Contra Proferentum

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	24
Page Categories:	Legal Principles
Citation:	Contra Proferentum, CLNP 24, <7x>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2023/02/06

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Millennium Veterinary Hospital Corporation v. SR & R Bay Ridges Ltd., 2007 CanLII 28328 (ON SC)

[21] The doctrine of contra proferentum establishes that when words in a lease or contract are imprecise, then the interpretation most favourable, within reason, to the person who is not the drafter of the agreement must be adopted. City of Toronto v. Greenspoon Brothers Ltd., (1980) O.J. No. 3647 (Ont. C.A.).

Watson v. Canada, 2020 FC 129 (CanLII)

[79] As summarized in the Historical Evidence section below, some of the relevant archival evidence is unclear at best and contradictory at worst. The parties have each suggested that the Court apply opposing presumptions to interpret gaps in the historical record: the rule of contra proferentem and the presumption of regularity. Although I have applied these presumptions in a limited fashion, I have refused to adopt the presumptions as broadly as proposed by the parties. Instead, I have focussed on the meaning of documents based on the likely common intention of the parties and the historical context, aided by the expert witnesses.

[80] The Watson Plaintiffs suggested that the Court apply a contra proferentem-like rule, usually applicable in contractual interpretation, to interpret ambiguities in the documentary record in favour of the Indigenous Plaintiffs. However, the contra proferentem rule is not meant to interpret every ambiguity in every Crown-held document in favour of a First Nation.

[81] A contra proferentem-like rule does apply to the interpretation of historic treaties and statutes affecting Aboriginal or treaty rights. In the context of historic treaties, the purpose of this rule is to account for the fact that the Crown had a superior bargaining position in negotiating treaties; treaties were drafted in a non-Indigenous language, and treaties incorporated legal principles with which Indigenous signatories were not familiar: Mitchell v Peguis Indian Band, 1990 CanLII 117 (SCC), (1990) 2 SCR 85 at 117, 110 NR 241; R v Badger, 1996 CanLII 236 (SCC), (1996) 1 SCR 771 at para 52, 133 DLR (4th) 324 (Badger). Statutory provisions that may be interpreted to limit treaty rights, such as through the surrender of lands, also are construed narrowly with the requirement that the Crown show a clear and plain intention to extinguish treaty rights (Badger at para 41).

[82] When interpreting historical documents maintained by the Crown as a whole, the Court is first to look at the historic context and should consider that written records were primarily maintained by Europeans (see Ahousaht Indian Band v Canada (Attorney General), 2009 BCSC 1494 at para 62, 182 ACWS (3d) 501, var’d by 2013 BCCA 300; Shot Both Sides at para 57).

[83] However, this does not mean that gaps or ambiguities in all archival documents will be interpreted to favour an Indigenous perspective. For example, where an expected government document is missing in the historical record, courts have tended to find that the document likely never existed. This can work in favour of the Indigenous group, as in Chippewas of Sarnia Band v Canada (Attorney General), 1999 CarswellOnt 1244 at para 76, 88 ACWS (3d) 728 (Sup Ct J), rev’d in (2000), 2000 CanLII 16991 (ON CA), 51 OR (3d) 641 (CA), where the Ontario Superior Court of Justice accepted that a surrender document never existed because there was no surrender document found in the historical record. However, this can also work against an Indigenous group’s interest as in Benoit v Canada, 2003 FCA 236 at paras 40-41, 228 DLR (4th) 1, where the Federal Court of Appeal found that the silence of historical affidavits on an alleged treaty promise could be evidence that there was no treaty promise made.

[84] I also find that the presumption of regularity cannot be generally applied in this case to interpret gaps in the record. The presumption is based on the premise that a public official can be presumed to fulfill a prescribed procedural requirement where there is no evidence to the contrary (see e.g. Martselos v Salt River First Nation 195, 2008 FC 8 at paras 26-28, 163 ACWS (3d) 331 citing Irvine v Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), (1987) 1 SCR 181 at para 38, 41 DLR (4th) 429).

[85] Canada appears to suggest that the presumption should apply when determining whether the Historic Bands consented to the re-location of their reserve lands and were consulted regarding the amalgamation.

[86] As described below, the historical record is arguably unclear as to whether the lands set aside for the Chacachas and Kakisiwew Bands were even reserves - a position government officials took from time to time. In this context, it does not follow that the Court could assume that public officials did whatever they were supposed to do when the nature of their obligations appears to be unclear. In addition, there was no clear or established policy or practice for the amalgamation of bands in the 1880s. Therefore, the Court cannot presume that government officials followed any prescribed process for amalgamation when no process had been established.

Frankie Tomatto’s Woodbine Inc. v. Moneris Solutions Corporation, 2009 CanLII 28205 (ON SC)

[32] The Agreement is one of adhesion as admitted by all parties to the litigation. It is a one-way agreement on a standard pre-printed form prepared by Moneris which provided no choice or opportunity to negotiate the terms. Contracts of adhesion will be strictly construed against the maker in accordance with the contra proferentum rule. (See: Manulife Bank of Canada v. Conlin (1996), 1996 CanLII 182 (SCC), 30 O.R. (3d) 577 (S.C.C.) and Shelanu Inc. v. Print Three Franchising Corp. (2002), 2003 CanLII 52151 (ON CA), 64 O.R. (3d) 533 (C.A.).)

...

[42] The Ontario Court of Appeal has held that, “Incorporation of terms into a contract by reference to an outside document should not occur unless notice of the terms to be incorporated has been provided in a manner that would lead the reasonable person to conclude that they were to be incorporated into the contract”. (See: Morgan Trust Co. of Canada v. Falloncrest Financial Corp. (2006), 2006 CanLII 38728 (ON CA), 218 O.A.C. 71 (C.A.) at para. 26.)

[43] In my view, there is far too much uncertainty with respect to which rules Frankie was to abide by. The Agreement provided that Frankie was required to abide by the “Card Association Rules and Regulations”. However, there was no document that bears that title in printed form or on any of the websites of Moneris, BMO or MasterCard. There was a Merchant Rules Manual on the MasterCard website, but even if that was what is referred to as the Card Association Rules and Regulations, Moneris did not comply with the Agreement by advising Frankie of the Merchant Rules Manual as it was required to do pursuant to the clause referred to in paragraph [34] above.

[44] Contracts of adhesion are strictly construed against their makers. As held by the Supreme Court of Canada, where there is any ambiguity in the terms used in the contract of adhesion, the words of the contract should be construed against the party that drew it by applying the contra preferentum rule. It stated that this is a sensible rule because “the lending institutions that normally draft these agreements can readily amend their documents to ensure that they are free from ambiguity”. (See: Manulife Bank of Canada v. Conlin (1996), 1996 CanLII 182 (SCC), 6 R.P.R. (3d) 1 (S.C.C.) at paras. 7-9.)