LAW 104 | LAW, LEGISLATION & POLICY
FINAL OUTLINE – SHORT | 2013 | DECKHA
SANDRA TOWN
LLP | 104 | Town
STATUTORY INTERPRETATION
GRAMMAR & ORDINARY MEANING
Examining the contested provision in light of its grammatical & ordinary sense as a staring point
(from the point of view of an ordinary person)
Statutory definitions
Apply to the whole Act
s. 29 BCIA
Means – exhaustive
Includes – OM and what’s listed there
Riddell – smuggles or
clandestinely…
OM
What the reasonable person of average
intelligence/understanding would believe the word to mean
Consider well-understood technical/legal/scientific meanings
Good starting point, but not given too much weight
Shaklee
Best when dealing c/ same subject matter
Best when also from parallel jurisdiciton
Can be used to determine meaning - intentional
Can be disregarded when produces ridiculous result – drafting
error
Mowat
Dictionaries
Other acts – para
materia
Punctuation
Riddell
Jaagusta
Popoff
SCHEME ANALYSIS
Looking to other parts of the statute to help understand the intent
(from the point of view of a lawyer informed of the doctrine of SI)
Co-text/Scheme
Associated
Meaning
Limited Class
Rule
Implied
Exclusion
Uniformity of
Expression
Rule of Effectivity
or Presumption
against
Tautology
INTERNAL COHERENCE – WITHIN AN ACT
Use other words in the statute to help interpret
The word OR can be an indication that the two words are
different
Disputed words take their meaning from words around them
The closer the words, the stronger the presumption
Balance against effectivity/tautology
Basket clause takes its meaning from excluding words before
it
Must be coherent and have common denominator
Eg. lake, stream, pond, and all other bodies of water…
Silence is intentional – if legislation doesn’t mention sm/t it’s
excluded for a reason
Easy to argue the other side – can’t list everything, doesn’t
waste its breath
Words have the same meaning throughout a statute
Words are there for a reason - legislature doesn’t waste its
breath
Rizzo, Mowat
Riddell
McDiarmid – treaty or
agreement
Nanaimo – pile of dirt
Children’s Aid
s.12 BCIA
Schwartz
Merk, Riddell
Two words joined by or are different
Riddell
Each word used has a specific meaning
McDiarmid – explicit sexual
conduct
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HORIZONTAL COHERENCE – SPEAKS C/ ONE VOICE ACROSS ACTS
Similar subject matter
Para Materia
Conflict
Referential
Incorporation
Paramountcy
Presumption RE:
Crown Immunity
Presumption RE:
Extra-territorality
Subordinate
Legislation
Ratified Treaties
Governance
Bell ExpressVu,
Best when it comes from the same jurisdiction
Mowat
When there’s conflict you resolve it in favour of
More recent
More specific
BUT
Earlier specific trumps later general
If B amended, A amended
If B R&R, A amended
If B repealed, A keeps old def’n
VERTICAL COHERENCE – CONFORMITY UP THE LADDER
Constitution > everything else
Human Rights > everything else (quasi-constitutional)
Federal > Provincial
Statues > Regulations
Regulations > Schedules
Gov’t immune unless otherwise stated
Vice Versa in BC – binding unless otherwise stated
Legislation not meant to cross its borders of jurisdiction
Levis
Must conform to meaning of expressions in parent Act
s.13 BCIA
INTERNATIONAL COHERENCE
Crts will take a limited look to treaties that have not yet been incorporated
into domestic law
Interpretation guided by convection
s.32 BCIA
s.36(1)(f) BCIA
s.36(1)(f) BCIA
Charter
Mowat
Sharpe
s.14 BCIA
Libman
Baker
Vienna
Convention
OBJECT/PURPOSE ANALYSIS
Purposeful analysis to determine what the legislature was aimed at when creating the statute
(different than looking just at the purpose – that goes to components of a statute)
Legislative
History
Legislative
Evolution
GENERALLY
Planning, prep, conception & passing of specific enactment
Changes that occur before/after the contested Act
Eg. Previous versions, amendments, marginal notes
BUT amendment does not necessarily mean substantive change
C3000, Rizzo
Mowat
Re SFU
s.37(2) BCIA
Note: you can’t use legislation as it currently stands to inform your decision of legislative intent
back then. But you can infer about original intent (why else would you need a change?)
General
History
Crt can look at what’s going on in society at the time of the case
Eg. Law reform reports, House committees
C3000
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Special
Knowledge
Absurdity
Principle
Hansard
Policy
Considerations
Weight given to the understanding of a person/board with
expertise
Eg. CHRC
Avoid interpretations that lead to absurd/anomalous/illogical
results
Title
Indication of legislative intent – frail, possible political motivation
What are the ramifications of a decision?
Floodgate concerns
COMPONENTS OF A STATUTE
SPECIAL PARTS TO SHOW PURPOSE
Binding
Preamble
Not binding – can give reasons (but can be politically motivated)
Purpose
Mowat
Rizzo – lay off most sr.
employee
Merk – internal
whistleblowers
Rizzo, Mowat
McIntosh
Lane – no criminal words =
prov leg.
s.9 BCIA
Re Anti-Inflation Act
s.9 BCIA
Sullivan
Binding – shows what the Act is aimed at correcting/regulating
 Be aware of conflicting purposes – RTV
Will a broad/narrow understanding help achieve this purpose?
Headings
Binding, but limited use  they’re mini-titles
Lohnes
CL says ok to use (stat. silence)
Marginal Notes Not binding – only contain 1 section
Wigglesworth
(Head notes)
CL says ok to use (stat. says no) - weak
s.11 BCIA
Schedule
Binding - less weight than main text
Houde
Bilingual
Equally authoritative
Medovarski
Bijural
Must fit both common and civil law
s.8(1,2) CIA
TYPES OF STATUTES
SUBJECT MATTER ALSO IMPORTANT TOO LOOK AT – FOR PURPOSE (BENEFITS-CONFERRING)
Individual
Strict construction RE: access to crts and rights of natural justice
Baker
Rights
Property
Strict construction in favour of property owner - gov’t can’t just take away your land c/out
Rights
compensation
Criminal Law
No longer automatice strict construction – CCC gives out
Hasselwander
proportionate punishment
Human Rights
Large, liberal, remedial understanding
Jubran
Taxation
Weight is placed on text given complex nature
Place Dom
Municipal Law Remedial approach
Municipal Trucking
A NOTE ON TIMING
General Rule: exclude the first day, include the last
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

Exception: include the first and last days when you see
o “at least”
o “not less than”
o “clear…”
Holiday/office closed – move to the next day
s.25 BCIA
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SUBORDINATE LEGISLATION
Dealing with vertical coherence – SL must conform to its parent act (PA) – STILL LAW
Questions of dialogic balance – legislation from democratically elected through democratic process (Leg.) vs.
expediency and monetary savings (Exec.)
SUBORDINATE LEGISLATION FRAMEWORK ANALYSIS
For the person wanting to attack the SL
Identify
Is it legislative
(vs. administrative)
Validity
Has it been validly
enacted?
Does SL trigger BCRA?
Authorization
Henry
VIII
Does the PA actually
authorize this SL or is it
u.v.?
L: Regulation, order, decree, rule, tariff, by-law, latters patent
 Has force of law – s.41(2) BCIA
A: Directive, circular, guide, guideline, manual, instruction, rule, policy
 Direction to civil servants as to how to interpret/apply law
Sm/t can include words from either list – needs
Oldman River
contextual analysis
Identify source
 Determine specific provision (enabling clause) that explicitly
designates authority to make regulation
 s.41(1) BCIA can supplement scope
Identify any express limitations/requirements as to how/by whom
the regulation can be made
 Must SL according to intent of PA
 Includes power to repeal/amend
 Can make SL that is advisable/necessary
 Can’t sub-delegate unless stipulated in PA
Magic words: Regulation(s) or Prescribe(d)  in the enabling clause
 If yes, SL must comply c/ procedural elements
o Examined by person designated by Minister – s.2
o Deposited c/ registrar – s.3(1)
o Comes into Force on (CIF) day of deposit unless
otherwise specified – s.4(1)
o Published in Gazette – s.5(1)
o Can’t be charged if wasn’t in Gazette, UNLESS prove
reasonable steps taken to inform public – s.7(1)
Can’t go beyond scope of powers given by PA
Can’t conflict c/ scheme of PA, or be contrary to
purpose of PA
Expressions must have same meaning as PA
Express clause in the PA that allows the SL to be inconsistent c/ provisions set out in
the PA
 Huge amount of power for the executive
DeGuzman
s.13 BCIA
Gray – war
Widdell peace
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TEMPORAL APPLICATION
RETRO AND IMMEDIATE APPLICATION

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Temporal operation: when the provision(s) have legal effect (from commencement date)
Temporal application: the facts the provision can be applied to
Enactment – completion of formal legal process (Royal Assent)
Commencement – date statute has force of law (usually by proclamation)
o Timing – s.3(2) BCIA
o For regulation – BCRA says day it’s deposited to Registrar
Retroactive
application
Retrospective
application
Immediate
application
Changes past
consequences of past
actions
 All the facts
were in the
past when
law CIF
Gives new
consequences to past
actions
Violates RoL – impossible for
anyone to prepare for
Strong presumption against
 Policy – violates RoL, unfair,
makes law appear to be
unstable, arbitrary
Violates RoL – too late to
modify your actions
accordingly
Gives new
consequences to new
actions
No violation – applies to
ongoing/new events, still
possibly to modify your
behaviour to avoid new effects
of law
Weak presumption against
 Usually applied to things you
don’t want/need to complain
about
 Beneficial legislation,
legislation designed to protect
the public, procedural
legislation
No presumption against
 Understanding that the law can
(and must) change
VESTED/ACQUIRED/ACCRUED AND ACCRUING RIGHTS
Vested/Accrued Rights
New legislation
diminishes/destroys a
right previously held by
sm/o
Accruing Right
New legislation
diminishes/destroys a
right previously held by
sm/o
Right must have
sufficiently crystalized –
Drikanian
Or sufficiently constituted Scott
Things haven’t totally
crystalized but took every
reasonable step to make
things happen
 Entitlement,
intention, took
steps
Weak presumption against
 Understanding
that law can (and
must) change
Standing on a slightly
stronger ground if you
have a vested right (than
accruing)
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METHODOLOGY
1.
2.
3.
4.
5.
6.
Identify the commencement date of the provision
Identify the salient facts/triggers of the situation
Situate those facts in time – make a timeline
Determined if the facts were … as of the commencement date
a. Complete
i. Could have retro application if applied – need to do retro analysis (determine if retroACTIVE
or retroSPECTIVE)
1. If retrospective, you have to determine if the presumption would even apply (3
exceptions)
b. Ongoing
i. Could have immediate application if applied
c. Not yet started
i. No retro/immediate application
Determine if application will result in interference c/ vested rights
Consider any rebuttals against the presumptions
a. Retro applications
b. Interference c/ vested rights
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LLP | 104 | Town
IRAC PREPARATION
Pay attention to the questions – there isn’t time to do everything, so they may direct your attention to specific things

Eg. if they tell you the SL is valid, go right to the contextual analysis
ISSUE




Identify the issue – which statute, which provision, which words?
o Eg. Does “lawful authority” under s.74 of the Labour Standards Act (LSA) include private officials or
only public officials? (Merk)
Explain why the legal focus should lie on these words
o Explain where there is no contention
 Eg. Gil fits s.8(2)(a, b, d) of the LSA
o Explain why the dispute is important
 Eg. if Gil does have a “dispute” with his wife, he disqualifies to give consent
Explain who wants which understanding of the word (broad/narrow)
Refer to the contested word in “…”
RULE
Leading law today directs us to Driedger’s explanation of a contextual approach to statutory interpretation as
mentioned in Rizzo at para. 21,
“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.”
In addition, s.2 of the BCIA allows us to apply every provision located within the BCIA to the legislation
under consideration, absent any contrary intention. This also means that the remedial provision of s.8 of
the BCIA will apply, allowing us to adopt a large, liberal understanding of the legislation in order to best
achieve its purpose. At the end of the day, the goal of statutory interpretation is to determine legislative
intent, what is mentioned above guide the courts to ensure this occurs
APPLICATION
Balance the arguments to determine which meaning should be adopted – give mini-rules & authority for each new
tool used
Note which understanding it lends itself to at the end of each section
CONCLUSION
Mention which interpretation the scheme favours (broad/narrow) but don’t be too decisive – this is not a judgement
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Would likely/unlikely
Very likely/unlikely
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