Brooke Haberstock LLP FINAL EXAM OUTLINE

Brooke Haberstock LLP FINAL EXAM OUTLINE~

TABLE OF CONTENTS:

SAMPLE MODERN APPROACH ANSWER:

SUBORDINATE LEGISLATION:

Steps for Interpreting Subordinate Legislation:

COMPONENTS OF A STATUTE:

CONFLICT BETWEEN 2 STATUTES:

TEMPORAL ISSUES:

Types of (TEMPORAL) Modifications:

Temporal Activation:

Steps for Dealing with Temporal Issues: (As per Sullivan)

CALCULATING TIME (BCIA)

STATUTORY INTERPRETATION TOOLS:

COMMON LAW PRESUMPTIONS:

CASE BRIEFS:

PASSING A BILL

BCIA PROVISIONS

INTERPRETATION ACT, R.S.B.C. 1996, c. 238

TERMS DEFINED IN BCIA S.29:

SAMPLE MODERN APPROACH ANSWER:

1) Issue/Statement of Issue:

Identify the facts of the case (Who is being charged?)
State what they are being charged under. [make this happen briefly]
Narrow down to specific interpretation problem(s)
If temporal see p. X
Identify the positions of the parties (who is arguing what- narrow vs. broad interpretation, what would the result be? Do the parties agree on anything?)
One interpretation would result in X and the other would result in Y.
If more than one issue, do this twice.
**Note if both are necessary (Think of Juicy Drinkz)

2) General Rules & Principles of Statutory Interpretation

Modern Approach/Driedger Method:
[Insert description here]

Application of the Law:

3) Literary Context (Textual Analysis)

The first phase of my analysis will explore the literary and textual factors relevant to the interpretation of the term x/of the issues at hand.

The act has provided definitions for the terms X and X.

Stipulated definitions: Provided in the statute.
Does the stipulated definition require further analysis?
**Stipulated definitions are ENACTED aka PART OF THE ACT therefore : legislative intent
BCIA s.12 & 13 state that definitions laid out apply to the entire statute, unless a contrary intention is stated.

The BCIA provides the definition for the term X/This act uses the word X defined in s.29 as X.

(CP 4-3) must turn to ordinary meaning. “However, since most words are not defined in statutes, and even if they are, their definitions will require interpretation, you must also pay attention to the usual meaning of the words that were chosen by the legislature to express it’s intention”
Do any of the definitions provided need further attention? Are they exhaustive (this is what it means) or non-exhaustive ("includes")
No stipulated defs? Or BCIA defs? Ordinary meaning (BOTH SIDES) {'golden rule' as per Lamer in McIntosh case}
(CP 4-3) must turn to ordinary meanings. “However, since most words are not defined in statutes, and even if they are, their definitions will require interpretation, you must also pay attention to the usual meaning of the words that were chosen by the legislature to express it’s intention”
Do any of the definitions provided need further attention? Are they exhaustive (this is what it means) or non-exhaustive ("includes")
Shaklee test: What would come to mind for a "reasonable person”
Dictionary definitions???

As seen in R v. Riddell, dictionary definitions can be used, but R v. Shaklee tells us that they are of “limited usefulness”.

* Stipulated definitions>Interpretation Act definitions>Ordinary Meaning (Reasonable Person)>Dictionary
Stipulated definition>Act dealing with same S.M definition
Legal Dictionary>Regular Dictionary

“May”/”Or”
“May”: BCIA s. 29 “to be construed as permissive and empowering”
“Or”: R v.Riddell “If the legislature has chosen to use expressions which are joined or more precisely separated, by the conjunction “or,” it must be assumed that it wished to cover two situations. One cannot presume that it would have used two synonymous expressions without reason and with no purpose” (tautology)
Presumptions?--> Against tautology? Uniformity of Expression?
Canons?

4) The Scheme of the Act (Legal)(Purposive Analysis)(“The means”)

In this section, I will employ a purposive analysis in looking at the scheme and object of the X act. The structure and content of the scheme is vital to the analysis, as it is extremely important that a provision have internal coherence within the rest of the statute. In this segment, I will employ various secondary tools of interpretation, such as presumptions and maxims.

What type of legislation is it? (What does this tell us about purpose?)
Note: If you determine legislation to be penal, you can use the penal presumption here if ambiguous results at the end.
(Majority decision in Bell ExpressVu)

Is there consistency?
Internal coherence? Do other parts of the statute give any clues as to the issue? Terms/phrases must be interpreted in a way that fits into the scheme of the statute and avoids inconsistencies. (CP 4-66)
If a multi statute scheme—horizontal coherence
Is the statute/law vertically coherent?
Constitution > all
Fed > Prov
Human Rights Codes > Other provincial statute
Statute> Regulation
Presumptions of legislative intent
Canons of Construction
Presumptions?-> Against tautology? Uniformity of Expression?

5) The Object of the Act (Legal)(Purposive Analysis)(“The end”)

Object of the act and it's purpose:
The object of the act is used to guide our interpretation of the issue in question and is identified as a tool of statutory interpretation by Justice Iacobucci in Rizzo w/ the analysis of the object of the Employment Standards Act
Look for:
1) Ridiculous consequences
(As Justice Iacobucci claims in Rizzo, “the legislature does not intend to produce absurd consequences.”)
2) Inequitable results
3) Incompatibility
Components of a statute—ie. Title.

X has X weight because of X.

Historical Context : Look at the facts that existed at the time the law was debated and passed.
“the conditions of things existent at the time of the enactment” (Grand Trunk Railway Co of Canada v. Hepworth)
Conclusion: “The interpretation that favors X is more compelling”
**What other information would you have liked to have had in the legal context for the purpose of analysis?
Was this a multi-statute scheme?
What components of the statute are missing?--> Would these components have been given more weight and would this have affected your analysis?

6) Legislative History and Evolution (External)(Consequential Analysis)

In the final phase of my analysis, I will employ a consequential lens in looking at extrinsic factors, with the goal of determining legislative intent.

Legislative Evolution:
Legislative History:
Un-enacted provisions:

Unenacted provisions can shed light on legislative purpose, as seen in R v. McIntosh, but as is acknowledged in Mowat,“great care must be taken in deciding how much, if any weight can be given to this sort of material.”

7) Public Policy and Legislative Intent (Consequential Analysis)

Information about societal context?
Hansard?

“Hansard evidence is admitted as relevant to the background and purpose of the legislation, courts must remain mindful of the limited reliability and weight of such evidence” (CNR v. Canada)

Would particular interpretation breach the purpose of the act?
**Is there any other information that could benefit your analysis? (that you don’t have)
Are there other statutes enacted by the same legislature that defines the phrase/word in question that can be turned to for guidance, especially if the statute is in pari materia (same subject matter). (WOULD REPEAT THIS FOR EACH ISSUE)

8) Conclusion

Lay out both interpretations and the result from each.

"The interpretation that favors X is more compelling”

In conclusion and for the above reasons, I conclude that the expression/word/phrase X in s.X is best interpreted (narrowly/broadly) and the likely outcome is on the side of X.

"The interpretation that should be favored is X, because of the strengths in the arguments regarding X"

Note: The interpretive framework applied by the courts in determining the meaning of legislative language is broad and flexible, typically affording judges considerable latitude to choose from a range of possible and plausible interpretations.

SUBORDINATE LEGISLATION:

2 classes of subordinate legislation as per Dussault and Borgeat:

(1) legislative stands on same footing as statutory enactment
(all are set out under a ‘parent statute’) Binding.

regulation- wide authority
order- specific purpose
rule- rules of procedure for tribunals etc
tariff- designates quantitative norms
bylaw- rules/norms adopted by corporations
letters patent –used to create a corporation and authorize it to engage in particular activities.

(2) administrative refers to ‘directives’ for guiding gov’t officials in exercising statutory authority and are generally not expressly provided in legislation. NOT binding.
(Note: administrators frequently spend a lot of time working with legislation and therefore an argument can be made for some gleaning/weight)

Not directed at the public at large.
Not law.
Ensures uniformity of activities common to employees.
Ensures uniformity, consistency, predictability of interpretations and applications of law and regulations by civil servants.

Steps for Interpreting Subordinate Legislation:

1) Characterization of the instrument: Is it law or procedure? (policy is not binding but can play a roll in the application of the law.)

Policy: Will appear as more of a guide than a law and is based on implicit (rather than explicit) authority.
Law(SI): generally it will be clear that the instrument is a regulation:
BCIA s. 41(2): declares that a regulation made under the authority of an enactment has the force of law.
BCIA s. 36(1): Provides for the survival of regulations following the repeal/replacement of the enabling act.
BCIA: s.13: “An expression used in a regulation has the same meaning as in the enactment authorizing the regulation”

2) If you have subordinate legislation, identify the source of authority: enabling Act and provisions

Identify the enabling provision in the Act
Any limitations/specifications? Ie. How and ny whom can regulations be made? If these requirements are included, have they been observed?

3) Does the regulation comply with the BCRA?  see A-47 of CP!

4) Does the enabling act authorize the subordinate legislation that has been made? Are there grounds on which to challenge the validity of the subordinate legislation?

Must be authorized: (as per parent statute’s enabling clause)
Consistency: Is it consistent with the enabling statute? (Can look to the enabling clause or the purpose clause here, as stated in Broadcasting Reference, but conflict with the statute itself will always be taken more seriously than a conflict with a purpose statement. Policy statements such as purpose clauses will actually limit the meaning.)
Is there vertical coherence between the parent act and the subordinate legislation?  Is the subordinate legislation beyond the objects/purpose of the enabling statute?
Use statutory interpretation tools to interpret the meaning of the enabling provision/enabling act.
Does the regulation demonstrate horizontal coherence? Is it consistent with other related legislation?
If the regulation goes beyond the scope of what is authorized or is inconsistent/in conflict with the enabling legislation – it is invalid and has no effect. Ultra Vires.
(Note: If regulation is found to be intra vires, does it’s parent statute conflict with other statute? If yes, see p.10)

COMPONENTS OF A STATUTE:

How useful is the component?

How has it been used? (case law)
How much weight is it likely to be given and WHY
What are the pros and cons of using this component?

Title (CP 4-40)

Indicates the purpose and scope of the act
Comes before enacting clause
Titles are treated as part of the Act: (s.9 of BCIA)
"intended to assist in explaining its meaning and object"
Under parliamentary procedures, long title is supposed to cover everything contained in a bill; if some provisions exceed the long title, either the long title must be amended or the excessive provisions are dropped.
Weight: Titles are given some weight in aiding with determining intent.
(Similar to preamble)
Ie. Hudon v. United States Borax & Chemical Corp: Case determining whether the limitation placed on the right of a passenger in a vehicle to claim damages for injuries apply to an accident in a private parking lot  refers to long title which emphasizes only “Highways”
Ie. Committee for the Commonwealth of Canada v. Canada: political activism in the airport-full title of act in question contains the word “Operations” which they take to imply a commercial connotation, making political activism exempt from the act.

Preamble (CP 4-44)

"Whereas" clauses that precede the statute's provisions. Recite the circumstances and considerations that gave rise to the statute. Typically contain facts and goals.
Preambles are treated as part of the Act (s.9 of BCIA, s.13 of fed)
Weight:
Professional uses:
Explains impetus for the enactment: ie. Law implementing an international agreement or responding to a court decision.
Lay groundwork for interpretation (Roach article)
Symbolic uses:
Persuade citizens about the value of the law.
Roach argues that this "aspirational" usage is primary use.
Have to consider: Is it purely symbolic or professional?
ie. Anti-Inflation Act –preamble used to bolster the government’s argument for the constitutionality of the law—implies “matter of serious national concern”

Purpose Clauses: (CP 4-52)

An express statement of principles and policies that the legislature wants to achieve.
Can include a number of competing policies or principles.
Purpose clause>Preamble (b/c they have the 'force of law')
Set out the context of legislation
Weight:
How specific and coherent are the principles/policies?
Are there other indicators of legislative purpose, or are you only reliant on these clauses?
Substantive provisions>Purpose clauses>Preambles
Ie. National Farmers Union v. Potato Marketing Council : MCQUAID J determines that in conflict between a substantive provision and a purpose clause, substantive provision always wins. **Sullivan specifies exception: Might be a drafting error in the provision.

Definitions (CP 4-37)

Complicated statutes may have a definition section for each part
“words of the utmost importance are defined by interpretation acts” CP 4-32
Definitions within the statute itself always take precedence over plain meaning and dictionary definitions. Statutory definitions>Plain Meaning>Dictionary (Legal>Regular)
Read the intro section as well as the section for the relevant part.
Then consider the definitions section in Interpretation Act

Is the word used in other places in the statute?
Coherent meaning search! (rarely used two different ways in one statute)

Is the definition exhaustive or non-exhaustive (inclusive)?

Headings (CP 4-56)

Serve as brief pointers to the subject matters dealt within the relevant provisions.
Provide an overall structure to the statute. (intrinsic aid)
Weight:
Ie. R v. Lohnes—headings support the intention of parliament

Marginal Notes/Head Notes (CP 4-56)

Weight:

Cites R v. Wigglesworth WILSON J

BCIA s. 14 claims that they are “added editorially for convenience of reference only” (same goes federally)
Marginal notes are made by drafters and carry less weight than headings which are made by parliament.
Sullivan claims that they are physically separate from the rest of the statute and therefore intended as a “finders aid”.
*In BC we only use head notes—not marginal notes.

Punctuation (CP 4-60)

Will affect the meaning of a word or phrase in a text.
Oxford comma.
R v. Jaagusta

Schedules (CP 4-62)

Located in a statute at the end of the provisions – schedules or appendixes contain materials that would not fit in the provisions themselves because of length/formatting etc. (Could come in the form of maps, lists etc)
Weight:
Ie. Nishga’a Final Agreement: “as set out in the Schedule”
Ie. Houde v. Quebec Catholic School Commission—provisions of the statute overrule the schedule because not referenced in the provision itself.

CONFLICT BETWEEN 2 STATUTES:

Rules:

(1) new>old

(2) specific>general

(3) specificity>newness (ie. Older specific statute>newer general statute)

TEMPORAL ISSUES:

Commencement date that statute has force of law. If silent on date of commencement, becomes date of assent as per s.3(2).

(Note that even if a statute has not yet received royal assent, it is still permitted for regulations to be created under it, which suggests that although commencement has not yet occurred, the legislative intent is apparent.

BCIA s.4(1)  enactment commences at the beginning of the day it comes into force.
BCIA s.4(3) enactment ceases to have effect at the end of the day on which it is repealed.

Sources: BCIA s.5, Ritchie, J: Reference Re: Criminal Law Amendment Act

Revisions:
Statute Revision Act: s.8(3)revision to a statute may involve substantive amendments
More commonly, just housekeeping.
Transitions:
BCIA s.36 provides that if the new Act reduces a penalty or punishment, the new provisions will apply in relation to any penalty or punishment imposed or adjusted after the repeal and replacement.
s.11(i) of Charter  If variation in punishment between commission and sentencing, benefit of less severe punishment.
BCIA s.36(1)(f): “referential incorporation” If no provision in a new enactment relates to the same subject matter, a former “repealed” enactment must be construed to be “unrepealed” so far as is necessary to give effect to the referential incorporation.

Types of (TEMPORAL) Modifications:

(1) Amendments: most of the time are substantive:
oBCIA S. 34 “An amending enactment must be construed as part of the enactment that it amends.”
2 Categories:
(1) Temporal Situation: Law changes—which law applies? In these cases, one party generally want the old law to apply, one wants new law. (BCIA S. 35(1)(a): “If all or part of an enactment is repealed, the repeal does not affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed.”
(2) Law Changes Pre or Post Facts: What inference can we draw from this change in law and how does this help us to limit the meaning of the issue or word in question? But:

BCIA S. 37(2) amendment not indicative of substantive change in law.

(2) Expiration:

“sunset clause” provides that statute ceases to be law on a specific day
obsolescence: (1) no longer factually relevant (2) obsolete purpose (3) ‘spent’ (ie. Tax law grace period)

(3) Repeal:

‘implied’ repeal: BCIA s.4(4) statute that has “expired or otherwise ceased to have effect”  interpreted to be implied repeal
express repeal by another statute: BCIA s. 35: principles about repeal to ensure smooth transition.
BCIA s.36 deals with repeal & replacement.

Protecting “accrued or accruing rights”:
S.35(1)c): repeal does not “affect a right or obligation acquired, accrued, accruing or incurred,” under the repealed enactment
BCIA 35(1)(e) & 35(2)“accrued” or “accruing”: a proceeding or remedy in relation to either of these may be initiated, continued or enforced after its repeal.

Temporal Activation: