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The Miscellaneous Statutes Interpretation Paper 2008

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The Miscellaneous Statutes Interpretation Paper, 2008 December 11, 2008 Paul Dawson Dolden Wallace Folick LLP
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The Miscellaneous Statutes Interpretation Paper, 2008

December 11, 2008

Paul DawsonDolden Wallace Folick LLP

IntroductionWhere to find the basics, online:

• B.C. Courthouse Library’s video tutorials

• The Bora Laskin (University of Toronto) Law Library’s Guide to Canadian Legal Research, Ch. 4b

• Catherine Best’s Best Guide to Canadian Legal Research

Introduction

Where to find the basics, in print:

• Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed.

• Côté, Pierre-André. The Interpretation of Legislation in Canada, 3d ed.

• Craies on Legislation

• CLE, Legal Research, December, 2004

I. Currency

Fig. 2: With statutes, as with fish, fresh is best.

I. Currency

As of November 23, 2008, timeliness varies:

• CanLII - August 18, 2008

• Federal Statutes - October 31, 2008

• QPLegaleze - November 12, 2008

I. Currency

• Quicklaw - November 10, 2008

• Westlaw eCarswell - November 12, 2008

• Quickscribe – late November, 2008

III. Retroactivity/spectivity

Fig. 3: Back to the future.

III. Retroactivity/spectivity

Retroactivity, defined

• statute operates as of a time prior to its enactment

• operates backwards

• changes the law from what it was

III. Retroactivity/spectivity

Retrospectivity, defined

• operates for the future only

• operates forwards

• attaches new consequences for the future to past events

• changes the law from what it otherwise would be with respect to a prior event

III. Retroactivity/spectivity

General rules:

• Presumption against retroactivity, unless statute says otherwise, e.g. comes into force before statute passed

• Presumption against retrospectivity, if it would interfere with vested rights

IV. Statutory Interpretation

Fig. 4: …or statuary interpretation.

IV. Statutory Interpretation

The Grand Unified Theory of Statutory Interpretation:

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.

IV. Statutory Interpretation

• “Plain meaning” and other approaches remain valid

• Use only as many “successive circles of context” as required

V. Bilingualism

Proper interpretive method

• Look for discordance

• May be irreconcilable – use other tools

• Ambiguity in one version – use other

• One version broader – use narrower

R. v. S.A.C., 2008 SCC 47

VI. Committee Reports

Fig. 6: A horse, as designed by committee.

VI. Committee Reports

Analyses of proposed legislation by Parliamentary Committees

•Posted on Parliamentary website

•Accepted as evidence of legislative intent by Courts

•See also Committee materials on Provincial Legislative websites

VII. Regulatory Impact Statements

Background and explanation behind federal regulations

•Rarely used in Provincial legislatures

•Also used to illustrate statutory intent, but Courts vary on their weight

•Can state the obvious, and omit underlying intentions

VIII. Statute Revision Act

Fig. 8: A lot to be said for clarity.

VIII. Statute Revision Act

Tool for maintaining statutes:

• Periodic revisions conducted under this Act

• Housekeeping statute: updates to titles, wording, numbering, etc.

• Not intended to produce substantive change in the law

IX. Conjunctions

Fig. 9: Now arriving…two or more syntactic items of equal importance.

IX. Conjunctions

• The inclusive or – A or B or both

• “No food or drink” – also includes anyone with both

• Similar to “and”, but not same

IX. Conjunctions

• The “exclusive” or – A or B, but not both

• “Cake or death”

• Presumption – “or” is inclusive, unless context suggests otherwise

IX. Conjunctions• Noscituur a sociis principle – resolve ambiguity by association – e.g., “cars, trucks, or

vehicles”:

X. Annotated Statutes

Fig. 10: Researchers, take note.

X. Annotated Statutes

• Many published annotations of popular (and more obscure) statutes

• Motor Vehicle Act• Law and Equity Act• Legal Professions Act• Occupiers Liability Act• Society Act• Business Corporations Act• Local Government Act and Community Charter• Strata Property Act• Human Rights Code• Etc.

XI. Statutory Causes of Action

Fig. 11: The common law finds itself modified.

XI. Statutory Causes of Action

Determine whether statute is intended to affect common law by creating:

1. New remedy for an existing cause of action.

2. New cause of action, no specific remedy.

3. New cause of action and specific remedy.

XII. Conclusion

• Statutes are not as rigid as they might seem

• Use full set of analytical tools

• Fashion creative arguments

• Good luck!


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