Statutory Interpretation

Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), (1998) 1 SCR 27

Interpretation Act, R.S.O. 1990, c. I.11

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

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17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law.

20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, 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.

Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, 1997 CanLII 318 (SCC), (1997) 3 S.C.R. 213**; Royal Bank of Canada v. Sparrow Electric Corp., 1997 CanLII 377 (SCC), (1997) 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, 1996 CanLII 186 (SCC), (1996) 3 S.C.R. 550; Friesen v. Canada, 1995 CanLII 62 (SCC), (1995) 3 S.C.R. 103.

Thomas Albert Cromwell, Siena Anstis and Thomas Touchie, Revisiting The Role of Presumptions of Legislative Intent in Statutory Interpretation

(Page 297):

Our proposal seeks to provide a uniform methodology for the use of substantive presumptions by incorporating them into the contextual analysis mandated by the modern approach set out in Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27, 154 DLR (4th) 193. Rejecting the language of “presumptions” and rules of “strict” or “liberal” construction, it argues in favour of interpretation that relies on a transparent discussion of all relevant sources of statutory meaning (including textual and contextual sources, such as the values underlying substantive presumptions) and against a reflexive or mechanical application of substantive presumptions.

(Page 299)

In Canada, two legal developments require us to fundamentally reassess the role of substantive presumptions in statutory interpretation. 5 The first development is the constitutional entrenchment of fundamental rights in the Constitution Act of 1982, coupled with the fact that these rights and freedoms may be limited where such a need may be demonstrably justified in a free and democratic society. 6 This development diminishes the importance of—and perhaps undermines the legitimacy of—using judicially created presumptions of intent as a sort of quasi-constitutional protection against legislative and executive excesses. Why, it may be asked, should the democratically entrenched set of rights and freedoms require supplemental protection by rules of construction? This question forms part of a normative critique of presumptions of legislative intent, which considers whether courts are justified in using presumptions as interpretive tools. In addition to constitutional considerations, this critique questions the validity of the underlying justification for substantive presumptions, namely by asking whether the values represented by the presumptions can truly be assumed to be in the legislature’s mind at the time of drafting. Finally, this critique inquires as to whether presumptions are simply discretionary tools for judges to produce certain policy outcomes when they so desire. 7

(Page 300)

The second development is the unequivocal adoption of the “modern approach” in Canadian statutory interpretation. 8 This approach mandates that “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.” 9 In their current use, however, substantive presumptions of intent are not always congruent with this approach; applied as mandatory rules, for example, they may be used to defeat the results of this fully contextual approach. This issue forms part of the methodological critique of presumptions, which asks when and how presumptions of legislative intent should be used by the judiciary as well as how substantive presumptions relate to other approaches to statutory interpretation. 10

Interpretation Act, R.S.O. 1990, c. I.11

Meaning of expressions used in instruments issued under an Act
6. Where an Act confers power to make, grant or issue an order, warrant, scheme, letters patent, rule, regulation or by-law, expressions used therein, unless the contrary intention appears, have the same meaning as in the Act conferring the power.

Regulations
23. The Lieutenant Governor in Council may make regulations for the due enforcement and carrying into effect of any Act of the Legislature and, where there is no provision in the Act, may prescribe forms and may fix fees to be charged by all officers and persons by whom anything is required to be done. R.S.O. 1990, c. I.11, s. 23.

Implied provisions,
28. In every Act, unless the contrary intention appears,

power to make by-laws, etc., to confer power to alter

(g) where power is conferred to make by-laws, regulations, rules or orders, it includes power to alter or revoke the same from time to time and make others;

Words and terms
29. (1) In every Act, unless the context otherwise requires,

“writing”, “written”, or any term of like import, includes words printed, painted, engraved, lithographed, photographed, or represented or reproduced by any other mode in a visible form; (“écrit”)

Legal matters 30. The interpretation section of the Courts of Justice Act extends to all Acts relating to legal matters. R.S.O. 1990, c. I.11, s. 30; 1993, c. 27, Sched.