BELIEVE IN YOURSELF!
** REMEMBER: focus analysis on strongest arguments rather than all factors
FIRST TIME USING A TOOL: describe it, give limitation, give authority
STATE THE AUTHORITY
- how would Party A use the authority to propel a certain line of argument
o state the general principle and the look to the specific facts to illustrate the point
drawing primarily on the legislation
- how would Party B use the authority to propel a different line of argument OR how would
Party B refute Party A’s line of argument
o state the general principle and the look to the specific facts to illustrate the point
drawing primarily on the legislation
Keep your mind on what you are doing! YOU ARE ENGAGING IN SI in order to determine which meaning
of the term makes the most sense to adopt!
THINK LIKE A REASONABLE PERSON – USE YOUR JUDGMENT!
EMPHASIS SHOULD BE ON RATIONALITY AND AVOIDANCE OF ABSURDITY
PHRASING
If more than one term, deal with each separately but don’t need to re-cite authority
-
“By reference above Hansard is applicable in this case, through an analysis of Hansard it
is revealed….”
The Driedger approach is relevant as discussed about in part A
Example of phrasing:
- X argues Y is applicable as discussed in Rizzo. This is also supported by the British
Columbia Interpretation Act.
Line of argument MUST remain tied to the question of how to define ____
X would argue that we should interpret ____ broadly because doing so will best ensure that the ABC
purpose of the legislation will be fulfilled. Write a sentence of what the purpose of the precise provision is. If
we interpret ____ broadly we will best ensure the purpose is met because we will prevent (list what will be
avoided that purpose seeks to avoid).
STATUTORY INTERPRETATION
Layout and Structure of Essay
1. Introduction - includes Preliminary Issues  these would be issues identified in the BCIA, be specific
about what parts of the statute you are focusing on (cite specific sections)

Preliminary Issues
o
Identify what is at stake
o
How does legislative intent lead to certain outcome

What factors have already been met (i.e. person? Prerequisites?)

What is left to be interpreted

If there is more than one term that needs SI indicate this here and say will deal with X first then Y

highlight who are the two main parties and what they disagree upon [root of issue] – one will
likely argue for narrow and the other for broad.
2. General Approach

In order to better understand the meaning of ____, I will apply a contextual analysis that relies on
Elmer Driedger’s modern approach to SI. Through combining literal, purposive and intentionalist
methods, Driedger’s approach addresses the complexity associated with SI through a
contextually-based analysis.
3. Grammatical and Ordinary Sense of the Word
Given that there is no defn of the term _____ in the Act, or in s1 of the BCIA or s29 of the BCIA, the
meaning of ______ is unclear and it is necessary to explore the ordinary meaning of this word.
-
What would an ordinary person think that the word means?(Shaklee)
o Discuss Party 1 position
o Discuss Party 2 position
Another factor that should be considered are any dictionary definitions. While dictionaries are acontextual,
the court in Committee for the Commonwealth of Canada (hereafter CCCanada) has indicated that
dictionaries provide a useful starting point for analysis though they should not be given too much weight.
when examining dictionary definitions remember to:
 look at scope of what it implies (what are the different uses/purposes of definitions)
 if different definitions in different dictionaries, see what is the common thread
o Discuss Party 1 position
o Discuss Party 2 position
Factor to
Consider
Defn in BCIA?
Ordinary Meaning
Details
Key Cases
S1
S29
Or is there a contrary intention (BCIA s2)?
“to arrive at a common understanding of what a word means,
Shaklee
(reasonable
person)
one must sometimes resort to the simple gesturing of imagining
the subject matter in a very ordinary situation” (Shaklee 4-49)
If bilingual text, look up dictionary definitions of both terms as a
starting point for analysis (CCCanada 4-19)
Dictionary
definition
RISK – limited usefulness b/c can be too technical, abstract or
scientific in nature (Shaklee)
Shaklee
RISK – legal dictionaries don’t always match up to most
commonly used dictionaries (Riddell 4-51)
Riddell
If bilingual take both language versions into account b/c shared
meaning is the intent (Ruth Sullivan Statutory Interpretation 4-3)
Shared Meaning
(if bilingual text)
Committee for the
Commonwealth of
Canada – use them!
Ruth Sullivan
Statutory
Interpretation (2007)
If bilingual statute – if there is a conflict “the common meaning is
the version that is plain and not ambiguous” – this means
Medovarski
usually choose the narrower version
4. Scheme of the Act
GIVE AUTHORITY FOR FACTOR AND THEN:
- Discuss Party 1 position
- Discuss Party 2 position
THEMES to argue for particular SI under scheme:
- internal coherence
o Consider the effect of: Co-text, Each word in a phrase, other sections of Act
o what do words suggest and how do they effect defn?
o most persuasive arguments may be specifically drawn from wording in statute
- presumption against tautology aka “rule of effectivity” – described by McLachlin CJ
in McDiarmid quoting Sullivan (4-53) “every word in a statute is presumed to make sense
and have a specific role to play”, legislature doesn’t pointlessly repeat itself and avoids
meaningless words
o RISK: sometimes legislature can be superfluous, extra words for certainty
or no reason
- Presumption of ordinary meaning: strong  need to be accessible to public
- Presumption of rationality: strong  not absurd, seeks to make sense (Rizzo)
Factor
Details
Key Cases
INTERNAL COHERENCE
Co-Text
And
Look at words nearby to suggest meaning (in Merk term “lawful
authority” coloured by term “offence”)
Cotext in the BCIA s29? – how do these words inform SI?
- may: permissive and empowering
- must: imperative
- obligation: includes duty and liability
- right: includes a power, authority, privilege
and license
- shall: imperative
Principle of Associated Meaning (Noscitur a Sociis): interpret wrt
McDiarmid Lumber,
common meaning (broad limited by narrow word)
- helps pick meaning most congruent “birds of a feather flock
together” ; should have an independent meaning but narrower
than literal ordinary meaning of term
*this is a maxim but courts suggest should be cautious!!
Definitions:
includes v.
means
“or”
List and Basket
Clause (“or
other”)
R. Goulis
Means: the definition is exhaustive (excludes any meanings not
listed)
Includes: the definition also includes the ordinary meaning,
possibly others
When two expressions are separated by “or” court assumes
legislature intended to cover two situations
Riddell
Drafters use this structure often for greater certainty, abundance
of caution – BUT do not intend too broad a meaning b/c that
would rob specific terms of their meaning
Ejusdem Generis (Limited Class Rule): use principle of a
common class to limit otherwise too expansive basket clause
- can only use if a class can be identified
Nanaimo v. Rascal
Trucking
Can be used an intrinsic aid in interpreting ambiguous statutes
*weak* (Lohnes 4-38)
Lohnes – McLachlin
J
May sometimes be useful to determine sense of any doubtful
expression in a particular section (Basaraba 4-38)
Basaraba – Hunt J
Headings deliberately included for a reason so court must take
into consideration - weight may very for various reasons,
including but not limited to:
 “degree of difficulty by reason of ambiguity or obscurity in
construing section;
 length and complexity of provision;
 apparent homogeneity of provision appearing under
heading;
 use of generic terminology in heading;
 presence or absence of a system of headings which
appear to segregate the elements;
 relationship of terminology in heading to substance of the
provision” (Wigglesworth quoting Estey J 4-41)
Wigglesworth –
Wilson J
QUOTES
Law Society of
Upper Canada v.
Skapinker 1984 SCC
(unanimous)–Estey J
Marginal Notes
(Federal) aka
Head Notes (BC)
Can have a limited use in determining intention of parliament
(McLachlin, J (dissent) in McIntosh agrees with Wigglesworth [320])
McIntosh- McLachlin
(Usually very
close to text
above sections)
Can look at marginal notes but have to assess value, generally
“weak” support because not integral (Wigglesworth 4-41)
Wigglesworth –
Wilson J
Should not use (Basaraba 4-39)
Basaraba – Hunt J
Headings
(usually centered
in the middle of
the page,
sometimes split
up into parts)
cite BCIA s11!
Not allowed!
Aside: BC legislature tends not to use but Parliament does;
cite BCIA s11!
Not allowed!
Aside: BCIA has provisions against use of headnotes but they
have been considered by courts as a source of statutory intent –
see BCIA s11 “11 head note (a) is not part of the enactment,
and (b) must be considered to have been added editorially for
convenience of reference only.
Repetition of
Words
uniformity of expression – presumes that words used by
Parliament have the same meaning throughout the same statute
Schwartz v Canada
Same meaning
throughout act,
regulation
Word has same meaning throughout act (s12), within act and
regulation (s13)
BCIA s12, BCIA s13
RISK: sometimes even within a statute there is the possibility
that a word may carry differing meanings since this is why SI
issues might arise
LeBel and Cromwell
twice in two subsequent paragraphs implies different meaning
JJ in Canada
intended in each paragraph therefore need to examine
Canada Human
surrounding words carefully (LeBel and Cromwell in CHRC 3-43) Rights Commission
Paragraphs
If wanted costs would have freestanding paragraph (CHRC 343) so negative inference drawn b/c of way wording appears
LeBel and Cromwell
JJ in CHRC
Disregarded punctuation – consider it in the context of absurdity
(reading text with or without comma what is the impact)
Jaagusta
Punctuation
Affirms court’s general rule “to pay little, if any, attention to
punctuation” (Medicine Hat v Hawson in Popoff)
Popoff
What matters most is legislative intent, if that is clear
punctuation is weak and cannot rebut
How to read:
Schedules
Maxims
-
knowingly injure, or destroy
knowingly only modifies injure – this might not
have a realistic impact
If there is a conflict btwn schedule and body of the statute –
what is in the body of the statute has more weight
Noscitur a Sociis – Principle of Associated Meaning
 most effective when look at immediate cotext “and” “or”
 “birds of a feather flock together”
 it is used to help narrow meaning of term so that it aligns with
implied term
 rebuttable: presumption against tautology
Ejusdem Generis – ‘Limited Class’ Rule
 common class to limit a basket clause
 drafters use this structure often – don’t intend broad meaning
otherwise why would they have specific terms?
 rebuttable
- distinct meaning, rule of effectivity
Expressio Unius Est Exclusio Alterius – Implied Exclusion Rule
 MOST DANGEROUS!
 presumption that legislative silence is intentional – failure to
McDiarmid (narrows
broad term)
Goulis (narrows
broad term)
Nanaimo v Rascal
Trucking
Children’s Aid
(exclusio argued but
not successful)
expressly mention something means it was impliedly excluded
- courts have limited power
- reluctant to read-in
 rebuttable!
- absurdity
- cannot apply if it displaces context analysis
- sometime mentions one out of excessive
caution; other not mentioned b/c implicit
- if wanted to exclude would do so explicitly
Children’s Aid
Children’s Aid
Beyond internal coherence in the scheme of the act, there should be vertical and horizontal coherence.
HORIZONTAL COHERENCE – refers to other statutes
referential
incorporation
If any other statutes are referentially incorporated (through
defns etc) – should look to these statutes in particular to
ensure coherence b/c legislature by RI implies commonality
Other relevant
statutes (similar
subject matter aka
pari materia)
assumes legislature is unified entity that is consistent “one
voice”
Driedger suggests that any differences in wording in statutes
pari material might suggest differences in intended meaning,
scope or effect. (b/c diff statutes have diff intentions thus diff
meanings for words)
Columbia River
Parallel Legislation
Might apply if areas of concurrent jurisdiction btwn feds/prov
RISK: rationale of a unified entity with one voice does not apply
Bell ExpressVu
Look at other jurisdictions legislation in Merk (3-35)
Merk – Binne (maj)
Useful to look at parallel provisions and territorial legislation,
identifies and supports Sullivan’s interpretation that crossjurisdictional comparison of statutes with same subject matter
is instructive (CHRC 3-48)
CHRC – LeBel and
Cromwell JJ
IF CONFLICT
BTWN
ENACTMENTS
Authority to RI is
BCIA s44
There is a true conflict with statutes require to do conflicting
things
court emphasizes that if you can comply with both there is no
conflict
Presumptions to apply to deal with conflict:
1. newer is better (later enactment prevails over previous)
2. specific statute (more detailed) will prevail over general
statute (too broad)
3. specificity> time enacted (earlier, specific act prevails over
later general act)
Levis v Fraternite de
Policiers
VERTICAL COHERENCE - enforcing legal hierarchy
Paramountcy
Constitution> Human Rights Statutes > Statutes > Sub Leg>
If conflict – higher
Admin tribunals (not binding)
Intl Conventions
Charter values
Not binding
Only where there is general ambiguity and provision could be
read either way after contextual approach – should “Charter
values” interpretive principle apply (read in line with charter)
Analyze in relation to statutes in the course of SI
level prevails, lower
level non-operative
Baker
Bell Express Vu,
Sharpe, Gomboc
CCCanada
5. Object of the Act
The object of the Act aims to understand the purpose of the act in order to ensure that SI promotes this
purpose. In exploring the object of the act several factors should be considered
GIVE AUTHORITY FOR FACTOR THEN:
- Discuss Party 1 position
- Discuss Party 2 position
Factor to
Consider
BCIA Provisions
Details
Key Cases
* important to be mindful of Interpretation Act (Iacobucci in
Rizzo, speaking about federal act s10)
applies unless contrary intention BCIA s2
s8 “Every enactment must be construed as being remedial,
and must be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its
objects”
Legislative
Evolution
Changes overtime from common law to present, examination
of changes key b/c indicates if actually a major change or if
just drafting error (McLachlin, J (dissent) in McIntosh 3-18)
McIntosh - McLachlin
Previous Versions of the Enactment: Look at historic pattern,
if a significant and sudden change was that actually the
intention or was it in error - change in ordinary meaning =
substantive change (but s37 BCIA amendments not
determinative)
Re Simon Fraser
University
If Act has been repealed or amended: this cannot imply what
the Act means (Binnie (majority) in Merk 3-39) – referring to
Canada Interpretation Act but in BC see BCIA s37 “(2) The
amendment of an enactment must not be construed to be or
to involve a declaration that the law under the enactment prior
to the amendment was or was considered by the Legislature
or other body or person who enacted it to have been different
from the law under the enactment as amended.”
Different kinds of Amendments (substantive v. declaratory)
May be implicitly declaratory if:
a. ambiguity in the meaning of the initial act
b. no substantive change – court could have arrived at
the changed meaning on their own
Merk – Binnie
As discussed in Merk
amendments can’t be
used to infer intent
BCIA s37
Legislative History
(also incl. house
committee reports,
press releases,
briefing notes)
Use of legislative history appropriate
Should be considered if relevant, reliable and not given undue Reference re:
weight
Firearms Act
Proposed but
unenacted
Look at proposed but unenacted provisions to shed light on
purpose of legislation (CHRC 3-45)
Hansard
Hansard refers to transcripts of legislative debates and
speeches and can be used to help provide background
information wrt purpose of legislation; however, it should be
treated as “frail” evidence and given limited weight since it
only reflects the voices of those speaking at particular
politicized moments in time and might not reflect the intent of
Parliament in its entirety.
Purpose Section
Multi-purpose
purpose clause
if conflict – clear substantive provisions > purpose clauses
(National Farmers Union v. Potato Marketing Council –
referred to by Sullivan 4-32)
if multi-purpose purpose clause have to figure out which to
apply – multiple competing purposes reduces persuasiveness
of purpose section (R. v. T(v))
prepared to take purpose statements seriously, more weight
than preamble (R. v. T(v) SCC case that analyzed Young
Offenders Act, reviewed by Ruth Sullivan 4-31)
Title
Cite BCIA s9!
Preamble
Rizzo – Iacobucci
CHRC v. Canada –
LeBel and Cromwell
Rizzo – Iacobucci
National Farmers
Union reviewed by
Sullivan in Driedger on
Construction of
Statutes
R. v. T(v)
(analyzed Young
Offenders Act)
reviewed by Sullivan
in Driedger on
Construction of
Statutes
BCIA s9 “The title and preamble of an enactment are part of it
and are intended to assist in explaining its meaning and
object.”
Title may be used to clarify meaning but if different than
substantive provisions, substantive provisions have more
weight (Lane 4-17)
Lane (less weight)
Can use both short and long title to clarify meaning (Lamer
CJ in Committee for Commonwealth of Canada 4-20)
CCCanada (more
weight)
BCIA s9 “The title and preamble of an enactment are part of it
and are intended to assist in explaining its meaning and
object.”
Cite BCIA s9!
Aids in understanding context but it is not determinative (AntiInflation Act 4-22)
Re Anti Inflation Act –
Laskin CJ
Preamble often aspirational, vague, general (Kent Roach in
“Uses and Abuses of Preambles”)
Ken Roach Uses and
Abuses of Preambles
(2001)
La Foret J “ odd to give general words in preamble more
weight than specific provisions” 4-27 (quoted by Kent Roach
in “Uses and Abuses of Preambles”)
Can be used an intrinsic aid in interpreting ambiguous
statutes (Lohnes CP 4-38)
Lohnes – McLachlin J
6. Presumed Intention of Legislature
Aside: Sullivan (3-68) Driedger’s notion of presumed intent has no real limit, can intend what judges want
GIVE AUTHORITY FOR FACTOR THEN:
- Discuss Party 1 position
- Discuss Party 2 position
Factor to
Consider
Details
Key Cases
“Knows the law”
Presumption parliament knows the law and if it is reasonable
that failure to use familiar terms of art (i.e. costs) show other
meaning intended (CHRC 3-35)
CHRC – LeBel and
Cromwell JJ
Intentional
Ambiguity
New activity being regulated, sometimes legislature unable or
unwilling to offer precise defns 4-34
Ex. Broad Definition
of pollution in BC
Environmental
Management Act
COMMON LAW PRESUMPTIONS
Benefits-conferring
legislation
“broad and generous interpretation” – if doubt read to protect
claimant – Rizzo 3-29
Re Rizzo & Rizzo
Shoes – Iacobucci
Quasiconstitutional
Broad, liberal, purposive interpretation but shouldn’t give effect
to policy decision different than parliament (CHRC 3-48)
CHRC – LeBel and
Cromwell JJ
(Human Rights)
Human Rights: Presumption in favour of individual rights,
large, liberal, purposive b/c quasi constitutional
Strict Construction: narrow reading, in favour of the accused
b/c liberty is at stake (Lamer, CJ (majority) in McIntosh 3-14)
Jubran
RISK: Limited value to interpret narrowly if it is a regulatory
statute b/c if regulatory broad is better (other factors can
outweigh strict construction) Merk 3-37
Merk – Binnie
(majority) citing
Hasselwander
RISK: do not apply strict construction until end of Driedger
analysis
R v Hasselwander
Presumes leg doesn’t intend to adversely affect ind. rights
Bell Express Vu
(after Driedger,
apply this approach
“Charter values”)
Penal Statutes
Individual Rights
Presumes court should select the meaning that does the least
harm to ind. rights
McIntosh – Lamer
CJ
Presumes that leg which affect ind. rights should be given
strict construction
Property Rights
Historically strict construction to benefit individual owner but
courts also willing to recognize rights of all property owners
and the public generally (i.e. noise restrictions)
should not expropriate without fair compensation (govt can
expropropriate without compensation BUT assumes that if leg
silent then provide compensation)
Taxation Statutes
Historically strict construction but now more contextual
analysis ALTHOUGH b/c technical language and public
reliance need to be cautious and not interpret too broadly
Imperial Oil
Municipal Law
Broad grants of power from provinces to municipalities, liberal
construction of these grants
United Taxi Drivers
Presumption of
‘Crown Immunity’
This is reversed in BC and PEI!
BCIA s14, unless specifically provides otherwise and
enactment is binding on the Crown/govt
Presumption
against ‘extraterritoriality’
It is presumed that enactments apply to the entire territorial
jurisdiction, not just specific regions
“Up the ladder
approach”
in employment cases courts favour “up the ladder approach”
where public criticism is justified where reasonable attempts to
resolve matter internally are unsuccessful (Binnie, J in Merk v.
International Association refers to Hayden v. Canada – 2001
Tremblay-Lamer, J 3-35)
Employment Law
Binnie, J in Merk v.
refers to Hayden v.
Canada – 2001
Tremblay-Lamer, J
7. Broad Implications
To ensure an effective contextual analysis, public policy ramifications as well as the implications of specific
interpretations of a word should be considered in order to best reflect the intention of Parliament.
*legislature intends rationality unless indicated otherwise (Rizzo, McLachlin in McIntosh)
*legislature does not intend absurdity (reasoning of Pierre-Andre Cote affirmed in Rizzo)
- absurdity exists when: consequences of legislation are ridiculous, frivolous, unreasonable,
inequitable, illogical, incoherent or incompatible with other provisions or the purpose of the act.
*avoid anomalous results (Merk) - results should be avoided if persons “deserving of better treatment
receive worse treatment or vice versa”.
-
Discuss Party 1 position
Discuss Party 2 position
Factor to
Consider
Details
Absurdity Principle
Parliament has right to be illogical (if not against constitution) &
can amend as needed (Lamer, CJ (majority) in McIntosh 3-15)
Should assume rational intent to Parliament unless clear
indication otherwise (McLachlin, J (dissent) in McIntosh 3-21)
Key Cases
Mcintosh - Lamer
Mcintosh - McLachlin
* legislature does not intend absurdity (Iacobucci J in Rizzo)
Avoidance of
Anomalous results
In Rizzo, Iacobucci accepts absurdity as discussed by:
A. Scholar Pierre-Andre Cote [3-26], absurdity exists if:
- ridiculous or frivolous consequences
- extremely unreasonable or inequitable
- Illogical or incoherent
- Incompatible with other provisions or with the object of the
enactment
B. Scholar Ruth Sullivan [3-26], states absurdity also exists if:
“a label of absurdity can be attached to interpretation which
defeat the purpose of a statute or render some aspect of it
pointless or futile.” (Rizzo)
Interpretations with irrational results should be rejected. (Binnie
J (majority) in Merk)
Rizzo – Iacobucci J
QUOTES
Pierre-Andre Cote
The Interpretation of
Legislation in
Canada (1991)
& QUOTES
Ruth Sullivan
Construction of
Statutes (1994)
Merk – Binnie J
(majority)
Applies especially when persons “deserving of better treatment
receive worse treatment or vice versa” (Binnie J in Merk quotes
Ruth Sullivan [3-36])
** presumption of rationality
Public Policy
THINK ABOUT
THE BIG
PICTURE
If SI supports public policy considerations that should help
support one interpretation over another b/c aim to be rational if
possible (McLachlin, J (dissent) in McIntosh 3-21)
McIntosh –
McLachlin (dissent)
Shouldn’t advance policy considerations b/c not role – do not
read in to policy, this is for govt (Deschamps, J (dissent) Merk
3-39)
Merk – Deschamps
(dissent)
Emphasis on beneficial policy outcome at cost of interpretive
process undermines the process, should not overvalue policy
(CHRC 3-49)
CHRC – LeBel and
Cromwell JJ
What is the legislation really about – be rational in assessing
which line of argument for interpreting the contested term best
ensures a logical result
PRESUMPTION OF RATIONALITY!
- thinking about consequential arguments,
what is the ultimate purpose and what are
the repercussions of particular actions
- be logical and remember parliament intends
to be rational so what are the implication of
a particular interpretation more broadly –
reinforce or fail to acknowledge key points
BCIA s7 : “enactment always speaking”, read in the present
tense implies parliament intends enactments to evolve with the
times – SI should not be static
SUBORDINATE LEGISLATION
Regulations are a form of subordinate legislation made under the authority of a statute through an enabling
clause, where the legislature may delegate the power to made subordinate legislation to a delegatee.
Regulations, like statutes made by the legislature, are binding and enforceable in a court of law. Section 1 of
the BCIA defines enactment to include regulations, in this way all reference to enactments within the BCIA
are also applicable to regulations. Moreover, statutory interpretation techniques used to analyze statutes are
also applicable to the analysis of regulations.
When engaging in the analysis of regulations it is essential to ensure that the material being analyzed is in
fact a regulation as opposed to an administrative policy directive, since directives, though created for
uniformity and consistency, are not binding and cannot be enforced by the courts.
In order to determine whether provision X of [name of regulation] is binding, first it must be determined
whether this [name of regulation] is subordinate legislation. Next, the validity of the regulation must be
assessed through analyzing the scope of power within the enabling provision and whether there is a conflict
between the purpose of the enabling Act and the provisions within the regulation. If the regulation is
considered not valid during this process it will be of no force and effect.
1. Law or Policy?
a. regulation per BCIA s.1 (thereby binding and enforceable)
a. “means a regulation, order, rule, form, tariff of costs or fees, proclamation, letters patent,
commission, warrant, by law or other instrument enacted
i. (a) in execution of a power conferred under an Act
ii. (b) by or under the authority of the LG in Council
1. DOES NOT include an order of a court made in the course of an action or an
order made by a public officer or admin tribunal in a dispute btwen 2+ ppl”
b. administrative directive (policy) (not binding and not enforceable – as discussed by David Mullan)
a. Oldman River
i. Guidelines imply policy but the court held that guidelines is a neutral word and need to
go through the process of determining whether it is SL or directive to ensure meaning
of the word guidelines in this context.
ii. If process is FORMAL “by order, with the approval of G in Council”  likely law!
iii. If language used in the guidelines is FORMAL (lots of SHALLS!)  likely law!
2. Source of Authority to Make Subordinate Legislation
a. What is the Enabling Clause in Parent Statute
a. * Express power required
i. _______________________________________________________
b. how was it followed (or not)?!
i. how or by whom can the regulation be made
1. _______________________________________________________
2. _______________________________________________________
3. _______________________________________________________
ii. are there any express limitation or requirements
1. _______________________________________________________
2. _______________________________________________________
3. _______________________________________________________
b. Does BCIA apply?
a. BCIA s.41(1) will apply to supplement scope of regulation-making power granted in the enabling
clause unless there is a contrary intention in the enabling act, as per BCIA s2.
b. BCIA s.41(1)
i. (1) If refers to Lt Govt in Council or any other person to may reg, that person (in carrying
out intent of enactment) can:
1. (a) Make regulations as are considered necessary and advisable, are ancillary to
it and are not inconsistent with it
2. (b) Provide for administrative and procedural matters for which no express, or
only partial provision has been made
3. (c) limit the application of a regulation in time or place or both
4. (d) prescribe the amount of a fee authorized by the enactment
5. (e) provide, for a regulation made by or with Lt Gov in Counsil, that its
contravention constitutes an offence
6. (f) provide that a person who is guilty of an offence created under (e) is liable to a
penalty not greater than the penalties provided in the Offence Act
3. Compliance with BC Regulations Act
1. For BCRA to apply,
a. Must fall within the defn of ‘regulation’ in s1 of the Act (more narrow than BCIA)
b. Must have magic words “regulation”, “regulations”, “prescribe”, “prescribes” or “prescribed”
used in conferring the power or identified in Schedule
i. Does not include:
1. Material adopted by reference
2. Regulation adopted by reference
3. Regulation, as defined in the Interpretation Act, of a corporation unless the
regulation is identified in the Schedule
2. In order have force and effect, SL governed by BCRA must be:
a. Examined by a person designated by the minister (usually someone in the legislative
counsel office)
i. They check that regulation is intra vires and has no drafting errors
b. Regulation deposited with the registrar of regulations (after this it comes into effect, unless it
is a regulation creating an offence in which case doesn’t come into affect until after published
in Gazette)
i. Registrar keeps central registry of all regulations for public access and ensure
compliance
c. Publication in Gazette (registrar responsible for this)
3. If not complied with then regulation is of no force and effect
4. Valid Subordinate Legisation?
The validity of this subordinate legislation relies on it being authorized by and consistent with, the
enabling statute.
Look at the regulation and the enabling provision or other provisions of the enabling statute:
a. There must be vertical coherence between the enabling act and the regulation, with the
regulation being subordinate
i. is it beyond the objects or purposes?
ii. Is it inconsistent or in conflict with?
iii. regulation must not conflict with any of the provisions of the enabling Act/cannot be
contrary to the purpose of the enabling Act (must be vertical coherence)
1. De Guzman – framework leg (valid SL)
2. Anti-Poverty – residency req (invalid SL under purpose)
b. There must be horizontal coherence
i. Is it consistent with other legislation
c. FOCUS ON THE SCOPE
i. If it goes beyond the scope of the regulation it is ultra vires and becomes invalid and
of no effect.
SOME AREAS TO KEEP IN MIND TO DISCUSS:
- if there is a specific term in the regulation and you are not sure it means the same thing
as it does in the act need to do a driedger analysis of that term:
o some tools that come up often:
 exclusio: they thought about the category and only included one kind –
rebut: greater certainty (Children’s Aid)
 absurdity!
 “or”
TWO TYPES OF SL DISCUSSED BY DUSSAULT AND BORGEAT
Factor to
Consider
Details
Key Cases
TYPES – Legislative Nature (BINDING!!)
Regulations
Orders
Decrees
Rules
Tariffs
By-laws
Letters Patent
Main type of SL, defined in BCIA s1 (open-ended language)
Narrower in scope than regulations; Order in Council
Quebec
i.e. rules of procedure in courts/tribunals
Re: regulating economic activity
Governing corporations including municipalities
Used by an authority to create a corporation and authorize particular activities
TYPES – Administrative Nature (POLICY! NOT BINDING!)
Directives
Policies – do not give rise to legally enforceable rights
David Mullan
Regulations v
Directives
Just because an administrative word appears (i.e. ‘guidelines’
don’t assume its administrative – must look at entire context
i.e. ‘framework’ legislation
Re: Friends of the
Oldman River
Society
If the following used in enabling clause, it is likely LAW:
- FORMALITY i.e. By order, with the approval of LG in Council
- FORMALITY (lots of SHALLS!)  as identified in BCIA s29,
shall indicates imperative implying this might be LAW
Limits/Concerns re: Sub Leg
1. Concerns re: Control and Accountability
a. David Mullan
i. Henry VIII clause: authorizes SL that conflicts with or overrides terms of parent
statute (CP 6-26)
ii. SL give delagatees broad discretion resulting in two main issues: reduced
legislative scrutiny w/ focus on form not substance by committees, public
consultation to resolve through notice and comment is largely online and
inaccessible to general public
2. Judicial Oversight – Limitations arising from enabling statute
a. De Guzman
i. There is framework legislation and that all the details in the regulations can be
easily changed
ii. If conflict btwn express language of an enabling clause and a regulation made
under it, the regulation may be found to be invalid
1. BUT regulations rarely found to be invalid by courts (partly b/c of broad
grants of delegated power under which they are made)
b. Federated Anti-Poverty Case
i. Regulation not authorized because court held that this regulation was inconstitent
with the statutory scheme and statutory purposes of the enabling act as the court
interpreted it
ii. Refers to Gach v. Director of Welfare
1. Regulations effecting substantial and inconsistent addition to the Act which
exceeded regulating powers was struck down
2. “LG in Council was not carrying out the provisions of the Act, it was
enlarging those provisions in a material way”
3. Judicial Oversight – Constitutional Grounds to challenge SL
a. Division of Powers
i. Enact leg. beyond authority of delegation
b. Charter
i. Infringes rights/freedoms guaranteed by the Charter w/o justification
c. Implied Constitutional Limitations
i. When provisions represent an abdication of parliamentary accountability
ii. Waddell (Henry VIII clause)
TEMPORAL APPLICATION
**to apply to the past may give retroactive application OR interfere with a vested right
RATIONALE
-
rationale for presumptions against interference based on concerns about unfairness
o how much to protect reliance on state of law?
 Not entitled or desirable for law to be static
 BUT: citizens often invest time, money, effort on basis of law and lose out
when the law relied on is changed
o Should consider a combination of reliance and expectation
KEY CONSIDERATIONS/APPROACH
1. Keep in mid precise date when the specific legislative provision at issue CIF
2. Use T1, T2, T3 structure to map out situation with timelines
3. Identify the issue – WHERE IS THERE A PROBLEM!
a. IF REPEAL – might have accruing/accrued rights issue within scope of BCIA s35(1)(c)
i. Was there a right?
1. must ID right & relevant timeline
ii. Had right accrued or was it accruing?
1. refer to fairness and precise time right was accrued and/or accruing
2. Case law
a. Accruing
i. substantial > hope or expectation (Scott)
ii. only procedural steps left, eventual fulfillment is inevitable
(Scott)
iii. tangible and concrete (not general and abstract) (Dikranian
affirms Scott’s affirmation of Cote)
iv. eventual accrual certain, not dependent on future events
(Puskas)
iii. Is there a contrary intention under BCIA s2(1) to application of BCIA s35(1)(c)
1. Clear language or clearly new intent (i.e. repeal and replacement)
b. What form of application? Depends on:
i. How provision is characterized
ii. What is the focus for where issue arises
iii. POLICY choices made by judges in regards to characterization (think of
implications for fairness, reliance, drastic and clear)
4. Make all the arguments for one side and then make all the arguments for the other side
5. Remember: if language CLEAR then the legislature intended a contrary intention BCIA s2(1)
Retroactivity
Defn: retroactive law applies to change the past legal effect of a past event or situation
- BUT: ppl at the time didn’t know it was wrong THEREFORE violates rule of law doesn’t
advise the public, unfair, undermines confidence in the law
STRONG PRESUMPTION AGAINST RETROACTIVITY UNLESS STRONG AND EXPRESS LANGUAGE
to clearly indicate intent for retroactivity
a. Gustavson Drilling
a. Legislation must be unambiguous and clear to overturn presumption
b. MacKenzie
a. Court held: to give a retroactive effect is not normal or applicable, presumption in favour of
prospectivity (against retroactivity)
Retrospectivity
Defn: change the future legal effect of a past event or situation
Driedger says PRESUMPTION AGAINST RETROSPECTIVITY. Sullivan says this presumption rarely
applied b/c:
a. often easier to deal with under presumption against vested rights
b. 3 exceptions to the presumption
a. purely procedural  BUT: can be difficult to define this
b. law that merely confers a benefit on a person and nobody other than the state assumes any
new obligations or burdens
c. law that is designed to protect the public
Bellechasse Hospital Corp v Pilotte
- court held: ongoing relationship so it is not retrospective, it is just procedural
Immediate Application
Defn: ongoing status, ongoing condition, incomplete series of events, change the future legal effect of an
ongoing situation
Accruing and Vested Rights
IF REPEAL – might have accruing/accrued rights issue within scope of BCIA s35(1)(c) BUT RIGHTS
IN QUESTION CANNOT BE COMMON LAW AND MUST COME FROM STATUTE
BCIA s35(1) If all or part of an enactment is repealed, the repeal does not
(c) affect a right or obligation acquired, accrued, accruing or incurred under the enactment
so repealed
 BCIA s1 defines repeal “includes to revoke, cancel or rescind”
 BCIA s29 defines acquire as “means to obtain by any method and includes accept,
receive, purchase, be vested with, lease, take possession, control or occupation of, and agree to
do any of those things, but does not include expropriate”
a. Do “accrued or accruing” statutory rights persist?
b. Only operates if meet terms under BCIA s35(1)(c) and BCIA s2(1)
a. Repeal of statute that grants a right or creates an obligation
b. Repeal will not affect a right that has been acquired, accrued, accruing or incurred
i. Accrued: has to be in existence, completed
ii. Accruing: have to have taken at least some substantive and significant step towards
the thing you are arguing is accruing, courts have interpreted narrowly
iii. SEE CHART BELOW!
c. UNLESS there is contrary intent (Even if interferes with accrued or accruing right was there a
contrary intention per BCIA s2(1))
i. Look for indication of a new intent in amending legislation (i.e. repeal AND
replacement)
ii. Legislature intended to extinguish accrued or accruing right
Factor
Acquired,
Accrued,
Incurred
Accruing?
Details

if completed the right is distinct, tangible, concrete and capable of immediate
enjoyment or effect therefore it is a legally enforceable right that others should not
interfere with
Rule of effectivity/rule against tautology – is it unfair for a something to be a lesser right just
because it is in progress, shouldn’t this also be protected?
SCOTT
Think about it narrowly – it is more than a hope or expectation, it needs to be substantial
steps where the right would be inevitable given the steps already taken
Substantive steps (essentially everything other than purely procedural steps where the
eventual fulfillment was inevitable given the facts)
Cameron JA “before a right may be said to be ‘accruing’, the events giving rise to it or the
conditions upon which it depends for its existence, must have been so set in train or
engaged as inevitably to give rise in due course to the right”
DIKRANIAN
Affirms Scott’s narrow interpretation using Cote’s criteria for a vested right:
a. the individuals legal situation must be tangible and concrete rather than general and
abstract
b. legal situation must have been sufficiently constituted at the time of the new statute’s
commencement
possibility of a right is not enough NEEDS to be tangible
situation must have materialized
PUSKAS
Very narrow!
A right cannot be accrued or accruing until its eventual accrual is CERTAIN and not
conditional on future events
Vested Rights: take away or diminish a legally protected expectation or right (i.e. contractual, common law
rights)
CL PRESUMPTION AGAINST INTERFERENCE WITH VESTED RIGHTS (weight of presumption varies,
can be weak b/c it can be rebutted by evidence of a contrary intention)
- vested rights are distinguished from ‘accrued or accruing rights’ BCIA s35(1)(c)
- interference with vested rights may occur regardless of whether legislation is retroactive,
retrospective or immediate in application
a. WEAK PRESUMPTION
a. Gustavson Drilling
i. “no one has a vested right to the continuance of the law as it stood in the past; in tax
law it is imperative that legislation conform to changing social needs and government
policy”
b. SUCCESSFUL
a. Canada v Lavery
i. Presumption against interference with vested rights was not rebutted and was
successful in maintaining vested rights
Factor to Consider
Repeal
Details
No “Revival”
Key Cases
BCIA s35(1)(a)
BCIA s35
Lawful Acts Not Affected
BCIA s35(1)(b)
Protection for ‘accrued or accruing rights’
BCIA s35(1)(c)
Offences
BCIA s35(1)(d)
Proceedings
BCIA s35(1)(e)
Proceedings
BCIA s35(2)
Repeal and Replacement
Personnel
BCIA s3691)(a)
BCIA s36
Continuation of Proceedings
BCIA s36(1)(b)
Procedures
BCIA s36(1)(c)
Mitigated Penalty
BCIA s36(1)(d)
Regulations
BCIA s36(1)(e)
Referential Incorporation
BCIA s36(1)(f)
THEMES TO CONSIDER FOR SHORT ESSAY/COMMENT
MODULE 1: Institutional Framework for the Enactment of Leg & Legislative Process
Stages government proposal must go through before it becomes law
1. Policy Development: problem/initiative identified, issues analyzed and options reviewed
a. Initial research, engage in RFL (Request for Legislation), Govt Caucus Committee review
2. Drafting Legislation: legislative counsel and instructing officials work together to prepare legislation
3. Enacting a Law: proposed legislation is introduced as a government bill (2 types) for enactment by
legislature, it is debated in the House and if approved becomes law when it receives Royal Assent
a. Public Bills: propose to change general law of the province
b. Private bills: limited in application to an individual/organization to provide them with
additional powers or benefits or to relieve them from the app of a general law
MODULE 2: The Problem of Meaning
Breakdowns in communication btwn source and audience may occur b/c:
1. Ambiguity
a. Traditional sense of equivocation: multiple meanings not clarified
b. Syntactic ambiguities: where it is unclear within the context which terms are modified by an
included word/phrase
c. Contextual ambiguities: factors outside the communication (diversity of experiences)
d. Coordination problem – unsure of intended meaning as each assuming the other is using a
particular meaning
e. New circumstances – temporal gap between when the communication is ‘sent’ and received
2. Elliptical communications
a. Speakers/writers make assumptions about their audience and omit mention in their
communications of factors that should be taken for granted; they assume gap will be filled
3. Improper Bivalence
a. Speaker/writer assumes analysis bivalently (true/false) when actually graded on spectrum
4. Over-Inclusiveness
a. Classification too broad to achieve goals
5. Under-Inclusiveness
a. Classification not general enough to achieve goals
6. Vagueness
a. Use of general terms assuming audience will use particular criteria to make more specific
7. Miscommunication
a. Mistakes, unintentional omission/inclusions, misuse of words/phrases
MODULE 3: Judicial Approaches to SI
Ruth Sullivan “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation”
Sullivan tried to restate Driedger:
“there is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of
legislation in its toal context, having regard to the purpose of the legislation, the consequences of proposed
interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In
other words, the courts must consider and take into account all relevant and admissible indicators of
legislative meaning. After taking these into account, the court must then adopt an interpretation that is
appropriate. An appropriate interpretation is one that can be justified in terms of (a) plausibility, that
is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative
purpose; and (c) its acceptability, that is the outcome is reasonable and just.”
Sullivan’s effort to restate driedger didn’t get anywhere with the SCC –why?
- harder for courts to use this to help justify their decisions
- ability of courts to deny that they have a choice
Sullivan says “choices are made”
- how much cotext is selected can result in a particular conclusion; there is uncertainty
SEE CHART!
Stephane Beaulac and Pierre-Andre Cote “Driedger’s ‘Modern Principle’ at the SCC: Interpretation,
Justification, Legitimation”
BC has been the most enthusiastic jurisdiction to resort to Driedger
SCC – continues to refer to Driedger even though Sullivan updated Driedger, why not accept Sullivan?
- Driedger “superior by the SCC because it is more convenient in terms of justification and,
more importantly, in terms of legitimization of judicial interpretative decisions”
Beaulac says “real use of Driedger is a rhetorical exercise rather than a real effort to provide meaning”
“At most, Driedger provides a valid starting point for SI, but it cannot define, in and by itself, the approach to
follow in all cases”
Shouldn’t hide behind guise of SI, rather acknowledge inconsistencies and create a more transparent
system that recognizes it is made up of individuals
The Problems with Driedger wrt Form (these are fairly minor)
- formulation is repetitive
- “wrongly places the intention of parliament, which pertains to the goals of construction, on
the same plane as the meaning of words, scheme of the act and its objects, all of which
refer to the means by which an intent is determined”
- suggests legislative interpretation is admissible only if it meets all of the proposed
elements (ordinary sense, scheme of the act, object of the act, intention of parliament) –
in reality first three are meant to inform intention of parliament and may be discarded if it
doesn’t make sense (i.e. throw out ordinary meaning in favour of object of act)
The Problems with Driedger wrt Substance
- oversimplifies complex process of SI resulting in rhetoric of meaning-selection and
meaning-justification
- fidelity to legislative intent is not the only value in determining meaning – i.e. R v. Daoust
where considerations of fairness and predictability trumped the search for legislative
intent
- Focus on intent of legislature results in lack of focus on consequences of proposed
interpretations (lack of policy considerations)
o Suggests no place for consequences (but Crane thinks consequences can fit
within discussion of absurdity, purpose)
- Fundamental flaw is focus on original intention of Parliament
o Outdated conception that fails to do justice to complexity of process of SI
o Might be ok for simple cases where meaning is key but what about when it is
more complicated
o Focus on intent creates judge’s false sense of maintaining objectivity – suggests
judicial decision-making and justice are impersonal
QUICK NOTES
Approach to Apply
Grammatical and Ordinary Sense
What a reasonable ordinary
person would think

imagine ordinary situation
(Shaklee)
Dictionary Definition

RISK: too technical,
abstract (Shaklee)

RISK: legal v common use
Scheme of the Act
INTERNAL COHERENCE
Co-Text



nearby words
repetitive: presumption
against tautology
o BUT can be
superfluous
cotext in BCIA?
o May, must,
obligation, right,
shall
And


Principle of Associated
Meaning (Noscitur a
Sociis) – narrow!
RISKY! Presumption
against tautology
Definitions: Includes v. Means
Or

two distinct situations
(Riddell)
List and Basket Clause (“or other”)


narrow meaning
Ejusdem Generis
Heading (usually middle of pg)
BCIA s 11 = don’t use!
Weight by:
 length/complexity
 homogeneity
 generic terms
 system of headings
 relationship to substance
Marginal Notes (usually very close
to text above sections)
BCIA s 11 = don’t use!


weak
limited use
Other Sections of Act



internal coherence
rationality
rule of effectivity
Repetition of Words
Cite BCIA s12 (same meaning
throughout act)
Cite BCIA s13 (same meaning
throughout act and regulation)


uniform of expression
(same meaning throughout
statute)
twice in 2 sep para, diff
meaning need to look at
cotext
Paragraphs
 negative inference b/c
appearance of wording
Punctuation
 comma: modify words
 not realistic
Schedules
 if conflict body> schedules
Maxims
 Noscitur a Sociis aka
Principle of Associated
Meaning
 Ejusdem Generis aka
Limited Class Rule
 Expressio Unius Est
Exclusio Alterius aka
Implied Exclusion Rule
Horizontal coherence
Referential Incorporation
 look at RI statutes
Other Relevant Statutes
 pari material: similar
subject matter
 unified voice

diff wording, diff meaning
Parallel Legislation
 esp. if same subject matter
IF CONFLICT BTWN
ENACTMENTS



newer > previous
specific > general
specificity > time
Vertical coherence
Paramountcy
 higher level prevails
Intl Conventions
Charter Values
Object of the Act
BCIA Provisions
s.8 “remedial, large, liberal”
UNLESS s2(1): contrary intention
Legislative Evolution


previous versions of
enactment: sudden
change intended or error
amendments do not = leg
intent BCIA s37(2)
Legislative History





house committee reports
press releases
briefing notes
Hansard
Proposed but unenacted
provisions
Purpose Section
 multipurpose purpose
clause

if conflict sub > purpose
Title
BCIA s9 = use title!

short and long title
Preamble
BCIA s9 = use title!


general, vague
intrinsic aid
Presumed Intention of Legislature
“Knows the Law”


rational
failure to use “term of art”
intentional
Intentional Ambiguity

new activity regulated
Common Law Presumptions

benefits-conferring

quasi-constitutional
(human rights)

penal statutes

individual rights

property rights

taxation statutes

municipal law

presumption of ‘crown
immunity’

presumption against
‘extra-territoriality’

employment law – ‘up the
ladder approach’
Broad Implications
Absurdity Principle
(absurdity may exist if
consequences of legislation are
ridiculous, frivolous,
unreasonable, inequitable,
illogical, incoherent or
incompatible with other provisions
or the purpose of the act.)
Rational v. illogical
Avoidance of Anomalous Results


rationality
i.e. deserve better
treatment receive worse
Public Policy
 supplementary
Big Picture!


what is leg truly about?
BCIA s7 (always speaking)
SUBORDINATE LEGISLATION – QUICK NOTES
NB: BCIA s13 words have the same meaning in the act and the regulation
Look at notes to determine - Law or Policy, Source of Authority, Compliance with BCRA
CASES
Framework legislation where regulation filled in details within its scope
De Guzman
(Valid SL)
Anti-Poverty
(Invalid SL)
Gach
(Invalid SL)
Regulations rarely invalid b/c delegated power is broad and can encompass
variety of activities
Regulation inconsistent with statutory scheme and purpose
Regulations SUBSTANTIALLY inconsistent with Act and exceeded powers
Delegatee who made regulation “was not carrying out the provisions of the Act, it
was enlarging those provisions in a material way”
4. Valid Subordinate Legislation?
Focus on SCOPE: if regulation goes beyond scope of enabling act it is ultra vires and will be invalid
Sub leg must be consistent with the aims and purposes of the enabling act.
Vertical Coherence
SL can’t be:
 in conflict
 inconsistent
 beyond object
 beyond purpose
ANALYZE:
 ordinary meaning
 scheme
 object
 presumed intent
 broad
implications
See if enabling act’s
purpose lines up with the
regulations outcomes
Horizontal Coherence

consistent with
other leg. (esp.
other leg RI in
enabling act)
TEMPORAL APPLICATION – QUICK NOTES
T
ISSUE
ARGUMENTS – PARTY A
EVENT
ARGUMENTS – PARTY B