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Statutes and Regulations - Implied Repeal

. Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee

In Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee (Ont CA, 2020) the Court of Appeal addressed an unusual case dealing with the history and the antiquated statutes of Mount Pleasant Cemetery in Toronto. One issue was whether, and how, the repeal of a statute can be implied (apparently repealing obsolete statutes didn't use to be done as a matter of course):
[98] As FTPC argued, the appellant’s submission is more properly characterized as being based on implied repeal. As a standard of correctness applies to statutory interpretation, the appellant’s mischaracterization is not determinative; it is for this court to determine points of law: Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 50, at para. 125. I see no unfairness as FTPC addressed implied repeal in its factum and, in any event, the substance of the appellant’s argument was based on implied repeal and was simply mischaracterized.

[99] In R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234, a case relied upon by FTPC, La Forest J. addressed implied repeal at p. 265:
[S]tringent tests…have been established to warrant a holding that a statute has been impliedly repealed. As the court put it in The India (1865), 12 L.T.N.S. 316, at p. 316, a prior statute is repealed by implication only “if the entire subject-matter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist”.
[100] In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, also relied upon by the FTPC, Wagner J. (as he then was) commented on the holding in Mercure, stating at para. 44:
[A]n implied repeal has occurred if subsequent legislation has occupied the field to such an extent that the court can infer that the legislature intended to repeal the earlier statutes. There was no mention in Mercure of a requirement to prove conflict. Both the test for implied repeal and the test for implied modification are based on the occupation of the field by subsequent legislation.
[101] A modern statute designed to repeal a prior statute is likely to so do explicitly. And, as Sullivan observes at para. 24.39, under current Canadian practice, repeal is usually carried out through the enactment of stylized provisions.

[102] Although repeal was clearly a known concept in 1849, as mentioned, there was no express repeal here of any parts of the 1849 Act. Moreover, there is a general presumption against implied repeal. That said, “the strength of that presumption against implied repeal varies according to the context. In modern times, when standards of legislative drafting are high, the presumption against implied repeal is stronger”:
Diggory Bailey & Luke Norbury, Bennion on Statutory Interpretation, 7th ed (UK: Lexis Nexis, 2019), at p. 207.[8] In a similar vein, Lord Roskill observed in Government of United States of America v. Jennings and Another (1982), 75 Cr. App. R. 367 (H.L.), that earlier cases on implied repeal had to be approached and applied with caution, since “until comparatively late in the last century statutes were not drafted with the same skill as today”: p. 376.[9].


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