“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.” Driedger: Construction of Statutes (2nd ed. 1983),

• Ordinary Meaning - plain meaning (audience [Shaklee says average rational person, or rational member of audience]); dictionaries; Interpretation Acts;

• Scheme Analysis - looking within the context of the Act (other words/sections) to

construe meaning/intent

• title; purpose statement; preamble; marginal notes...

• rule of effectivity (Riddell) - every word is there for a reason

• consequentialist reasoning - absurdity principle; anomalous results; policy...

• Purpose Analysis - object of the statute/provision (penal/benefits-conferring);

mischief/remedy

• legislative history (Hansard); general history; social context/policy...

• title; purpose statement; preamble; marginal notes...

One: Ordinary meaning/ grammar. This is the first step, but as per D and the modern approach, it is only one factor used to determine legislative intent.

  1. Defined in act? (BCIA S 12-13 state this takes precedence)
  2. Defined in an Interpretation Act? (BCIA S 29)
  3. Neither? Shaklee says we can use the dictionary, but limited. Use the meaning a reasonable person of average intelligence would come to (Shakleejudge used his own). Limited by effectivity (Riddell [smuggling])
  4. Note also the strict construction rule used by Lamer/the court in McIntosh, plain meaning of words as written. If no ambiguity, no need for all the rest (not accepted. Fed Anti-pov, all others)
  5. Rule of Effectivity (BCIA S12, Riddell) constrains definitions by stating that leg does not repeat itself unnecessarily
  6. Also, if they’re defined in other leg by same leg, that’s persuasive, moreso if on same topic (IA S15(2), Iacobucci in Bell.
  7. Common Law Presumptions (weak and subject to contextual interpretation)
  8. Ejusdem Generis (Limited Class)
  9. List of specific words followed by basket clause.
  10. If basket clause totally wide, list pointless. If list complete, basket pointless
  11. So must be an attempt to impart a class. Rascal Trucking
  12. Implied Exclusion
  13. Act sets out several, but not all, members of a class, or one or two exceptions
  14. Countered by ‘deemed to include’ as with rights entailing responsibilities, though not stated in statute, in the application of the common law rule in Children’s Aid
  15. Counter with idea that leg is using an abundance of caution (Children’s Aid), and argument that in this case, express exclusion was required by context.
  16. Individual Rights: eroded by planning statutes, but still exist with property. Have to be very clear to expropriate something.
  17. Crown immunity: BC is opposite of presumption, BCIA s.14 states applies to leg unless stated Otherwise
  18. Territorial application: no extra-territorial reach (Feds can though). Libman says if much of action occurred here, you’re good to go.
  19. Strict Construction for crim: mostly gone as of Hasslewander, maybe if D analysis still yields multiple interpretations
  20. Human rights: Quasi-constitutional statutes: Jubran: favour protection of right, but not unlimited.

Two: Scheme

  1. Scheme analysis looks at the rest of the enactment to construe meaning intent of contested provision. Look very carefully at all given provisions – does anything imply exceptions, or suggest one meaning over another?
  2. Structure. As in Mowat, inclusion of separate clauses which appear functionally similar may signal an underlying difference in intent.
  3. Works with effectivity. We assume everything is there for a reason, so try to find a reason instead of assuming otherwise. (also Mowat)

Three: Purpose

  1. What mischief does it address? (Heydon)
  2. Components of the Act:
  3. Preamble. Not binding, but per BCIA S9 and Reference re: Anti-Inflation Act
  4. Title. Binding, used to remove ambiguity in words of Act. BCIA S9. See RvLane(small weight [slot machines]) and Committee for Commonwealth( given more weight [airport])
  5. purpose Sections: similar to preamble, but more weight. Still outweighed by specific provisions (as in National Farmers Union v PEI, where contrary language in act trumped stated purpose)
  6. headings/ Marginal notes: can be considered, but not relied on (Basaraba says not relied, Lohnes (re: disturbance) says headings can be used
  7. BCIA S11 say marg notes cannot be used; McIntosh says marg notes can be helpful, but argument based on Wigglesworth, which is a Charter case.
  8. BCIA S8: all acts to be read as remedial/benefits conferring
  9. Confirmed in Rizzo and Merk
  10. Though, in Merk, they point out that this cannot supplant the goal of finding intent.
  11. Also applies, though not always, to penal statutes
  12. Lamer argues in Mckintosh that ambiguity is always resolved in favour of the accused in penal statutes, but McLachlin argues that this applies only when intent cannot be ascertained, as does Binnie in Merk. Other interpretative factors must be balanced.
  13. Can usually argue contrary intention, as per S2(1)
  14. History
  15. Can look at evolution of bill (Rizzo), past or failed versions (Mowat) (dissent in McKintosh). Weakish presumption that amendments were meant to change the law.
  16. BICA 37.2 says no! Change in law does not mean change in effect.
  17. Hansard
  18. Can’t be binding, but can be used for context (Morentaler says limited reliability, and weight, cannot rep intent, Rizzo says use minding frailties, Re: Firearms says useful to determine purpose.

Four: external context

  1. Absurdity or anomalous results
  2. Court assumes legislature does not want results which are illogical, ridiculous, unreasonable, or which defeat the purpose of the statute or render parts of it futile (Rizzo).
  3. Merk (whistleblower) expresses this as assuming the court wouldn’t contradict social norm of loyalty to employer, nor provide more protection for someone going outside the established system,
  4. Rizzo re longer serving employees missing out on protection by hanging around ‘til end.
  5. Counter with majority in McKintosh, argument that the leg is free to legislate absurdly but this is not now accepted.
  6. Policy
  7. More susceptible to argument of majority in McKintosh, that it’s not the court’s role to make policy.
  8. But court does consider policy ramifications (Harvard College v Canada re: patenting mice, Merk re: effectiveness of internal approach
  9. And sometimes they don’t win out (Mowat on HRights costs)

Five: Horizontal/Vertical Coherence

  • Leg is presumed to be constitutional. If there’s a reasonable way to read leg that complies with the constitution, it should be done (Sharpe). Bell and Gomboc clarify this to say that it only applies after D when still ambiguity.
  • One voice
  • Subject to 2(1)
  • Driedger: differences in wording among related legislation must be meant to have a different effect (as in Columbia River, broad lang in other leg provs suggests that lack of broad lang in this leg prov means lack of broad rights).
  • More specific leg wins, then newer, then older/specific (beats new/general). (Levis)

Six: Temporal Application

  • Only an issue when law attempts to apply to a set of facts that is Complete. If ongoing, it’s immediate application
  • Strong presumption against retroactivity unless required by language of act (Gustavson, Mackenzie)
  • Mackenzie: pension case, widow wanted retroactive, court said no.
  • Retroactive provision in leg was, based on history, clearly meant to be a transitional provision.
  • Violates principles of rule of law
  • unfair

Seven: Repeal

  • Repeal
  • Done through amendment
  • Legislature can, as per s. 2(1), show clear contrary intention to disregard these provisions
  • S. 35.1.a: repeal doesn’t revive previously existing legislation OR the common law. Nothing that was overridden by the leg comes back if it goes away.
  • 35.1.b. ongoing acts made legal under repealed legislation remain legal
  • 35.1.d. can still be prosecuted/whatever if leg is dead for offences that occurred prior to repeal.
  • 35.1.e. procedures etc begun under now-dead leg can continue. 35.2 says such investigations can also begin after repeal
  • 35.1.c.accrued or accruing rights and obligations survive repeal. this happens if:
  • Leg repealed, Leg created right/obligation, This right has been acquired/accrued, This right accrued under repealed leg
  • weak presumption against interference w accrued rights
  • Having a right does not mean you’ve accrued it. Steps must be taken (as in Scott)
  • See Gustavson: no right to have the law not changed.
  • Accruing: can’t be the same as above. Not quite crystallized.
  • Scott: An accruing right is one which Will, rather than may, fall into the person’s hands. Not just possible or probable, but inevitable.
  • Payment was just a procedural formality
  • Puskas: accruing rights only if it’s certain; if conditional on events that could go either way, no right.
  • Argument against accrued rights: if granting accrued/accruing rights would interfere with the general operation of the statue, no dice (automatic grandfathering, floodgates etc). Not the case in Scott
  • Repeal and replacement
  • 36.1.b. proceedings can continue as in 35.1.d, but they are to continue in compliance with replacement leg. As far is possible, new act has priority
  • 36.1.c. and 36.1.d same as b for penalties
  • E. regulations just continue, are deemed to be under the new act unless inconsistent.
  • 36.1.F. refs in other enactments to repealed enactment become refs to new enactment on same subject matter. If there is no provision which could reasonably referred to, old enactment is used.

Eight: Subordinate Legislation

  • Defined in s.1 of BCIA
  • A thing enacted under a power granted by an act OR under the LGovenor.
  • The first one is a bit tricky, because it can blur between regs and mere policy.
  • Doesn’t require sig of minister or LG, necessarily.
  • Old Man River: created Guidelines, but because of the very formal process required to create Guidelines, court found that they were regs, and thus binding on the Minister.
  • if it’s signed/put forward by a minister and signed by the LG, it’s a reg, no matter what it’s called. Simple
  • Old Man River: if a ‘directive is enacted as per an enabling clause in an Act and furthers the purposes of the act, and has been properly enacted as a reg, it’s a reg.
  • definitions in enactment flow down to regs.
  • The reverse is not true as per the BCIA, but since they’re both law, general interpretation principles suggest that it would flow up as well. Depending on any linguistic restrictions or contrary intent.
  • BC Reg Act coming into force requirements:
  • comes into force when deposited with registrar (unless date specified) s. 4.1
  • obligation to publish (5.1) unless 6
  • or reasonable attempt to make new regs known.
  • Authority: Enabling Clauses
  • 41.1.c. regs can be limited in time or place, which is not normal for legislation
  • Can grant any power available to the Leg/Parl, no limit (Grey and Waddell say HVIII clauses okay)
  • Challenges to Subordinate leg:
  • Regs must conform to formal requirements, as laid out in the enabling clause
  • Inconsistent with objective of enabling statute (Fed anti-pov)
  • Where auth to create reg isn’t clearly granted, it has to conform to the goals of the statute. As in Fed anti-pov groups, can look at exclusions/purpose etc to determine this.
  • In this case, found that ‘eligibility’ in context of power to make regulations was limited to qualifications based on parameters of need defined in Act, and disqualifications spelled out in Act.
  • Beyond authority of the enabling clause. (41.1.a)
  • Works with above, very similar argument
  • These are both strong.
  • Vertical coherence.
  • being discriminatory in a manner not authorized explicitly or by necessary implication
  • Horizontal coherence comes in, especially vis a vis the Human Rights Act (of BC)
  • Other:
  • Vague
  • Weak. Can probably be interpreted.
  • Uncertain
  • Unreasonable
  • Assuming everything else is fine, this is very unlikely to work.
  • Bad faith
  • V. weak