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Statutes and Regulations - Temporal Application (3). Canada v. Microbjo Properties Inc.
In Canada v. Microbjo Properties Inc. (Fed CA, 2023) the Federal Court of Appeal noted the statutory interpretation effect of legislative amendments:[62] The respondents did make the additional argument that Parliament, by resorting to a deeming rule in the recent amendment to section 160 (see new subs. 160(5) of the Act enacted by subs. 38(4) of the Fall Economic Statement Implementation Act, 2022, S.C. 2022, c. 19), signalled that absent this fiction, prior facts taking place when the parties were not at arm’s length should be ignored in determining whether they were in fact dealing at arm’s length at the time of the transfer. I disagree. New enactments cannot be presumed to alter the state of the law or involve a declaration as to the previous state of the law (see Canada v. Oxford Properties Group Inc., 2018 FCA 30, [2018] 6 C.T.C. 1, paras. 46 and 86, citing subsections 45(2) and (3) of the Interpretation Act, R.S.C. 1985, c. I-21; see also Canada v. Remai, 2009 FCA 340, [2009] D.T.C. 5188 [Remai], para. 24), and the binding authorities, including McLarty and Swiss Bank (Ex. Ct.), make it clear that no facts are to be ignored in applying subsection 160(1) as it read before this amendment if they can be shown to have an impact on the relationship at the time of the transfer. It follows that the amendment, as it relates to the precise issue with which we are concerned, can only be read as a measure that confirms the prior state of the law. . Grimstead v. Ontario College of Teachers
In Grimstead v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considers the temporal statutory interpretation issue of retrospectivity:A. Do the 2020 OCTA amendments have retrospective effect?
[37] The appellant submits that the panel erred in giving retrospective effect to the 2020 OCTA amendments by imposing a more severe penalty than the appellant received when he was found guilty of professional conduct in 2009. The appellant relies on case law relating to the presumption against retrospectivity, a rule of statutory interpretation that the appellant says applies in this case.
[38] In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 43, the Supreme Court of Canada described the presumption against retrospectivity as follows:The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction” …. The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act” …. [Citations omitted.] [39] In Tran, at paras. 46-47, the Supreme Court considered its previous decision in Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, in which the court held that “the presumption [against retrospectivity] will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event.” In Tran, the court went to state that “[t]o interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.”
[40] At paras. 49-50, the Supreme Court in Tran further stated as follows:49. The presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.
50. Ordinarily, express language or necessary implication … provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The "public protection" exception [in Brosseau] permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. [Citation omitted.] ....
[43] While there is a presumption against the retrospective or retroactive[2] application of legislative provisions, the presumption is rebutted if the Legislature indicates by express language or necessary implication that the legislation is to have retrospective effect. Where the Legislature clearly provides that a law is to apply retrospectively, the presumption no longer operates and the legislation must be given retrospective effect: Tran, at paras. 43, 49-50. In those circumstances, the Legislature must be taken as having considered the issue of unfairness and determined that the benefits to public protection outweigh any unfairness to persons who are adversely affected. As well, under the “public protection” exception in Brosseau (as indicated above), legislation may have retrospective effect even in the absence of express language or necessary implication “if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event:” Tran, at paras. 47, 50. . Hardick v. College of Chiropractors of Ontario
In Hardick v. College of Chiropractors of Ontario (Div Court, 2023) the Divisional Court states the 'presumption against retrospectivity' [SS note: which is very similar to the municipal 'legal non-conforming' principle]:A. Retrospective Effect
[13] As explained by the Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 43, the presumption against retrospectivity is a rule of statutory interpretation. Its purpose is to protect acquired rights and prevent a change in the law from attaching new prejudicial consequences to a completed transaction. The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act”: Tran, at para. 43, quoting from Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, 1975 CanLII 4 (SCC), at p. 279.
[14] However, the presumption exists to ensure laws will apply retrospectively only where the legislature has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Where the legislature signals by express language or necessary implication that it has turned its mind to the issue of retrospectivity, the presumption does not apply: Tran, at para. 50. . Hardick v. College of Chiropractors of Ontario
In Hardick v. College of Chiropractors of Ontario (Div Court, 2023) the Divisional Court distinguishes retroactive from retrospectivity effect:[40] With respect to the argument that the amendment did not potentially disqualify sitting Council members, there is a distinction between the retroactive and retrospective application of a bylaw. Retrospectivity changes the future legal effect of past events whereas retroactivity changes the legal effect of past events as if the law were different when those events occurred: Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed (Markham: LexisNexis, 2022), at § 25.02 [4] and 25.05 [1]; Gustavson, at p. 279. The fact that Council did not give the Bylaw retroactive effect does not detract from its ability to give the Bylaw retrospective effect. Sitting Council members are in a different position than those running for election. To disqualify them would mean undoing the results of an election ex post facto. Moreover, there is no evidence that any current Council member would have been captured by such a rule. . Dikranian v. Quebec (Attorney General) [VESTED RIGHTS]
In Dikranian v. Quebec (Attorney General) (SCC, 2005) the Supreme Court of Canada considered, in a student loan situation, whether a statutory change which altered interest-free periods, attracted the application of the doctrine of vested rights:4.2 Vested Rights
29 Before considering the question of vested rights, I would like to note that a distinction must be drawn between the principle of vested rights and the principle against retroactivity. This issue is of great importance here. The Attorney General of Quebec submits that the principle of the retroactivity of legislation is not in issue and asks the Court to apply the principle of the retrospectivity of legislation that was recently reiterated in Épiciers Unis Métro‑Richelieu Inc., division “Éconogros” v. Collin, [2004] 3 S.C.R. 257, 2004 SCC 59. However, it should be noted right away that Épiciers Unis dealt with the application of the Implementation Act, ss. 2 and 3 of which indicate that “the recent reform of the Civil Code is based not on the principles established at common law, principles which give great importance to vested rights. Rather, it is a system essentially based on the ideas of the French jurist Paul Roubier, a system which clearly dispenses with the notion of vested rights” (P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 118). This appeal does not concern a dispute resulting from the coming into force of the C.C.Q. We must therefore apply the Interpretation Act, R.S.Q., c. I‑16, which gives effect to the principle of “acquired rights” in s. 12.
4.2.1 Distinctions Between Vested Rights and Retroactivity
30 Vested rights result from the crystallization of a party’s rights and obligations and the possibility of enforcing them in the future. Professor Côté writes that, “[w]ithout being retroactive, a statute can affect vested rights; correspondingly, a statute can have a retroactive effect and yet not interfere with vested rights” (p. 156). In general, it will be purely prospective statutes that will threaten the future exercise of rights that were vested before their commencement: Côté, at p. 137.
31 Although the courts have in the past analysed the same question from the perspective of either the presumption against interference with vested rights or the presumption against retroactive legislation, there remains, as the submissions of the parties in the instant case demonstrate, a clear distinction between these two rules of construction: Venne v. Quebec (Commission de protection du territoire agricole), 1989 CanLII 84 (SCC), [1989] 1 S.C.R. 880, at p. 906; Attorney General of Quebec v. Expropriation Tribunal, 1986 CanLII 13 (SCC), [1986] 1 S.C.R. 732, at pp. 741 and 744; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271, at pp. 279 and 282.
4.2.2 Statement of Principle
32 The principle against interference with vested rights has long been accepted in Canadian law. It is one of the many intentions attributed to Parliament and the provincial legislatures. As E. A. Driedger states in Construction of Statutes (2nd ed. 1983), at p. 183, these presumptionswere designed as protection against interference by the state with the liberty or property of the subject. Hence, it was “presumed”, in the absence of a clear indication in the statute to the contrary, that Parliament did not intend prejudicially to affect the liberty or property of the subject. This had already been accepted by Duff J. in Upper Canada College v. Smith (1920), 1920 CanLII 8 (SCC), 61 S.C.R. 413, at p. 417:. . . speaking generally it would not only be widely inconvenient but “a flagrant violation of natural justice” to deprive people of rights acquired by transactions perfectly valid and regular according to the law of the time. (See also Acme Village School District (Board of Trustees of) v. Steele‑Smith, 1932 CanLII 40 (SCC), [1933] S.C.R. 47, at p. 51; R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 569‑70.)
33 The leading case on this presumption is Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, 1933 CanLII 86 (SCC), [1933] S.C.R. 629, at p. 638, where this Court stated the principle in the following terms:A legislative enactment is not to be read as prejudicially affecting accrued rights, or “an existing status” (Main v. Stark [(1890), 15 App. Cas. 384, at 388]), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a “law of Parliament” (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference. 34 The principle has since been codified in interpretation statutes. The Interpretation Act is no exception:12. The repeal of an act or of regulations made under its authority shall not affect rights acquired . . . and the acquired rights may be exercised . . . notwithstanding such repeal. 4.2.2.1 Rule of Construction
35 In the past, this Court has stressed that the presumption against interference with vested rights could be applied only if the relevant legislation were ambiguous, that is, reasonably susceptible of two constructions (see Gustavson Drilling, at p. 282; Acme Village School District, at p. 51; Venne, at p. 907).
36 This statement must be qualified somewhat in light of this Court’s recent decisions. As Professor Sullivan says, care must be taken not to get caught up in the last vestiges of the literal approach to interpreting legislation:In so far as this language echoes the plain meaning rule, it is misleading. The values embodied in the presumption against interfering with vested rights, namely avoiding unfairness and observing the rule of law, inform interpretation in every case, not just those in which the court purports to find ambiguity. The first effort of the court must be to determine what the legislature intended, and . . . for this purpose it must rely on all the principles of statutory interpretation, including the presumptions. [p. 576] Since the adoption of the modern approach to statutory interpretation, this Court has stated time and time again that the “entire context” of a provision must be considered to determine if the provision is reasonably capable of multiple interpretations (see, for example, Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 29).
4.2.2.2 Criteria for Recognizing Vested Rights
37 Few authors have tried to define the concept of “vested rights”. The appellant cites Professor Côté in support of his arguments. Côté maintains that an individual must meet two criteria to have a vested right: (1) the individual’s legal (juridical) situation must be tangible and concrete rather than general and abstract; and (2) this legal situation must have been sufficiently constituted at the time of the new statute’s commencement (Côté, at pp. 160‑61). This analytical approach was used by, inter alia, the Saskatchewan Court of Appeal in Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 1992 CanLII 2751 (SK CA), 95 D.L.R. (4th) 706, at p. 727.
38 I am satisfied from a review of the case law of this Court and the courts of the other provinces that the analytical framework proposed by the appellant is the correct one.
39 A court cannot therefore find that a vested right exists if the juridical situation under consideration is not tangible, concrete and distinctive. The mere possibility of availing oneself of a specific statute is not a basis for arguing that a vested right exists: Côté, at p. 161. As Dickson J. (as he then was) clearly stated in Gustavson Drilling, at p. 283, the mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued (see also Abbott v. Minister for Lands, [1895] A.C. 425, at p. 431; Attorney General of Quebec, at p. 743; Massey‑Ferguson Finance Co. of Canada v. Kluz, 1973 CanLII 150 (SCC), [1974] S.C.R. 474; Scott, at pp. 727‑28). In other words, the right must be vested in a specific individual.
40 But there is more. The situation must also have materialized (Côté, at p. 163). When does a right become sufficiently concrete? This will vary depending on the juridical situation in question. I will come back to this point later. Suffice it to say for now that, just as the hopes or expectations of a person’s heirs become rights the instant the person dies (see, for example, Marchand v. Duval, [1973] C.A. 635, at p. 637, and art. 625 C.C.Q.), and just as a tort or delict instantaneously gives rise to the right to compensation (see, for example, Holomis v. Dubuc (1974), 1974 CanLII 1254 (BC SC), 56 D.L.R. (3d) 351 (B.C.S.C.); Ishida v. Itterman, 1974 CanLII 1787 (BC SC), [1975] 2 W.W.R. 142 (B.C.S.C.); and arts. 1372 and 1457 C.C.Q.), rights and obligations resulting from a contract are usually created at the same time as the contract itself (see Côté, at p. 163). . Lin v. Weng
In Lin v. Weng (Ont CA, 2022) the Court of Appeal considered whether an Insurance Act amendment applied to facts that occured before the amendment was in force:[25] Before considering whether the motion judge was correct in his conclusion about the temporal application of s. 129.1, it is important to clarify the distinction between the terms “retrospective” and “retroactive” and what exactly is at issue in this case.
[26] In a nutshell, a retroactive law is one that applies a new law to an event that happened in the past and to which the old law applied before the new law was enacted: see Elmer A. Driedger, “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar. Rev. 264, at pp. 268-269; Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007), at p. 254.
[27] In contrast, a retrospective law is one that has an effect for the future on a set of facts that occurred in the past: Driedger, at pp. 268-69; Sullivan 2007, at p. 254. As an example, the amendment in s. 129.1 clearly applies prospectively to events that cause losses in the future under new insurance policies entered into after the date of the amendment. However, for a court to find that the amendment has retrospective effect, it would apply to existing insurance policies entered into before the amendment, but for events that happen in the future.
[28] On the facts of this case, I do not need to resolve whether the legislature intended the amendment to apply only prospectively, that is to future events under policies entered into after the amendment came into force, or also to apply retrospectively to future events under existing insurance policies. In this case, while the insured has used the term “retrospective”, and the motion judge analyzed the issue on that basis, the insured is asking the court to apply the amendment to an existing policy in respect of an event that occurred before the amendment came into force, i.e., to apply it retroactively. Therefore, although the decision under appeal addresses the issue on the basis of the presumption against retrospectivity, and rebuttal of that presumption, the legal issue on the appeal is whether the amendment applies retroactively to the appellant’s claim.
[29] I turn, then, to the rules governing whether legislation has retroactive effect. In interpreting legislation, there is a strong presumption that the legislature does not intend its law to apply retroactively. Indeed, the presumption against retroactivity is more difficult to rebut than the presumption against retrospectivity: Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Scarborough: Carswell, 2011), at pp. 143-44. Normally, where the legislature intends a law to apply retroactively, it will say so either within the formulation of the law, or by having it take effect as of a date in the past. The question for the court is to discern the intention of the legislature: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at paras. 25.51-25.53.
[30] I set out the amendment again here for ease of reference:129.1 (1) If a contract contains a term or condition excluding coverage for loss or damage to property caused by a criminal or intentional act or omission of an insured or any other person, the exclusion applies only to the claim of a person,(a) whose act or omission caused the loss or damage;
(b) who abetted or colluded in the act or omission;
(c) who,
(i) consented to the act or omission, and
(ii) knew or ought to have known that the act or omission would cause the loss or damage; or
(d) who is in a class prescribed by the regulations. [31] In this case, the amendment does not state that it will apply to claims for losses that have already occurred under existing policies, nor did it come into force as of a date in the past. Therefore, the court must answer the following question: is there any other indication, including in the wording of the amendment, that it was the intent of the legislature that s. 129.1 would apply to existing insurance policies for claims arising from losses that occurred before the amendment came into force?
[32] The appellant points to what he says are two indications of Parliament’s intent regarding the temporal application of the amendment. While these two submissions both relate to a request to find retrospectivity, I am addressing them in the context of retroactivity, as that is the correct legal characterization at issue before the court.
[33] First, the appellant submits that because the amendment affects a “claim” by an insured person that remains outstanding at the date of the amendment, the amendment applies in the present, and not retroactively. In such a case, the claim is ongoing until the insurer pays it or successfully contests its obligation to pay. In other words, the appellant argues that “claim” is akin to a characteristic or status, rather than an event that is fixed in time, relying on Driedger, at p. 267: “a statute cannot be said to be retrospective if it is brought into operation by a characteristic or status that arose before it was enacted… it is retrospective if it is brought into operation by a prior event described in the statute.”
[34] The motion judge rejected this submission because the effect of that interpretation would be to remove Aviva’s vested right, “which is not permitted.” I do not agree with this reasoning. If the court were satisfied that the intent of the legislature in using the word “claim” was to have the legislation apply to outstanding claims on the date of the amendment, and not be retroactive or retrospective, then the court would give effect to that intention. The question is whether the word “claim” has the meaning contended for by the appellant.
[35] There is no definition of the word “claim” in the Insurance Act. The word is used in a number of provisions of the Act. Some refer to a claim that is made against an insured by a third party for loss or damage. Some refer to a claim made by an insured against the insurer for indemnity for loss or damage for which the insured is liable to a third party. Others refer to a claim for loss or damage that the insured has suffered. Section 129.1 is an example of the latter: a claim by the insured for indemnity for loss or damage that the insured has suffered.
[36] An insured who suffers a loss that is covered by the policy is entitled to be indemnified for that loss. That entitlement is referred to as a claim. The first definition of “adjuster” in s. 1 of the Act demonstrates that meaning: “‘adjuster’ means a person who, (a) on behalf of an insurer or an insured, for compensation, directly or indirectly solicits the right to negotiate the settlement of or investigate a loss or claim under a contract or a fidelity, surety or guaranty bond issued by an insurer, or investigates, adjusts or settles any such loss or claim” (emphasis added).
[37] In my view, the insured’s claim for indemnity has the same meaning and therefore the same temporal component as the insured’s entitlement to indemnity. While it is true that the insured continues to have the claim and the entitlement until the insurer either pays or successfully refutes the obligation to indemnify, that situation is not dependent on the term “claim”. “Entitlement” and “loss” are synonymous with “claim” in the context of s. 129.1. They merely delineate the right to indemnity under the insurance contract which is affected by the amendment. They do not have a temporal meaning. The relevant point in time for the application of s. 129.1 is the date when the insured became entitled to indemnity from the insurer or had a claim for loss – that is, the date of the loss. When considering the temporal application of s. 129.1, a “claim” is an event, rather than a status.
[38] If the legislature had intended the amendment to apply to entitlements or claims for losses that had already occurred, but for which the insurer had not yet paid the indemnity, i.e., outstanding entitlements or claims, it would have used clear language to so state. It did not do so and therefore the presumption against retroactivity is not rebutted. The use of the term “claim” as opposed to “entitlement” or “loss” does not demonstrate clear legislative intent to apply the amendment to a past loss. All three would have the same meaning if used in s. 129.1.
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