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STATUTES AND STATUTORY INTERPRETATION

GENERAL

1. Basic Statutory Interpretation

STATUTES AND THE COMMON LAW

2. Waiving Statutory Protection
3. Immunity Provisions and Liability

SPECIFIC INTERPRETATION SITUATIONS

4. Expressio Unius Est Exclusio Alterius
5. Interpretation of Benefits-Conferring Legislation
6. Strict Interpretation of Expropriation Provisions

TEMPORAL APPLICATION OF LEGISLATION

7. Temporal Application of Legislation

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GENERAL

1. Basic Statutory Interpretation

. Rizzo v Rizzo Shoes (SCC, 1998)

The Supreme Court of Canada case of Rizzo v Rizzo Shoes Ltd. (SCC, 1998) is, by far, the modern leading case on statutory interpretation, having been cited in over 3,500 other cases. The issue in Rizzo was whether terminations of employment brought about by a bankruptcy would operate to trigger the employees' termination and severance rights under Ontario's Employment Standards Act, RSO 1980 ('ESA').

The lower Court of Appeal found that it did not, largely on the reasoning that several key ESA provisions made the act of termination that of the employer [“[n]o employer shall terminate the employment of an employee” (s. 40(1)), “the notice required by an employer to terminate the employment” (s. 40(2)), and “[a]n employer who has terminated or who proposes to terminate the employment of employees” (s. 40(5))].

However despite this strong statutory evidence, the Supreme Court of Canada reversed and found for the employees, and in doing so elaborated a new regime for statutory interpretation. In so doing it moved away from an emphasis on the plain text of the statute, and to a more wholistic-based contextual interpretation. The court quotes from Elmer Driedger in Construction of Statutes (2nd ed. 1983) as follows:
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.
This passage is quoted through the cases innumerable times. As well the court also relies on s.10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.

The court goes on to recognize the importance of the protection of the employment relationship in our society, and that the Court of Appeal's conclusion on these issues was effectively absurd in the sense of rendering the awarding of termination and severance pay arbitrary depending on when the employee's termination took place, ie. before or after the bankruptcy [paras 27-29].

. Bell ExpressVu Limited Partnership v. Rex (SCC, 2002)

In Bell ExpressVu Limited Partnership v. Rex (SCC, 2002) the Supreme Court of Canada largely repeats the doctrine from Rizzo, but adds additional commentary on discerning the presence of ambiguity and how to deal with it:
27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56 (CanLII), at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)

28 Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 1981 CanLII 1642 (ON CA), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398, at p. 413; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53 (CanLII), at para. 46. I shall discuss the “Charter values” principle later in these reasons.)

29 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.

30 For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra, at pp. 4-5).

...

55 After considering the entire context of s. 9(1)(c), and after reading its words in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, I find no ambiguity. .... There is no need in this circumstance to resort to any of the subsidiary principles of statutory interpretation.
. Tyendinaga Mohawk Council (Ont CA, 2014)

Modern statutory (or legislative) interpretation does not restrict itself to strict grammar or wording, now context and statutory purpose are equally important: Tyendinaga Mohawk Council v. Brant (Ont CA, 2014), para 51-52. [para 51-52]:
[51] Statutory interpretation cannot be founded on the wording of the legislation alone and strict construction of statutes has given way to purposive and contextual interpretation. Our jurisprudence has adopted the principle pronounced by E. A. Driedger: “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”: E. A. Driedger, Construction of Statutes, 2d ed., (Toronto: Butterworths, 1983) at 87. The Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 25, interpreted this principle as follows:

As this Court has frequently stated, the proper construction of a statutory provision flows from reading the words of the provision in their grammatical and ordinary sense and in their entire context, harmoniously with the scheme of the statute as a whole, the purpose of the statute, and the intention of Parliament. The purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act’s legislative history and the context of its enactment. [Citations omitted.]

[52] It is necessary, therefore, to determine the purpose of the legislation, whether as a whole or as expressed in a particular provision.
. Rooney v. ArcelorMittal S.A. (Ont CA, 2016)

In Rooney v. ArcelorMittal S.A. Ont CA, 2014) the Court of Appeal states this with respect to basic principles of statutory interpretation, drawing from the 1998 Supreme Court of Canada Rizzo case:
(1) Modern Principle of Statutory Interpretation

[10] The starting point in a review of the modern principle of statutory interpretation is Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. That case provides both general guidance on the proper approach to statutory interpretation and specific guidance on how to apply that approach where the plain meaning of a provision appears to conflict with its underlying statutory purpose.

[11] Rizzo Shoes is the best known authority for how to approach the task of statutory interpretation and has been cited more than 3,000 times by courts at all levels. Iacobucci J., writing for the court, endorsed Driedger’s “modern principle” of statutory interpretation, at para. 21, quoting the following passage from Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87:
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.
....

[13] The modern principle takes a more holistic view. As Iacobucci J. explained in Rizzo Shoes, at para. 21, the modern principle “recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.” Sullivan expands on this idea, at §2.18: “Today, as the modern principle indicates, legislative intent, textual meaning and legal norms are all legitimate concerns of interpreters and each has a role to play in every interpretive effort” (emphasis added).

[14] That is the general guidance that Rizzo Shoes provides in all cases involving statutory interpretation. Equally important for present purposes is the guidance the case provides in circumstances where the plain meaning of a provision appears to conflict with its underlying statutory purpose. The issue in Rizzo Shoes was whether employees who lost their jobs when their employer went bankrupt were entitled to termination and severance pay under the Employment Standards Act, 1981, S.O. 1981, c. 22 (the “ESA”). That statute provided that such benefits were payable when a claimant’s employment was “terminated by an employer”: see ss. 40 and 40a. The question was whether bankruptcy acted as a “termination” for purposes of the Act.

[15] The judge at first instance held that it did. He reasoned that the object and intent of the Employment Standards Act was to provide minimum employment standards and to benefit and protect employees’ interests. As remedial legislation, the Act should be given a fair, large, and liberal interpretation to advance its goals.

[16] The Court of Appeal for Ontario disagreed. It focused on the plain meaning of the impugned provisions and concluded that the rights to termination and severance pay were limited to situations where the employer actively terminates the employee – not when the termination results by operation of law, as in a bankruptcy.

[17] Iacobucci J. identified the fundamental tension as follows, at para. 20:
At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation.
[18] It was in this context that Iacobucci J. repudiated the view that statutory interpretation could be “founded on the wording of the legislation alone.” Instead, the words of the statute had to be read in their entire context, having regard not just to their ordinary and grammatical meaning but also to the scheme and object of the Act and to the legislature’s intention.

[19] Iacobucci J. examined the Court of Appeal’s reasoning in light of this standard and found it “incomplete”. He explained his conclusion, at para. 23:
Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized.
[20] Applying the modern principle to the case before him, Iacobucci J. concluded that the impugned provisions of the Employment Standards Act should be interpreted to include the employees whose jobs were terminated as a result of their employer’s bankruptcy. He held the following with respect to the Court of Appeal’s restrictive interpretation of the word “termination”:

• It was incompatible with the object of the Act, which was to protect employees;

• It was incompatible with the object of the termination and severance pay provisions themselves, which was to provide employees with a cushion against the adverse economic effects of termination without notice; and

• It would lead to absurd results because it would distinguish between employees’ entitlement to benefits based on whether they were dismissed the day before or the day after their employer’s bankruptcy became final.
. R v Wookey (Ont CA, 2016)

In this case the Court of Appeal states basic principles of statutory interpretation as follows:
[23] The modern principle of statutory interpretation is that “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”: Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[24] The starting point for statutory interpretation under the modern principle is to determine the ordinary meaning of the text: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014) at paras. 3.5-3.8 (“Sullivan”).

[25] Ordinary meaning “refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context”: Sullivan, at para. 3.9, cited in Pharmascience Inc. v. Binet, 2006 SCC 48 (CanLII), [2006] 2 S.C.R. 513, at para. 30. Another way of describing ordinary meaning is as “the natural meaning which appears when the provision is simply read through”: Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735; Pharmascience Inc. v. Binet, at para. 30; Sullivan, at para. 3.9.

STATUTES AND THE COMMON LAW

2. Waiving Statutory Protections

. General

There is a old common law 'rule' that has taken on much more importance with the extensive development of public welfare statutes. The idea is simple, that private parties can contract out of statutory protections that favour one of them. Many public welfare statutes now provide for 'non-waiver' provisions that override this common law history, without which the superior economic power of one party would render the statutory protections ineffectual [eg. Residential Tenancies Act, RSO 2006, c.17, s.3(1)].

The issue has also fallen to be decided as public policy.

. Public Policy

In Fleming v. Massey (Ont CA, 2016), the issue was whether private parties could contractually waive protections granted one of them under the Workplace Safety and Insurance Act, which protections ensured workers compensation for workplace injuries. In this case the court expresses the view that the 'old' common law rule (that parties may contract out or waive statutory protections) should, in several statutory areas (eg. worker's insurance legislation, human rights legislation and others), be reversed on public policy grounds so that an express statutory provision should be required to allow such waiver [paras 29-33].


3. Immunity Provisions and Liability

In D'Mello v The Law Society of Upper Canada (Ont CA, 2014) the Court of Appeal discusses whether a statutory tort immunity provision which protected a public body for 'good faith' actions, ousted by implication the common law defamation protection of absolute privilege. The Court of Appeal commented as follows on the interaction between statutes and the common law:
[13] ..... The construction of statutes presumes that legislatures do not intend to interfere with the common law except insofar as the statute clearly and unambiguously does so. The effect of the presumption is to enhance the stability of the law by favouring certainty and fair notice over vague and inadvertent change that could otherwise result. See Sullivan on the Construction of Statutes, 6th ed., (Markham, Ont.: LexisNexis, 2014), at pp. 504, 538-39; and Evans v. Gonder, 2010 ONCA 172 (CanLII), 54 E.T.R. (3d) 193, at para. 40.

....

[15] Inasmuch as there is no express indication from the legislature that s. 9 of the Act is meant to be an exhaustive code, or meant to preclude resort to the common law in actions for defamation, the legislation should be read as supplementing the common law in two respects. First, with respect to any action or proceeding for damages, including an action for negligence or abuse of process, s. 9 extends the common law immunity from prosecution for those performing quasi-judicial functions to officials of the Law Society conducting an investigation while acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the appellant contends here, a rights-limiting measure. Insofar as defamation actions are concerned, it does not detract from the common law defence of absolute privilege in respect of an action for defamation in any way.

[16] Second, s. 9 also supplements the common law in actions where defamation is alleged. The common law defence of absolute privilege applies only if the alleged defamatory statement is related to the investigation. If Mr. McClyment had made a defamatory statement that was unrelated to the investigation, that statement would not be protected by absolute privilege at common law. But it could still potentially be protected by s. 9 if it was done in good faith.

SPECIFIC INTERPRETATION SITUATIONS

4. Expressio Unius Est Exclusio Alterius

This well-known principle of statutory interpretation, 'implied exclusion' or expressio unius est exclusio alterius, may apply when a condition is expressly applied to one situation but not the second. The idea is that when a statute expressly addresses the condition in one case, that it's absence in the second must be intentional. It's sort of a idea that statutes are omniscient.

However the doctrine has been held to be subject to a more basic principle of statutory interpretation, that of reading the statute in it's entire context: Fleming v. Massey (Ont CA, 2016), para 36-46:
[44] Rothstein J. reiterated, at para. 16, that the modern approach to statutory construction is “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”.

[45] Reading the WSIA as a whole, it is apparent its objective is to ensure injured workers have access to compensation. It employs two different means to accomplish that objective. The first means provides workers with an insurance plan and completely eliminates workers’ civil actions. In the part of the Act dealing with the first means, it was necessary to prohibit only the waiver of benefits under the insurance plan. The second means, Part X, makes numerous changes to the common law to achieve the same statutory objective by providing workers with rights of action for damages. It seems to me that applying the implied exclusion principle to s. 16 to infer a worker can waive the rights provided by Part X would fundamentally undermine what the Legislature is trying to achieve in Part X.

5. Interpretation of Benefits-Conferring Legislation

It has been a long-standing principle of statutory interpretation that public welfare, or more specifically 'benefits-conferring legislation' receives a more generous, pro-claimant interpretation than other legislative text. This principle was made plain in Rizzo at para 36:
36 Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, e.g., Abrahams v. Attorney General of Canada, 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2, at p. 10; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, at p. 537). ...

6. Strict Interpretation of Expropriation Provisions

. 1739061 Ontario Inc. v. Hamilton-Wentworth District (Ont CA, 2016)

In this case the Court of Appeal held that the traditional statutory interpretation requiring a strict interpretation against statutes providing for expropriations, need not apply:
[50] In support of its argument that the phrase, “the purposes of the expropriating authority”, in s. 41(1) of the Expropriations Act, “should be strictly construed” against the expropriating authority, the appellant relies heavily on the decision of the Supreme Court of Canada in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., 1997 CanLII 400 (SCC), [1997] 1 S.C.R. 32, at paras. 20-23. A majority of the court held:
The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s private property. It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been effective. …

Further, since the Expropriations Act is a remedial statute, it must be given a broad and liberal interpretation consistent with its purpose. Substance, not form is the governing factor. …

The application of these principles has resulted in the presumption that whenever land is expropriated, compensation will be paid. This has been the consistent approach of this Court.

It follows that the Expropriations Act should be read in a broad and purposive manner in order to comply with the aim of the act to fully compensate a land owner whose property has been taken. [Internal citations omitted.]
[51] But the development of the law in recent decades has limited the application of the strict construction approach to situations where an irreducible ambiguity appears. No such ambiguity exists in this case. In Canada 3000 Inc. (Re); Inter-Canadian (1991) Inc. (Trust of), 2006 SCC 24 (CanLII), [2006] 1 S.C.R. 865, Binnie J. noted, at para. 84:
[O]nly if a provision is ambiguous (in that after full consideration of the context, multiple interpretations of the words arise that are equally consistent with Parliamentary intent), is it permissible to resort to interpretive presumptions such as "strict construction". The applicable principle is not "strict construction" but s. 12 of the Interpretation Act, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
See also R. v. Dunn, 2013 ONCA 539 (CanLII), at paras. 36-39, Toronto Condominium Corporation No. 1908 v. Stefco Plumbing and Mechanical Contracting Inc., 2014 ONCA 4806, at para.37; Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), at para. 51; 1420041 Ontario Inc. v. 1 King West Inc., 2012 ONCA 249, at para. 32.

[52] The modern approach to statutory interpretation requires the court to consider the grammatical and ordinary sense of the words used, the broader context having regard to the scheme and objects of the Act, and the intention of the Legislature. There is no need to import a presumed intent when the actual intent is clear, and doing so in the absence of an irreducible ambiguity would be an error of law.

TEMPORAL APPLICATION OF LEGISLATION

7. Temporal Application of Legislation

. Terminology Note re Retroactive v Retrospective

The vast majority of legislation is prospective, acting in the future only. However two concepts which bear on the past are 'retroactive' and 'retrospective'. The distinction between the two is set out in Burlington (City) v. Burlington Airpak Inc. (Ont CA, 2017) [para 39]:
[39] There is a distinction drawn between retroactive and retrospective legislation, as explained by Iacobucci J. in Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358, at para. 39:
The terms, “retroactivity” and “retrospectivity”, while frequently used in relation to statutory construction, can be confusing. E. A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pp. 268-69, has offered these concise definitions which I find helpful:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original.]
. Procedural and Substantive Legislation in Operation

This principle applies when a prospective amendment is made to substantive ('rights') law. While any procedural rule takes effect immediately upon the amendment [Canadian Imperial Bank of Commerce v Deloitte & Touche (Ont CA, 2014) [paras 24], the 'old' substantive law persists. And it persists as far as pre-amendment rights are still at issue in any case, current or future.

This is an artifact of legal 'vesting', the idea that once you have claimed rights (if you claim them before the rights has been rescinded by amendment), then they can't be taken away.

. Presumption Against Retrospectivity

This case speaks of a presumption against retrospectivity R v Bengy (Ont CA, 2015):
[40] The leading and most recent authority on the presumption against retrospectivity is the Supreme Court decision in R. v. Dineley, 2012 SCC 58 (CanLII), [2012] 3 S.C.R. 272. In Dineley, the court was divided four to three over whether Parliament’s repeal of the “Carter defence” in the drinking and driving context was applicable to – and therefore removed the defence from – defendants who were tried post-amendment, but allegedly committed offences pre-amendment. The court was unanimous on the governing principle, expressed by the majority at para. 10 (and adopted by the dissent at paras. 45-47):
New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively…. However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases.
[41] Applying this principle, the court was divided over whether the amendment was properly characterized as affecting substantive or procedural rights. The majority concluded the amendment affected substantive rights and therefore applied strictly prospectively. Accordingly, the former Carter defence was available to those persons alleged to have committed offences prior to the amendment, even if their trials took place after the amendment. Conversely, the minority concluded the amendment was procedural and therefore retrospectively removed the defence from all persons tried after it came into force.

[42] Deschamps J., writing for the majority, at para. 10., explained the principle that animates the presumption against retrospectivity: “Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional.”

[43] In Carriere, Wakeling J. referred to the policy rationale behind the presumption, at para. 57, as described in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008):
Perhaps the most fundamental tenet of the rule of law is that those who are governed by the law must have knowledge of its rules before acting; otherwise, any compliance with the law on their part is purely accidental. Citizens must have knowledge of the law before acting so that they can adjust their conduct to avoid undesirable consequences and secure desirable ones. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized – ideally before commencement but at the latest upon commencement.… Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave.


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