Rarotonga, 2010

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Statutes and Statutory Interpretation - 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.

. Fleming v. Massey

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.


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