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Statutes and Statutory Interpretation - General

. Rizzo v Rizzo Shoes

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

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.
. R v Ali

In R v Ali (Ont CA, 2019) the Court of Appeal the court stated the following procedure in determining an issue of statutory review in a criminal case:
The Governing Principles

[45] This appeal involves a question of statutory interpretation. Specifically, whether s. 83.2 applies to a person who is at once the principal who commits the indictable offence and the only member of the terrorist group whose interests are advanced by its commission.

[46] The modern principle of statutory interpretation requires that we read the words of the section “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”: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), [2004] 2 S.C.R. 248, at para. 34, citing E.A. Driedger, Construction of Statutes, 2nd ed. (Oxford: Butterworth-Heinemann, 1983), at p. 87. This approach acknowledges the many-sided nature of statutory interpretation and the need to read textual considerations with the legislative intent and established legal norms: Application under s. 83.28 of the Criminal Code (Re), at para. 34. See also, Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at para. 26.

[47] In our interpretation of a legislative provision, such as s. 83.2, we must form an impression of the meaning of its text. But we do not stop there. We must then infer what rules the legislative authority intended to enact. This we do by taking into account the purpose of the provision and all relevant context. This is so regardless of whether we consider the provision to be ambiguous: Ruth Sullivan, Sullivan on the Construction of Statutes (6th ed, 2014), at para. 2.2.

[48] To determine whether a statutory provision applies to a specific factual matrix, we must consider:

i. the meaning of the text of the provision;

ii. the intention of the legislating authority; and

iii. the consistency of the proposed interpretation with established legal norms.

See, Sullivan, at para. 2.3-2.5; 2.8.
. Oakville (Town) v. Clublink Corporation ULC

In Oakville (Town) v. Clublink Corporation ULC (Ont CA, 2019) the Court of Appeal considered an issue of statutory interpretation:
The Modern Approach to Statutory Interpretation

[37] I begin with the overarching principles of statutory interpretation applicable to this appeal. The governing approach to statutory interpretation in Canada is the so called “modern principle” of statutory interpretation. The modern principle, first formulated by Elmer Driedger and adopted as the prevailing approach to statutory interpretation by the Supreme Court of Canada in Rizzo, is as follows:
[T]he 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.
[38] The core teaching of the “modern principle” is that statutory language must always be interpreted purposively and in context. In other words, “statutory interpretation cannot be founded on the wording of legislation alone”: Rizzo, at para. 21. As summarized by Ruth Sullivan in Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 46:
The key point of the principle is … that statutory interpretation cannot be founded on the wording of the legislation alone. The words of the text must be read and analyzed in light of a purposive analysis, a scheme analysis, the larger context in which the legislation was written and operates, and the intention of the legislature, which includes implied intention and the presumptions of legislative intent. In the course of resolving an interpretation problem, an interpreter must also consider the relevance of a wide range of rules, principles and maxims.
[39] The Supreme Court’s decision in Rizzo is illustrative in this regard. In that case, the issue was whether an employer petitioned into bankruptcy was required to pay employees termination pay and severance pay under ss. 40 and 40a of the Employment Standards Act, R.S.O. 1980, c. 137, respectively. The Court of Appeal held that the plain meaning of those provisions indicated that termination pay and severance pay were payable only when the employer terminates the employment. In a bankruptcy, an employee’s employment is terminated not by the employer, but by the operation of law. As such, no termination or severance pay was required: Rizzo, at paras. 18-19.

[40] Iacobucci J., writing for a unanimous Supreme Court, reached a different conclusion. He accepted that “at first blush” the conclusion that an employee is terminated by an employer upon bankruptcy “did not fit comfortably” with the plain meaning of the impugned statutory provisions, but found that the Court of Appeal’s analysis was “incomplete”: Rizzo, at para. 20. Rather, it was necessary to look to the purpose of the impugned provisions, the purpose of the Act, the scheme of the Act, its legislative history and the consequences of each plausible interpretation. After engaging in that analysis, Iacobucci J. concluded that termination and severance pay were payable upon an employer’s bankruptcy.

[41] As Rizzo indicates, the modern principle embodies a contextual approach to statutory interpretation. It instructs that a purely textual approach – focussing only on the literal or plain meaning of a statutory provision – may fail to adequately capture the legislature’s intended meaning. This point is made in Bell ExpressVu v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, at paras. 26-27, another leading Supreme Court case on statutory interpretation:
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings….

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”.
[42] Similarly, in his text Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) at p. 46, Pierre-André Côte describes the modern principle as embodying “the rise of contextual interpretation” with a corresponding shift away from textual literalism and plain meaning:
Statutory interpretation requires the interpreter to weigh a series of factors before establishing the true, or at least best, meaning. The range of factors to be considered has been elastic, and has known historical expansion and compression. Currently, the list of mandatory or recommended factors is extensive.

This extension is an outgrowth of the rise of contextual interpretation, an approach increasingly favored by both doctrine and the case law. It is now recognized that it is impossible to determine the meaning of words in the absence of context. Today, it is fair to say that the Plain Meaning Rule, which restricts the interpreter to a consideration of the literal meaning of a clear text, has fallen into disrepute.

The urtext of broader approach to interpretive authority is … the modern principle of statutory interpretation….

It would be unreasonable to suppose that Driedger’s principle expresses, in and of itself, every dimension of the Canadian interpretive practice. It is nonetheless true that it has materially contributed to the overthrow of the Plain Meaning Rule and the promotion of a contextual approach to interpretation that draws on a wide range of factors and is, in particular, open to the consideration of the objectives of the provisions and statues under examination.
[43] It is important to appreciate the role that the “ordinary meaning” of statutory text plays in this interpretative framework. In this regard, “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” and “the natural meaning which appears when the provision is simply read through”: Pharmascience Inc. v. Binet, 2006 SCC 48 (CanLII), [2006] 2 S.C.R. 513, at para. 30; McLean v. British Columbia (Securities Commission), 2013 SCC 67 (CanLII), [2013] 3 S.C.R. 895, at para. 43. So understood, “ordinary meaning” refers to the reader’s understanding of the statutory text when read in its immediate context: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at para. 3.9.

[44] The “ordinary meaning” is presumed to be the meaning intended by the legislature: McLean, at para. 43; Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70 (CanLII), 431 D.L.R. (4th) 318, at para. 40, citing Sullivan on the Construction of Statutes, at para. 3.6. But “ordinary meaning” is not determinative; it is only one aspect of the modern approach. This is because “[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity … is a logical result of the modern approach to statutory interpretation”: McLean, at para. 43, citing Montreal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), [2005] 3 S.C.R. 141, at para. 10. Thus, even when a statutory provision appears to have a settled meaning on first reading, the court is “obliged to look at other indicators of legislative meaning as part of their work of interpretation”: McLean, at para. 43.

[45] A textual approach focussing on the “ordinary meaning” of a particular statutory term or phrase will also be less helpful when the impugned term or phrase admits of more than one possible understanding in common usage. The “ordinary meaning” of a particular statutory term may itself be contested. This reality was recognized in Binet, at para. 32, where LeBel J. said:
Nevertheless, it has to be admitted that textual interpretation has its limits. Before this Court, the parties submitted numerous definitions of the French word “on” taken from dictionaries, grammar books and other encyclopedic sources, and countless examples drawn from statutes in which the legislature used similar or different wordings to indicate the inclusion of all persons or of a specific group of individuals. That is why this Court now considers it important, even when a provision seems clear and conclusive, to nevertheless review the overall context of the provision. [Citations omitted.]
For this reason, the modern principle instructs that the words of a statute must be read in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
. Tyendinaga Mohawk Council

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.

In Rooney v. ArcelorMittal S.A. (Ont CA, 2016) 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

In R v Wookey (Ont CA, 2016) 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.
. Austin v. Bell Canada

In Austin v. Bell Canada (Ont CA, 2020) the Court of Appeal considers how the issue of meaninglessness is dealt with in statutory interpretation:
[26] It is not apparent what “partly meaningless” means. A contractual provision either has a meaning or it does not. Courts will strive to give all provisions in a contract meaning and to avoid an interpretation of one provision that would render another provision meaningless or redundant. The redundancy rule relied upon by the motion judge was explained by this court in Scanlon v. Castlepoint Development Corp. (1992), O.R. (3d) 744, at para. 88 (leave to appeal refused, [1993] S.C.C.A. No. 62).
To the extent that it is possible to do so, [a contact] should be construed as a whole and effect should be given to all of its provisions. The provisions should be read, not as standing alone, but in light of the agreement as a whole and the other provisions thereof: Hillis Oil & Sales Ltd. v. Wynn's Canada Ltd., 1986 CanLII 44 (SCC), [1986] 1 S.C.R. 57 at p. 66, 25 D.L.R. (4th) 649 at p. 655. The court should strive to give meaning to the agreement and "reject an interpretation that would render one of its terms ineffective": National Trust Co. v. Mead, 1990 CanLII 73 (SCC), [1990] 2 S.C.R. 410 at p. 425, 71 D.L.R. (4th) 488 at p. 499.


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