Falling Within a Statute (Statutory Interpretation)

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Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-10-07
CLNP Page ID: 1963
Page Categories: [Statutory Interpretation]
Citation: Falling Within a Statute (Statutory Interpretation), CLNP 1963, <>, retrieved on 2022-10-07
Editor: Sharvey
Last Updated: 2022/08/02


Barreiro v. Arana, 2003 BCCA 58 (CanLII)[1]

[14] I will not delve deeply into this complex subject, but I will note that the interpretation of words and phrases within a statute is said by Professor F. Bowers to be a “situational” analysis. In his book, Linguistic Aspects of Legislative Expression, University of British Columbia Press, 1989, he says as follows at page 53:

A public statute, whether it is declaratory, remedial, codifying, enabling, or penal is concerned with the conduct of social affairs and the granting of permissions or the imposing of obligations on members of society. The particular status of a statute, then, is at the very summit of seriousness and authority within a society.

[15] Professor Bowers cites Brett v. Brett (1826), 3 Addams 210, wherein at 216 Sir John Nicholl, M.R. said that to arrive at the true meaning of a phrase in a statute, it is “not to be viewed detached from its context, meaning by this as well the title and the preamble as the purview or enacting part of the statute.” I would say that to arrive at the true meaning of a word or concept within a statute requires the same approach. It is important to note that the consent under analysis in the case at bar is the consent referred to in legislation that governs liability for the use of motor vehicles.


[1]

CFFO Accreditation (Re), 2012 ONAFRAAT 22 (CanLII)[2]

This inconsistent use of the word “member” is in apparent conflict with a basic principle of statutory interpretation, often described as the “presumption of consistent expression.” As stated in Sullivan on the Construction of Statutes, 5th ed., at pp. 214-215, “[i]t is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings.” This presumption is particularly strong where the provisions in which the repeated words appear are close together or otherwise related to each other (see Sullivan, supra, at pp. 215-216 and 221).

[2]

Ontario Securities Commission v. Tiffin, 2018 ONSC 3047 (CanLII)[3]

[31] It is not uncommon for legislation to include a brief preamble or purposes section. These provisions are useful in the interpretation of an ambiguous provision within a statute, and in determining the vires of a regulation -- whether it is authorized by the statute under which it is made (see Wildlands League v. Lieutenant Governor in Council (2016), 134 O.R. (3d) 450, [2016] O.J. No. 5230, 2016 ONCA 741, at para. 39[4]). There is, however, no requirement that every section of a statute be consistent with the brief statement of purpose(s) or preamble. Legislation is the product of multiple, often competing, purposes that lead to certain compromises, and complex statutory schemes frequently contain provisions that may appear to be inconsistent with the general purpose of the statute. These apparent inconsistencies can usually be explained by identifying the competing, often [page233] unstated, legislative objectives that resulted in the final statutory balance that comprises the legislative scheme.1

[32] I also have some difficulty with the trial judge's statement, at para. 28, that the definition of "security" in the Act "casts too wide a net and is inconsistent with the purpose of the Act".

[33] There is, in my view, an important distinction between "casting too wide a net" and actual inconsistency with the purposes of an Act. Where the legislature acts to protect vulnerable segments of society it often casts its net widely to ensure that it captures all targeted activity. This breadth is deliberate, and consistent with the remedial purpose of the act. In the absence of a constitutional challenge for overbreadth, this is not an invitation for the creation of judicially crafted criteria to scale back the scope of the law.

[34] This analysis is, in my view, consistent with the modern approach to statutory interpretation, which requires the court to consider the words of the section in their entire context, with regard to the ordinary and grammatical meaning, and in harmony with the scheme of the Act, the object of the Act and the intention of the legislature: Rooney v. ArcelorMittal S.A. (2016), 133 O.R. (3d) 287, [2016] O.J. No. 4347, 2016 ONCA 630, at paras. 39 and 62[5].

[35] In Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622, [1999] S.C.J. No. 30, 1999 CanLII 647[6], the Supreme Court of Canada stated, at para. 43:

The Act is a complex statute through which Parliament seeks to balance a myriad of principles. This Court has consistently held that courts must therefore be cautious before finding within the clear provisions of the Act an unexpressed legislative intention . . . Finding unexpressed legislative intentions under the guise of purposive interpretation runs the risk of upsetting the balance Parliament has attempted to strike in the Act.


[3] [4] [5] [6]

George Brown College v Ontario Public Service Employees Union, 2015 CanLII 78722 (ON LRB)[7]

5. I find that the proposed evidence will not assist the Board in making the determination at hand. Assessing whether Ms. Lee ought to be included in the full time support staff bargaining unit necessarily requires an analysis of the job duties that she performs to determine whether the nature of her job duties justifies excluding her from the bargaining unit. The general focus of this determination is assessing the extent to which including Ms. Lee in the bargaining unit would create difficulties for the College. Since the bargaining unit is stipulated by statute, I do not find that the Board can take guidance from the parties’ practices vis-à-vis other employees when it comes to determining who ought to be included in the bargaining unit. The College relies upon the decision of George Brown College and Ontario Public Service Employees Union Local 557, an unreported decision of Arbitrator Jane H. Devlin (June 23, 2011). The Arbitration Board considered whether the union could call evidence similar to that being proposed in the instant case. The issue was whether an individual was excluded from the bargaining unit pursuant to paragraphs 5(a) through (d) of Schedule 1 of the CCBA. The Arbitration Board had this to say at pp. 9-10:

Given the provisions of the Colleges Collective Bargaining Act, 2008, there appeared to be no dispute that the scope of the support staff bargaining unit is defined by statute. In these circumstances, the parties cannot agree to the inclusion or exclusion of an employee from the bargaining unit which does not accord with the statutory definition. In Waito v. La Cité Collégiale and Ontario Public Service Employees Union [1998] OLRB Rep July/August 636, the applicant complained that the union and the college had breached the Colleges Collective Bargaining Act by treating her as a contract employee rather than a member of the bargaining unit. In upholding the complaint, the Labour Relations Board found that the parties were not free to determine the scope of the bargaining unit because the unit was prescribed by statute. Accordingly, it was held that the statute and not the agreement of the parties governed the matter of inclusion or exclusion from the bargaining unit. In this regard, the Board commented as follows:
Employer counsel argued, as will be set out in more detail below, that the parties were free to treat positions as not in the bargaining unit, and did so out of bona fide operational concerns in the start-up phase of the College. That proposition may be valid in a situation where the parties are free to determine the scope of the bargaining unit between them. However, I am not persuaded that it has any validity where the statute prescribes the bargaining unit. It is trite law that the parties cannot contract out of a statute. The statute, not the parties’ consent, gives rights to individual employees to be in the bargaining unit and to be represented by a bargaining agent, as well as to the union to represent those employees.


[7]

References

  1. 1.0 1.1 Barreiro v. Arana, 2003 BCCA 58 (CanLII), <https://canlii.ca/t/5dnq>, retrieved on 2022-08-02
  2. 2.0 2.1 CFFO Accreditation (Re), 2012 ONAFRAAT 22 (CanLII), <https://canlii.ca/t/g26rh>, retrieved on 2022-08-02
  3. 3.0 3.1 Ontario Securities Commission v. Tiffin, 2018 ONSC 3047 (CanLII), <https://canlii.ca/t/hs1w0>, retrieved on 2022-08-02
  4. 4.0 4.1 Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741 (CanLII), <https://canlii.ca/t/gv2rg>, retrieved on 2022-08-02
  5. 5.0 5.1 Rooney v. ArcelorMittal S.A., 2016 ONCA 630 (CanLII), <https://canlii.ca/t/gt08c>, retrieved on 2022-08-02
  6. 6.0 6.1 Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] 3 SCR 622, <https://canlii.ca/t/1fqmd>, retrieved on 2022-08-02
  7. 7.0 7.1 George Brown College v Ontario Public Service Employees Union, 2015 CanLII 78722 (ON LRB), <https://canlii.ca/t/gmbg9>, retrieved on 2022-08-02