Permissive v. Restrictive (Assumptions)

From Riverview Legal Group

Alberta (Director of Child, Youth and Family Enhancement) v DCR, 2019 ABQB 47 (CanLII)[1]

[66] Subsection 126(1) begins as follows: “The Minister ... may disclose or communicate personal information ...” [emphasis added]. Under s 28(2)(c) of the Interpretation Act,

In an enactment, ...

(c) “may” shall be construed as permissive and empowering.

[67] Paragraph 28(2)(c) is compelling. However, s 3(1) of the Interpretation Act qualifies its application: “This Act applies to the interpretation of every enactment except to the extent that a contrary intention appears in this Act or the enactment” [emphasis added]. Professor Sullivan has cautioned that “may” language is not determinative. Statutory context may dictate that what might appear to signal a discretion is actually an obligation. “Both conceptually and in practice, permission and obligation are overlapping categories. An official who is obliged to do a thing is implicitly permitted to do it; an official who is permitted to do a thing may, in addition, be obliged to do it:” Construction of Statutes, §4.57. “The interpreter must determine whether there is anything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power:” Construction of Statutes, §4.62. See Alberta v Sykes at paras 24 and 31.

[68] It is not that the word “may” can ever itself be transformed to mean “shall.” Rather, the authority or power denoted by “may” could be coupled with a duty. The duty would be inferred from statutory purpose and other aspects of the Act or (as in the SKD case) from legislative or constitutional sources outside the Act.



  1. 1.0 1.1 Alberta (Director of Child, Youth and Family Enhancement) v DCR, 2019 ABQB 47 (CanLII), <>, retrieved on 2020-09-10