INTERPRETING LEGISLATION— A GUIDE FOR PRACTITIONERS

Online Continuing Legal Education January 20, 2012

The Canadian Bar Association—Nova Scotia presents

Presenters

James Charlton Legislative Counsel

Office of the Legislative Counsel, Nova Scotia House of Assembly

Scott McCrossin Counsel

Department of Justice Canada

Overview

• The Legislative Process

• Anatomy of an Act

• How to Approach a Question of Statutory Interpretation

• Extrinsic Aids to Statutory Interpretation

The Legislative Process

The Legislative Process

• Three readings in each legislative chamber

• Committee study/opportunity for amendment

• Royal Assent by Governor General or Lieutenant Governor required for bill to become law

The Legislative Process at the Nova Scotia House of Assembly

Types of Bills

• Public Bills – Government Bills – Private Member’s Public Bills

• Private Bills

• Local Bills

The Legislative Process at the Nova Scotia House of Assembly

Stages of the Legislative Process

• Introduction and First Reading

• Second Reading

• Committee Stage

• Reporting Back

The Legislative Process at the Nova Scotia House of Assembly

Stages of the Legislative Process

• Committee of the Whole House on Bills

• Third Reading

• Royal Assent and Effective Date

The Legislative Process at the Parliament of Canada

• Parliament of Canada is bicameral (has two legislative chambers—House of Commons and Senate)

• Legislation must receive three readings in each of House of Commons and Senate

• Bill number of bills originating in House of Commons preceded by “C-”, e.g., C-14; that of bills originating in Senate preceded by “S”, e.g., S-2

The Legislative Process at the Parliament of Canada

Types of Bills

• Public Bills – Government Bills – Private Member’s Public Bills

• Private Bills

The Legislative Process at the Parliament of Canada

How Legislative Process Varies from that in Nova Scotia House of Assembly

• Committee Stage

• Reporting Stage

• Senate Consideration

Anatomy of an Act

Anatomy of an Act

• Long Title

• Short Title

• Preamble

• Enacting Words

• Headings and Parts

• Marginal Notes and Headers

Anatomy of an Act

• Punctuation

Every lady in this land Hath twenty nails upon each hand Five and twenty upon hands and feet And this is true, without deceit James Burrow, Essay on Punctuation (1772), quoted by Megarry V.-C. in Marshall v. Cottingham, [1982] 1 Ch. 82 at 88

Anatomy of an Act

• Punctuation

Every lady in this land Hath twenty nails, upon each hand Five, and twenty upon hands and feet And this is true, without deceit James Burrow, Essay on Punctuation (1772), quoted by Megarry V.-C. in Marshall v. Cottingham, [1982] 1 Ch. 82 at 88

Anatomy of an Act

• Schedules – Materials in a schedule incorporated into the

enactment – Materials in a schedule not incorporated but

validated – Materials in a schedule included for convenience

only

How to Approach a Question of Statutory Interpretation

“Driedger’s Modern Approach” • Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27. • Elmer Driedger, The Construction of Statutes

(Toronto: Butterworths, 1974) at p. 67: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.

Key Texts • Ruth Sullivan, Sullivan on the Construction of

Statutes, 5th ed. (Markham: LexisNexis, 2008)

• Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Cowansville, PQ: Éditions Yvon Blais, 2011).

• Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007).

“Mowat”

• Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53.

• Judgment • Facta • Webcast • SCC Docket #33507

Canadian Human Rights Act, s. 53: (2) If, at the conclusion of its inquiry, a Tribunal finds that the

complaint to which the inquiry relates is substantiated, it may . . . make an order . . .

* * * (c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and

(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.

Polling Question

Does the phrase “any expenses incurred by the victim as a result of the discriminatory practice” include the victim’s legal costs?

Yes.

No.

Not fair, I already know the answer.

Some Preliminary Observations

i. Fact, Not Abstract

ii. Cases Afar, Not Just Cases at Bar

iii. “Tools”, Not “Rules”

iv. Show You’re Right, then Show the Light

7 Steps to Statutory Interpretation

Step 1:

Isolate and write out the issue, including the standard of review

if applicable.

Step 2:

Check to see if the provision in issue has already been interpreted

in a manner that answers the question in the case.

Resources • Annotated Acts • Canadian Statute Citations • The Canadian Abridgement: Words and

Phrases • Sanagan’s Encyclopaedia of Words and

Phrases, Legal Maxims • Canadian Legal Words & Phrases • Canadian Encyclopedic Digest • Westlaw, Quicklaw and CanLII

Step 3:

Articulate precisely and write down the meaning you propose

be given to the legislative provision issue.

In my view the interaction of GECA with provincial workers’ compensation legislation was concisely expressed by the Attorney General for Canada as follows …

The provincial workers’ compensation scheme governs claims submitted under GECA provided that: (a) the provision in issue is reasonably incidental to a

“rate” or “condition” governing compensation under the law of the province, and

(b) the provision is not otherwise in conflict with GECA. This approach appears to be consistent with the case law, and I adopt it. …

Cape Breton Development Corporation v. Morrison Estate, 2003 NSCA 103 at paras. 68-69.

Step 4:

Read the legislation.

• Read the entire statute where practical.

• Pay particular attention to the definitions section, if any.

• Note also Interpretation Act definitions.

• Read associated regulations.

Step 5:

Conduct a Formal Statutory Interpretation Analysis.

(i) Analyse the Text

Presumptions

• Ordinary Meaning • Technical Meaning • Legal Meanings and Meanings Fixed by Law • Plausible Meaning • Bilingual Statutes

Textual Tools

• No Tautology • Uniform Expression • Collocation • Associated Words • Limited Class • Implied Exclusion

Presumed Intentions

• Coherence

• Compliance

• Liberal Construction

• Strict Construction • But see: Canada 3000 Inc., Re; Inter-Canadian (1991) Inc.

(Trustee of), [2006] 1 S.C.R. 865, 2006 SCC 24 at para. 84.

(ii) Analyse the Purpose

This Court has stated on numerous occasions that the grammatical and ordinary sense of a section is not determinative and does not constitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon initial reading. ... I will therefore proceed to examine the purpose and scheme of the legislation, the legislative intent and the relevant legal norms. ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4 at ¶48 [emphasis added].

Sources • The legislation itself • Case law • Legislative history • Legislative debates • Law Amendments or other Standing Committee records • Regulatory Impact Statements • Law Reform Commission and other commission reports • Academic commentary • Departmental statements • Annual reports and other submissions

(iii) Analyse the Consequences

Step 6:

Read the Interpretation Act.

Step 7:

Frame Your Argument.

Mowat • CHRA ss. 53(2)(c) & (d) do not include legal

costs • Costs as a legal term of art • No tautology • Legislative history

– Proposed amendments – CHRC’s own understanding

• Parallel legislation

Extrinsic Aids to Statutory Interpretation

Extrinsic Aids to Statutory Interpretation

• Legislative History – All the documents pertaining to the preparation

and passage of a statute

– Until recently, legislative history was inadmissible to prove legislative intent

– Exclusionary rule against legislative history has eroded to the point that courts, including Supreme Court of Canada, recognize the admissibility of legislative history

Extrinsic Aids to Statutory Interpretation

• Legislative History – In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27,

Iacobucci J. relied on Minister’s statement in Legislative Assembly as direct evidence of the legislative behind the provision at question

– Must be relevant to interpretation issue before the court and not inherently unreliable

– See Parliament, House of Assembly websites for links to Hansard, other legislative history materials

Extrinsic Aids to Statutory Interpretation

Parliament of Canada (LEGISinfo) • http://www.parl.gc.ca/LegisInfo/

Extrinsic Aids to Statutory Interpretation

Nova Scotia House of Assembly (Status of Bills) • http://nslegislature.ca/index.php/proceedings

/status-of-bills/

Extrinsic Aids to Statutory Interpretation

• Administrative Interpretation – Directives issued by persons responsible for

administration of statutory scheme do not have force of law unless statute so provides

– Administrative policy and interpretation may nonetheless be evidence of the correct interpretation of the Act, although not determinative

– Must be relevant and not inherently unreliable

Extrinsic Aids to Statutory Interpretation

• Judicial Interpretation – Decisions that have previously interpreted the Act

or provision in question

– Decisions that have interpreted similar Acts or provisions

– Consider decisions interpreting statutes regarding the same subject matter in other jurisdictions; decisions interpreting identical or similarly-worded provisions in other statutes

Thanks for participating!