Statutory Interpretation - Re: Principles of

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

4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning. R.S.O. 1990, c. I.11, s. 4.

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. R.S.O. 1990, c. I.11, s. 6.

8. The preamble of an Act shall be deemed a part thereof and is intended to assist in explaining the purport and object of the Act. R.S.O. 1990, c. I.11, s. 8.

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing 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. R.S.O. 1990, c. I.11, s. 10.

11. No Act affects the rights of Her Majesty, Her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby. R.S.O. 1990, c. I.11, s. 11.

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.

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.

Courts of Justice Act, R.S.O. 1990, c. C.43

1 (1) In this Act,

“action” means a civil proceeding that is not an application and includes a proceeding commenced by,

(a) claim,

(b) statement of claim,

(c) notice of action,

(d) counterclaim,

(e) crossclaim,

(f) third or subsequent party claim, or

(g) divorce petition or counterpetition; (“action”)

“application” means a civil proceeding that is commenced by notice of application or by application; (“requête”)

“defendant” means a person against whom an action is commenced; (“défendeur”)

“hearing” includes a trial; (“audience”)

“motion” means a motion in a proceeding or an intended proceeding; (“motion”)

“order” includes a judgment or decree; (“ordonnance”)

“plaintiff” means a person who commences an action; (“demandeur”)

“region” means a region prescribed under section 79.1. (“région”) R.S.O. 1990, c. C.43, s. 1; 1993, c. 27, Sched.; 2006, c. 21, Sched. A, s. 1.

(2) This section applies to all other Acts affecting or relating to the courts and the administration of justice. 2006, c. 21, Sched. F, s. 106

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)

[115] Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.

[116] Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.

[117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must 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”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (CanLII)

[22] At the outset, I note that the parties agree that the statutory interpretation issues raised by these appeals involve questions of law and thus the standard of review is correctness.

[23] With respect to the general principles of statutory interpretation, the Supreme Court has repeatedly reaffirmed the modern approach espoused in E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87 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”: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; and Indalex Ltd., Re, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 136. I analyze both statutes in greater detail below to explain the relevant scheme and objects of the OLA and CPA, as well as the legislative intent.

[41] The Supreme Court set out the principles of statutory interpretation with respect to the analysis of conflicting statutes in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at paras. 88ff. In that case, Air Canada failed to provide services in French on some international flights as required under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.). The applicant applied to the Federal Court for a remedy of damages but Air Canada contended that the Carriage by Air Act, R.S.C. 1985, c. C-26 precluded such liability. In analyzing whether a conflict existed between the two statutes, the Supreme Court held at para. 92:

First, courts take a restrictive approach to what constitutes a conflict in this context. Second, courts find that there is a conflict only when the existence of the conflict, in the restrictive sense of the word, cannot be avoided by interpretation. Overlap on its own, does not constitute conflict in this context, so that even where the ambit of two provisions overlaps, there is a presumption that they both are meant to apply, provided that they can do so without producing absurd results. This presumption may be rebutted if one of the provisions was intended to cover the subject matter exhaustively. Third, only where a conflict is unavoidable should the court resort to statutory provisions and principles of interpretation concerned with which law takes precedence over the other.

[42] I recognize that the above rules of statutory interpretation urge an approach that avoids a finding that two statutes conflict. This approach is premised upon the “presumption of perfection”.[5] However, those interpretive rules still recognize that conflicts will arise. For example, courts have held that a conflict between two statutes arises where:

(a) provisions are so inconsistent or “repugnant” to each other that they are “incapable of standing together” (Reference re Broadcasting Act, S.C. 1991 (Canada), 2012 SCC 68, [2012] 3 S.C.R. 489, at paras. 41-45);

(b) the application of one provision must implicitly or explicitly preclude the application of another (Lévis (Ville) v. Côté, 2007 SCC 14, [2007] 1 S.C.R. 591, at paras. 48-49); or

(c) two pieces of legislation are “directly contradictory or where their concurrent application would lead to unreasonable or absurd results” (Lévis, at para. 47 and Thibodeau, at para. 95).

Ackland v. Young-Esplanade Enterprises LTd., 1992 CanLII 8643 (ON CA)

[19] In Budinsky v. Breakers East Inc. (1992), 1992 CanLII 7637 (ON SC), 87 D.L.R. (4th) 572 at pp. 598-602, 23 R.P.R. (2d) 54, 6 O.R. (3d) 255 (Gen. Div.), Borins J. disagreed with the decision of Keenan J. in the present case and held that the higher interest rate on balances over $5,000 paid by the Province of Ontario Savings Office was the correct rate. We heard an appeal and a cross-appeal from Borins J.'s judgment in Budinsky at the same time as the present appeal was heard. The issue relating to the rate of interest was the subject-matter of the cross-appeal.

[20] In Budinsky, Borins J. said at p. 601:

The language of s. 33 speaks to future events. In this regard, s. 4 of the Interpretation Act, R.S.O. 1980, c. 219, applies and provides that "[t]he law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning".

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.

...

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