusdem
Generis
(General
Principle):
A
general
phrase
gets
its
colour
from
the
word
or
words
that
follow
OR
proceed
it.
Ie)
use
of
the
words
“or
other”
at
the
end
of
a
list
might
restrict
the
list
to
a
genus
which
is
exhausted
or
there
may
be
no
commonality
b/w
the
list.
This
principle
can
be
rebutted
if:
1. There
are
no
similar
characteristics
to
provide
a
common
background,
then
it
is
not
possible
for
these
words
to
give
meaning
to
the
general
words.
2. If
the
category
is
exhaustive,
such
that
the
general
words
following
must
refer
to
a
larger
genus
and
are
not
restrictive
(Rascal
Trucking)
7
Expressio
unius
est
exclusio
alterius:
a
general
word
of
phrase
takes
its
colour
as
well
from
the
specific
words
or
phrases
which
follow
it
as
from
those
that
precede
it.
Express
mention
of
one
thing
implies
exclusion
of
another.
(Fisher
v
Bell).
Other
aids:
1) Marginal
notes:
given
limited
weight
(Wigglesworth),
typically
not
used
but
the
court
may
use
these
to
support
interpretations
its
already
reached
(give
weight)
2) Headings:
essential
part
of
the
internal
context
(Wigglesworth)
3) Preamble:
Shall
be
read
as
part
of
the
enactment,
its
intention
is
to
assist
the
explanation
of
purpose
and
objective
(Interpretation
Act
s.13)(Provincial
Interpretation
Act
s.12(1))
4) Table
of
Contents:
not
part
of
the
enactment,
used
for
convenience.
Re
Rizzo
and
Rizzo
Shoes
[1998]
(Application
of
Modern
principle;
interpret
in
the
entire
context,
grammatical
and
ordinary
sense
harmoniously
with
the
scheme
and
objective
of
the
Act
and
intention
of
Parliament)
Ratio:
Rejected
the
plain
meaning
b/c
of
absurdity.
Instead
chose
to
read
the
Act
in
its
entire
context
and
in
harmony
w/scheme
and
objective
and
Parliaments
intention,
in
a
way
that
would
cause
no
conflict.
Didn’t
rely
on
Hansard
or
ministers
statements,
only
mentioned
in
passing
or
in
absence
of
other
evidence.
Facts:
Rizzo
shoe’s
goes
bankrupt
and
the
company’s
trustee
is
asking
if
they
are
still
entitled
to
pay
termination
and
vacation
pay
to
employees
under
Ontario
Employment
Standards
Act.
Issue:
Is
bankruptcy
termination
under
the
Ontario
Employment
Standards
Act?
Interpretations:
Trial
Court:
looked
@
plain
meaning,
found
YES.
Appeal
Court:
used
literal
approach,
termination
by
an
operation
of
law,
NO.
SCC:
Applied
the
modern
approach:
-‐ Context:
the
legislature
was
intended
that
termination
and
severance
pay
obligations
should
arise
if
employer
went
bankrupt.
The
inclusion
of
this
implies
that
the
severance/termination
pay
obligation
does
extend
to
bankrupt
employers.
*Plain
meaning
words
of
Act
in
context.
-‐ Purpose:
of
the
Act
was
to
protect
the
interests
of
employees.
-‐ Literal/Ordinary
meaning:
applied
the
Golden
Rule
otherwise
there
would
be
an
absurd
result.
An
employee
terminated
a
day
before
bankruptcy
would
be
titled
benefits
but
not
one
after
bankruptcy.
S.40
and
s.2(3)
would
be
incompatible
w/object
of
the
Act
and
termination
provisions
in
paragraph
27.
-‐ S.10
of
the
Interpretation
Act
applied;
every
Act
shall
receive,
fair,
large
and
liberal
construction
and
interpretation.
Modern
Principle.
8
Conclusion:
SCC
affirmed
preference
of
modern
approach;
the
context,
the
grammatical
and
ordinary
sense
of
words,
the
scheme,
object
and
intention
(mischief).
Also
that
legislation
doesn’t
intent
to
create
absurd
consequences,
b/c
it
is
benefits
incurring
legislation
it
requires
a
broad
and
purposive
approach.
Held
in
favor
of
employees.
9
United
Taxi
Drivers
Fellowship
of
Southern
Alberta
v
Calgary
[2004]
(affirms
that
courts
are
bound
to
Modern
Approach)
Rule:
Courts
are
bound
to
apply
approach
from
Bell
ExpressVu
(modern
approach)
unless
there
is
a
constitutional
challenge,
a
contextual
approach.
Facts:
Calgary
enacts
a
by-‐law
that
requires
taxi’s
to
have
taxi
license
plates
and
limits
the
number
of
plates
to
1,300.
As
a
result
of
the
freeze
there
is
a
monopoly
b/c
more
people
want
plates
than
exist
and
as
a
result
they
become
expensive
to
get.
Issue:
whether
s.9
of
the
Municipal
Government
Act
gave
municipalities
power
to
enact
bylaws
over
the
broad
range
of
matters
outlined
in
s.7
of
the
Act
including
the
limit
of
taxi
license
plates?
Interpretation:
-‐ SCC
states
that
the
proper
approach
is
a
“broad
and
purposive
approach
to
the
interpretation
of
municipal
powers.”
Modern
approach
and
the
Interpretation
Act.
-‐ S.7
and
8
when
read
together
give
the
whole
meaning
about
a
part
of
the
Act
and
that
“it
is
well
established
that
the
legislature
is
presumed
not
to
alter
the
law
by
implication.”
-‐ The
SCC
holds
that
on
an
ordinary
and
grammatical
meaning
the
words
“to
regulate”
give
the
authority
to
enact
bylaws
but
not
narrow,
broad
and
purposive.
-‐ In
this
Act
the
wording
was
changed
to
comply
w/broad
and
general
standards
set
in
the
statutes,
so
that
“where
a
legislature
intends
to
depart
from
prevailing
law,
it
will
do
so
expressly.”
However
there
is
no
indication
that
the
Act
was
intending
to
remove
the
power
from
the
Municipality
about
the
Taxi
Plate
Licenses.
-‐ The
approach
that
United
Taxi
takes
is
too
narrow.
10
-‐ The
court
holds
that
while
they
aren’t
an
integral
part
of
the
Charter
they
should
be
recognized
and
have
some
weight.
So
there
is
some
support
that
the
opening
words
of
s.11
“charged
w/an
offence”
restricts
the
application
of
the
s.
to
criminal
or
quasi-‐criminal
proceedings
and
proceedings
giving
rise
to
penal
consequences.
-‐ The
court
recognizes
that
headings
have
been
used
in
interpretations
in
the
past.
-‐ The
courts
decision
to
allow
the
interpretation
of
marginal
notes
is
in
direct
contrast
w/s.14
of
the
Federal
Interpretation
Act
that
says
they
shouldn’t
be
considered.
City
of
Nanaimo
v
Rascal
Trucking
[2000]
(application
of
Ejusdem
generis,
genus
wasn’t
exhausted,
supported
by
the
Golden
Rule,
(absurdity))
Rule:
Modern
approach
but
this
doesn’t
preclude
courts
from
common
law
context
tools,
applies
ejusdem
generis,
looking
at
the
other
words
within
the
Act,
and
application
of
the
Golden
Rule
to
avoid
absurdity.
Facts:
Rascal
Trucking
leased
some
land
and
had
a
permit
from
the
municipality
to
deposit
some
soil
w/the
intent
of
conducting
soil
processing.
There
were
complaints
about
noise
and
dust
from
neighbours.
After
a
public
meeting
the
council
passed
a
resolution
declaring
the
pile
of
soil
a
nuisance
pursuant
to
s.936
as
an
“other
matter
or
thing”
and
that
it
had
to
be
removed.
S.936(1)
“The
council
may
declare
a
building,
structure,,
or
erection
of
any
kind,
or
a
drain,
ditch,
watercourse,
pond,
surface
water
or
other
matter
or
thing….”
Issue:
Whether
s.936
empowered
the
appellant
to
pass
the
resolutions
declaring
the
pile
of
soil
a
nuisance
and
ordering
its
removal?
If
yes,
upon
what
standard
must
the
appellant’s
decision
be
reviewed?
Interpretation:
Trial
Court:
Held
Nanaimo
had
jurisdiction
to
declare
the
soil
a
nuisance.
Court
of
Appeal:
Held
that
Nanaimo
lacked
jurisdiction
to
declare
a
pile
of
soil
a
nuisance
and
order
its
removal.
SCC:
-‐ The
cities
argument
is
they
have
the
authority
to
declare
the
soil
a
nuisance
b/c
it
fits
into
the
category
of
“other
matter
or
thing.”
Based
on
the
fact
that
there
used
to
be
a
comma
before
this
phrase
and
that
the
legislation
should
be
read
as
if
the
comma
still
remains
b/c
it
should
be
read
in
a
broad
and
benevolent
manner.
-‐ The
court
rejects
this
argument
and
instead
prefers
the
appellants
argument
based
on
the
ejusdem
generis
(limited
class)
principle.
Whereby
the
classes
of
things
that
other
matter
or
thing
can
apply
to
must
be
erected
things
or
watercourses.
This
would
be
a
narrow
interpretation.
-‐ However
then
the
court
recognized
that
s.932
give
the
municipality
to
pass
a
by-‐law;
declaring
something
a
nuisance,
this
process
is
significantly
more
onerous
and
therefore
an
absurd
result
would
be
reached
if
the
soil
can’t
be
11
defined
as
a
nuisance
(golden
rule,
Rizzo
Shoes)
and
this
absurdity
can’t
have
been
intended.
-‐ So
the
court
looks
to
the
definition
of
an
erection
and
finds
that
the
pile
of
soil
fits
within
this
definition
because
the
soil
would
not
appear
on
its
own.
Grini
v
Grini
[1974]
(Exhaustion
of
ejusdem
generis,
uses
the
context
and
purposive
approach)
Rule:
When
the
words
in
a
provision
exhaust
a
genus
then
the
general
words
that
follow
must
be
understood
as
referring
to
a
larger
genus
and
not
be
interpreted
in
a
restrictive
manner.
Illness
and
disability
were
found
to
exhaust
the
genus
and
on
a
purposive
(mischief)
approach
education
was
found
to
be
within
the
category
of
“other
cause.”
Facts:
The
husband
wants
to
marry
someone
new,
he
petitions
for
a
divorce.
In
the
separation
agreement
he
agreed
to
make
maintenance
payments
to
his
former
wife
and
their
daughter.
The
wife
is
arguing
on
s.9(1)(e)
and
(f)
of
the
Divorce
Act.
The
husband
argues
that
he
has
the
right
to
terminate
the
payments
to
his
former
wife
if
the
divorce
is
granted
and
that
he
has
no
legal
obligation
to
his
daughter
who
is
not
a
child
of
the
marriage
within
the
meaning
of
s.2(b)
of
the
Act.
Issue:
Whether
the
respondent
by
the
terms
of
their
separation
agreement
defeated
her
claim
to
maintenance?
And
more
importantly
whether
the
daughter
continues
to
receive
maintenance?
Interpretation:
-‐ Before
the
daughter
can
receive
maintenance
the
court
must
find
her
to
fit
within
the
category
of
s.2(b)(ii)
by
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
father
argues
that
based
on
ejusdem
generis
“other
cause”
must
take
its
meaning
from
illness
or
disability
and
going
to
school
doesn’t
fit
in
this
category.
-‐ Court
holds
that
“other
cause”
must
apply
to
something
outside
the
illness
or
disability
genus
because
that
category
is
exhausted.
-‐ Therefore
“other
cause”
must
be
read
literally
and
this
can
include
attending
school.
12
Interpretation:
-‐ The
delinquent
argues
that
ejusdem
generis
applies
in
that
the
conditions
the
judge
can
impose
are
limited
to
those
in
the
prior
paragraphs
of
s.20(1).
-‐ The
court
finds
that
this
principle
doesn’t
apply
here
because
s.20(1)(g)
should
be
given
a
liberal
construction
by
looking
at
the
Act
as
a
whole.
-‐ The
Act
as
a
whole
advocates
for
the
court
to
act
like
a
wise
parent.
Therefore
the
court
finds
with
this
purpose
in
mind
then
restricting
driving
privileges
is
something
a
wise
parent
would
do
and
is
within
the
purpose
of
the
Act.
-‐ **for
exam
look
at
how
it
could
have
been
EG
and
why
it
was
found
not.
13
R
v
Popovic
and
Askov
[1975]
(look
to
legislative
history
for
context)
Rule:
In
assessing
a
provision
the
Court
will
look
at
the
current
meaning
but
when
this
isn’t
sufficient
b/c
there
is
still
ambiguity
they
can
look
to
previous
enactments
for
clarity
about
the
definition
or
substance
of
the
word.
Facts:
The
accused
charged
w/
2nd
degree
murder
under
s.213
of
the
1970
revision
of
the
Criminal
Code.
S.213
provided
that
the
offence
of
murder
occurred
where
the
death
of
a
person
was
caused
during
the
course
of
a
variety
of
offences,
in
this
case
a
burglary.
As
the
death
occurred
after
the
accused
had
broken
into
a
restaurant.
Issue:
Whether
or
not
the
accused
had
been
engaged
in
a
burglary
within
s.213?
Was
a
restaurant
considered
a
dwelling
that
a
burglary
could
occur
within?
Interpretation:
-‐ The
court
relies
on
the
Interpretation
Act
s.36,
which
states
that
where
an
enactment
is
repealed
and
substituted
w/a
new
one
then
the
new
statutes
should
be
interpreted
in
a
way
that
is
consistent.
-‐ In
this
case
there
was
ambiguity
about
whether
a
burglary
could
occur
in
a
restaurant,
and
the
court
found
that
a
burglary
within
the
meaning
of
s.213
had
consistently
been
only
applied
to
a
dwelling-‐house
(consistent
within
the
social
context.
-‐ The
court
finds
that
while
there
seems
to
be
some
inconsistency
with
the
social
understanding
of
a
burglary
and
the
Criminal
Code
this
is
up
to
the
legislation
to
change.
14
Fisher
v
Bell
[1960]
(the
common
law
will
be
applied
when
needed,
also
use
of
expressio
unis)
Rule:
An
offer
for
sale
w/o
further
definition
or
expression
will
be
construed
in
accordance
with
the
common
law
(current,
Amato
v
The
Queen).
Facts:
The
defendant
displays
a
knife
in
his
shop
window,
a
police
officer
notices
it
and
upon
inspection
finds
that
it
is
a
flick
knife
and
is
contraband
pursuant
to
s.1
of
the
Restriction
of
Offensive
Weapons
Act.
Issue:
Whether
the
display
of
the
knife
in
the
window
is
an
offer
of
sale?
Interpretation:
-‐ The
court
found
that
when
the
Act
was
enacted
the
term
“offer
for
sale”
was
not
defined
and
in
the
absence
of
a
definition
it
should
be
construed
using
the
laws
of
contracts
(common
law).
Based
on
this
reasoning
the
display
in
the
window
would
be
an
invitation
to
treat
not
an
offer,
as
that
could
only
occur
upon
sale.
-‐ The
court
recognizes
that
this
contradicts
the
ordinary
ROP
meaning
and
looks
to
the
intent
of
Parliament
but
finds
that
when
Parliament
had
desired
to
change
the
definition
of
a
word
it
has
included
a
definition
section.
-‐ Therefore
applying
expressio
unis
a
term
that
has
been
left
out
has
been
left
out
on
purpose.
Re:
Section
94(2)
of
the
Motor
Vehicle
Act
[1985]
(speeches
and
extrinsic
evidence
from
legislators
will
be
given
weight
but
minimal)
Rule:
when
deciding
constitutional
cases
the
minutes
from
meetings
and
speeches
can
be
given
some
weight
(minimal)
because
there
is
no
necessary
connection
between
the
intent
in
the
legislature
and
the
Act
on
paper.
Facts:
There
is
a
question
about
the
meaning
of
“the
principle
of
fundamental
justice”
in
s.7
of
the
Charter
and
whether
those
words
mean
purely
procedural
“rules
of
natural
justice”
or
were
more
substantive.
Issue:
Whether
the
minutes
and
proceedings
from
the
Special
Joint
Committee
have
any
weight
as
interpretive
aids
in
the
court?
And
if
so
what
weight?
Interpretation:
-‐ The
court
finds
that
there
is
no
general
rule
of
admissibility,
that
traditionally
these
things
were
not
given
any
weight
but
this
has
been
relaxed.
-‐ The
court
determines
that
whether
they
will
be
given
any
weight
depends
on
the
constitutional
issue
at
question
and
therefore
the
court
will
be
open
to
considering
extrinsic
evidence
but
the
weight
it
will
be
given
will
vary
because
of
the
inability
to
quantify
legislative
intent.
-‐ The
court
determines
that
speeches
from
legislator
will
be
given
minimal
weight
otherwise
the
court
would
have
to
make
significant
assumptions.
15
R
v
Sullivan
[1991]
(use
of
Hansard
and
legislative
history
in
examining
current
statutes)
Rule:
When
there
is
a
question
about
a
word
or
provision
the
court
may
examine
it
by
looking
at
the
Hansard
and
previous
legislative
history
to
determine
the
intention
behind
the
change.
Facts:
The
accused
were
charged
with
criminal
negligence
causing
death
“to
another
person.”
They
were
midwives
and
the
fetus
they
were
helping
to
deliver
died
due
to
their
alleged
negligence.
Issue:
Whether
a
fetus
is
a
person?
Interpretation:
-‐ The
terms
“person”
and
“human
being”
were
used
interchangeably
pre-‐1954.
-‐ The
court
looks
at
the
House
of
Commons
Debates
(Hansard)
to
see
that
there
was
no
indication
that
the
difference
between
“person”
and
“human
being”
was
even
considered
relevant.
They
find
that
the
members
of
the
house
didn’t
even
address
this
issue.
-‐
The
courts
find
that
the
introduction
in
criminal
negligence
provisions
was
not
intended
to
change
the
meaning
of
person
in
the
Code.
16
-‐ Gonthier
also
discusses
the
legislative
history
and
the
removal
of
the
word
wander,
as
a
sign
of
the
legislatures
intent
to
narrow
the
scope.
-‐ ***can
use
this
case
to
argue
against
the
inadmissibility
of
legislative
history
because
Cory
J
did
support
using
them
in
the
majority
in
the
decisions
of
Sullivan
and
Morgentaler.
Canada
AG
v
Mowat
[2009]
(Fundamental
principle
that
legal
authority
must
be
granted
and
the
grounds
for
this
must
be
found
using
the
modern
approach
looking
at
the,
context,
using
extrinsic
evidence
or
even
the
common
law.)
Rule:
The
Tribunal
doesn’t
have
the
inherent
authority
to
grant
“costs”
because
it
must
be
granted
its
powers
as
a
delegated
authority,
and
nowhere
in
the
context
or
extrinsic
evidence
(similar
statutes)
does
it
appear
that
this
authority
was
meant
to
be
granted.
Facts:
The
respondent
brought
an
action
forward
that
the
Canadian
Forces
for
harassment.
Her
claim
was
largely
unsuccessful
and
she
was
only
awarded
$5000.
She
however
also
sought
compensation
for
her
various
expenses
including
her
legal
costs.
The
Tribunal
awarded
her
$47,000
for
her
legal
costs,
the
AG
is
appealing
this.
Issue:
Do
the
words
“expenses
incurred
include
legal
costs
within
the
provisions
of
the
Canadian
Human
Rights
Act?
Interpretation:
-‐ Issue
here
is
the
distinction
between
legal
costs
and
expenses;
if
the
former
is
within
the
category
of
the
later.
This
is
because
the
Human
Rights
Tribunal
is
a
delegated
authority
and
therefore
does
not
have
inherent
authority
to
grant
costs
like
courts
do.
-‐ Therefore
the
authority
to
grant
costs
must
be
expressed
in
the
statute
and
the
AG
is
arguing
that
it
is
not
and
that
“costs”
have
a
different
legal
definition,
a
legal
art.
-‐ The
court
recognizes
that
costs
are
not
mentioned
anywhere
else
within
the
Act
and
that
this
is
indicative
of
Parliaments
intention
not
to
include
it.
They
also
briefly
look
at
the
argument
that
nostris
the
word
would
get
its
colour
17
from
those
around
including
“compensation”
but
find
that
this
narrows
the
scope
and
that
the
term
costs
is
a
legal
art.
-‐ The
court
then
looks
to
extrinsic
evidence,
particularly
similar
legislation
in
the
provinces
and
the
wording
of
these
provisions
and
finds
that
they
are
very
similar
but
the
mention
of
costs
is
explicit
and
as
a
result
the
lack
of
inclusion
here
can
be
seen
as
intentional
by
Parliament.
-‐ Based
on
the
context
and
the
internal
evidence
the
court
holds
that
the
exclusion
of
the
words
“costs”
was
intentional
and
therefore
the
tribunal
must
be
explicitly
granted
this
authority
before
it
can
grant
costs.
Retrospective
-‐ A
retrospective
changes
the
legal
consequences
of
something
in
the
past
but
is
only
applied
going
forward.
-‐ There
is
a
presumption
against
either
if
they
interfere
w/vested
rights.
-‐ However
this
presumption
can
be
rebutted
if:
o The
legislation
clearly
expresses
its
intention
to
take
away
this
right
or
diminish
it.
18
o Vested
rights
are
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.
Mandavia
v
Central
West
Health
Care
Institutions
Board
[2005]
(application
of
retrospective/retroactive,
examination
of
vested
rights,
the
three
presumptions)
Rule:
For
something
to
be
retroactive
it
must
change
the
past
legal
affect
of
an
action,
and
retrospective
if
it
simply
changes
the
legal
consequences
in
the
future.
The
provision
here
was
held
retrospective
and
rebutted
the
presumption
that
vested
rights
were
interfered.
Facts:
The
plaintiff
was
injured
in
Jan.
1989,
as
a
result
he
was
permanently
disabled.
His
contract
provided
that
his
workers
compensation
benefits
would
be
supplemented
to
make
up
the
difference
until
he
reached
65.
In
1993
he
retires,
w/o
knowledge
that
doing
so
will
mean
that
his
retirement
pension
will
no
longer
be
offset
by
the
workers
compensation
benefits
(top
ups).
When
he
discovers
this
he
brings
an
action
against
his
employer
for
negligent
misrepresentation.
A
law
is
passed
Jan,
1993
that
states
that
a
person
can
get
above
their
salary
but
only
until
1995.
The
argument
is
this
shouldn’t
apply
to
Manadiva.
Issue:
Whether
s.81.1(3)
which
states
“Where,
prior
to
the
coming
into
force
of
this
section”
…
“continues
until
operation
of
agreement
ceases
but
in
any
event
until
Jan.
1,
1995,”
of
the
Workplace
Health,
Safety,
and
Compensation
Act
is
retrospective
or
retroactive
and
thus
interferes
w/his
vested
rights?
Interpretation:
-‐ Mandavia
holds
that
he
wouldn’t
have
retired
until
later
if
he
had
known
this
information.
The
defendant
holds
that
s.81.1(3)
means
that
these
top
ups
would
have
ceased
on
Jan.
1,
1995.
-‐ The
court
examines
the
presumptions
about
retroactive
application
and
its
common
law
application;
where
there
is
a
strong
presumption
against
19
retroactivity
and
a
weaker
presumption
against
interference
w/vested
rights.
However
there
is
no
presumption
against
retrospectivity.
-‐ The
defendant
argues
that
his
claims
to
vested
rights
are
rebutted
because
the
law
was
intentionally
retrospective.
Dikranian
v
Quebec
AG
[2005]
(rules
for
whether
or
not
someone
has
vested
rights)
Rule:
The
court
finds
that
his
rights
were
vested
b/c
it
was
a
clear,
concrete
individual
situation
and
therefore
the
Act
as
amended
could
not
apply
to
him.
Facts:
A
student
from
Quebec
took
out
a
student
loan
from
the
government.
He
finished
his
studies
in
1998.
In
1997
the
Government
of
Quebec
changed
the
terms
of
the
agreement
shortening
the
period
that
students
were
exempt
from
interest
payments.
In
1998
it
was
amended
again.
As
a
result
the
government
stopped
paying
his
interest
payments
and
he
immediately
had
to
start
making
payments.
Issue:
Whether
the
QB
government’s
changes
to
the
AFAS
and
RFAS
applied
to
the
student?
Interpretation:
-‐ The
court
recognizes
that
while
the
government
signs
on
to
make
the
interest
payments
for
a
period
of
time
the
loan
contract
actually
takes
place
b/w
the
student
and
the
financial
institution.
-‐ Therefore
the
question
is
can
this
contract
be
modified
by
legislation
enacted
by
the
government
changing
the
terms
of
interest
repayment
and
the
court
determines
that
if
the
government
intended
to
do
this
then
it
must
be
expressed.
-‐ It
then
sets
out
the
criteria
for
vested
rights:
5. The
relevant
legislation
must
be
reasonably
susceptible
of
two
interpretations.
6. The
judicial
situation
must
be
tangible,
concrete
and
distinctive.
7. The
situation
must
be
sufficiently
constituted
at
the
time
of
the
statutes
commencement,
it
must
have
materialized
(in
a
contract).
8. It
must
be
related
to
a
specific
individual.
-‐ The
plaintiff
was
arguing
that
in
making
him
pay
the
interest
the
Act
was
retroactive
and
that
his
vested
rights
were
interfered
w/because
they
were
formed
when
he
signed
the
original
contract.
-‐ However
the
court
finds
that
his
loan
was
not
a
“judicial
situation
in
progress”
because
he
had
already
signed
the
document
and
therefore
he
did
have
a
previously
granted
vested
right.
-‐ This
case
contrasts
Mandavia
where
there
was
a
presumption
against
vested
rights.
20
Angus
v
Hart
[1988]
(If
a
provision
is
substantial
there
will
be
a
presumption
against
it
that
it
cannot
be
applied
retrospectively
b/c
of
sub
rights).
Rule:
Whether
a
provision
is
substantial
or
not
is
determined
looking
at
whether
it
affects
their
substantive
rights.
A
purely
procedural
provision
will
not
have
the
presumption
against
it
that
it
cannot
be
applied
retrospectively
because
no
substantive
rights
are
affected.
Facts:
The
wife
is
injured
in
a
car
accident
while
her
former
husband
is
driving.
At
the
time
of
the
accident
she
cannot
recover
against
her
husband
or
her
father
(the
car
owner)
because
of
s.7
of
The
Married
Woman’s
Property
Act
and
s.214
of
the
Insurance
Act.
Two
months
after
the
accident
the
Family
Law
Reform
Act
was
amended
and
she
would
have
been
able
to
sue
her
husband
in
tort.
Issue:
Whether
the
amendments
to
the
Family
Law
Reform
Act
are
retrospective
so
that
she
could
sue
her
husband?
Whether
the
provisions
are
substantive
or
procedural?
Interpretation:
-‐ The
court
finds
that
s.7
is
substantive
because
it
affects
his
ability
to
have
a
defence
against
her
claim
in
tort,
and
because
of
this
a
presumption
against
retrospectivity
is
applied.
-‐ If
it
was
purely
procedural,
it
would
only
be
concerned
with
the
application
and
practice
of
the
courts.
-‐ The
key
to
determining
whether
a
provision
is
substantive
or
not
is
done
but
looking
at
its
substantive
effect
and
whether
it
affects
someone’s
rights.
21
3. Statutes
that
impose
a
penalty
on
a
person
who
is
described
by
reference
to
a
prior
even
but
the
penalty
isn’t
intended
as
further
punishment
–
no
presumption.
- Based
on
this
the
court
finds
that
Brosseau
can’t
be
punished
retroactively
for
things
he
has
done
in
the
past
however
there
is
no
presumption
against
him
being
punished
retrospectively
to
protect
the
public.
Wener
v
Davidson
[1972]
(common
law
will
be
relied
on
to
fill
gaps
in
statutes
that
are
not
strict).
Rule:
A
statute
is
a
code
if
it
embraces
all
of
the
common
law.
If
not
then
the
common
law
can
step
in
to
fill
in
gaps
and
the
common
law
is
understood
to
continue
unless
there
is
clear
intention
to
change
it.
Facts:
A
wife
is
trying
to
bring
an
action
against
her
husband’s
mistress
for
damages
as
a
result
of
her
enticing
the
husband
away.
She
is
suing
in
consortium.
Issue:
Whether
the
wife
has
a
cause
of
action
against
the
mistress?
Will
the
common
law
provide
a
course
of
action
if
there
isn’t
one
in
the
statutes?
Interpretation:
- The
court
begins
by
determining
whether
the
Domestic
Relations
Act
is
a
code,
to
which
it
finds
it
is
not
and
therefore
she
isn’t
barred
from
a
course
of
action
for
this
reason.
- The
court
then
tries
to
construe
the
Act
within
the
common
law
such
that
the
wife
would
have
a
cause
of
action
for
loss
of
consortium.
- The
Court
finds
that
as
the
Act
is
not
a
strict
code
and
this
would
seem
available
in
the
common
law
then
this
action
must
exist.
- Basically
unless
a
statute
expressly
prevents
a
cause
of
action
(Angus
v
Hart)
then
the
common
law
will
be
looked
to
in
determining
whether
this
right
should
exist
or
not.
22
Interpretation
Act
Excerpts
British
Columbia
Enactment
remedial
8 Every enactment must be construed as being remedial, and must be given such fair, large and
liberal construction and interpretation as best ensures the attainment of its objects
Amending
enactment
part
of
enactment
amended
34 An amending enactment must be construed as part of the enactment that it amends.
Repeal
35 (1) If all or part of an enactment is repealed, the repeal does not
(a) revive an enactment or thing not in force or existing immediately before the time
when the repeal takes effect,
(b) affect the previous operation of the enactment so repealed or anything done or
suffered under it,
(c) affect a right or obligation acquired, accrued, accruing or incurred under the
enactment so repealed,
(d) subject to section 36 (1) (d), affect an offence committed against or a contravention of
the repealed enactment, or a penalty, forfeiture or punishment incurred under it, or
(e) affect an investigation, proceeding or remedy for the right, obligation, penalty,
forfeiture or punishment.
(2) Subject to section 36 (1), an investigation, proceeding or remedy described in
subsection (1) (e) may be instituted, continued or enforced and the penalty, forfeiture or
punishment imposed as if the enactment had not been repealed.
23
Enactments
Remedial
Enactments deemed remedial
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.
24