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Statutory Interpretation - Ambiguity

. Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers

In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here where the successful JR applicant argued that immigration inadmissibility [under IRPA, s.34(1)(a) and (f) - 'Inadmissibility - Security'] required that the applicant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage "contrary to Canada’s interests", and that such espionage have a Canadian nexus.

Here the court considers 'ambiguity' in statutory interpretation:
[84] Where the words of a statutory provision are precise and unequivocal, the ordinary meaning of the words will play a dominant role in the interpretive process: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10. Where, however, words in a statutory provision are capable of supporting more than one reasonable meaning, the ordinary meaning of the words plays a lesser role in the statutory interpretation analysis.
. Sapershteyn et al v. 1821317 Ontario Limited et al

In Sapershteyn et al v. 1821317 Ontario Limited et al (Div Court, 2023) the Divisional Court considered a recent SCC statutory interpretation case on ambiguity, La Presse v Quebec (SS, 2023):
x Analysis

[20] It is not contested that in interpreting legislation the modern approach governs. The Board correctly utilized the modern approach as was laid in Bell ExpressVu Ltd. Partnership v. Rex[16]. In Bell ExpressVu, the Supreme Court of Canada adopted Elmer Driedger’s formulation of the approach: “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.”[17]

[21] I do note that after the decision of the Board, the Supreme Court of Canada reviewed the law of statutory interpretation in La Presse inc. v. Quebec[18] in particular the confusion on what is meant by the formulation of the approach of Driedger. The Court stated:
[22] It is well established that, under the modern approach to statutory interpretation, “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 2023 SCC 22 (CanLII) of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Confusion as to what this might entail in practice endures, despite the apparent simplicity of Driedger’s influential words. For the sake of clarity, I will restate two principles that seem to be at the heart of this confusion.

[23] First, the plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). The apparent clarity of the words taken separately does not suffice because they “may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10).

[24] Second, a provision is only “ambiguous” in the sense contemplated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, if its words can reasonably be interpreted in more than one way after (emphasis in original) due consideration of the context in which they appear and of the purpose of the provision (paras. 29-30). This is to say that there is a “real” ambiguity — one that calls for the use of external interpretive aids like the principle of strict construction of penal laws or the presumption of conformity with the Canadian Charter of Rights and Freedoms — only if differing readings of the same provision cannot be decisively resolved through the contextual and purposive approach set out by Driedger (ibid.).
[22] With these principles in mind, while I disagree with the Board’s characterization of the purpose of the section, the Board did not err in its interpretation of the meaning of the provision.

[23] In my view, there is no ambiguity in the meaning of s. 135.1. The purpose of the section is clear, it is a response to Price and to limit the availability to tenants to seek and obtain payment of illegal rent charged. The legislature, in its wisdom, determined that tenants cannot seek retroactive payment of illegal rent charged after one year and in the cases of an application brought before the legislative change, up to the date the change came into affect, July 21, 2020.

[24] It could be taken that the legislature was well aware that a fixed date will make it difficult if not impossible for some tenants to have their application finally determined by July 21, 2020. With the indication of a fixed date, it can be taken that the legislature intended that fixed date with no exceptions.

[25] Consequently, in my view, the Board’s characterization of the legislative purpose is not supported by the clear wording and grammar of the section. It is my view that the legislature exactly intended to deprive tenants of their right to recovery of illegal rents charged if there is no final determination by July 21, 2020.

[26] However, that does not mean the Board committed an error of law in its interpretation of the meaning of the provision. I do agree with the Board’s interpretation of “final determination,” that is, all issues arising from the application must be finally determined by July 21, 2020. This does not mean, as is the practice of the Board, that issues may be finally determined at different times during the application process. But as the Board found in this matter, all issues must be finally determined by July 21, 2020. Accordingly, I do not find that the Board erred in its interpretation of “finally determined by the Board.”
. La Presse inc. v. Quebec

In La Presse inc. v. Quebec (SCC, 2023) the Supreme Court of Canada reviews principles of statutory interpretation, including the role of 'ambiguity':
A. Principles of Statutory Interpretation

[22] It is well established that, under the modern approach to statutory interpretation, “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 (2nd ed. 1983), at p. 87). Confusion as to what this might entail in practice endures, despite the apparent simplicity of Driedger’s influential words. For the sake of clarity, I will restate two principles that seem to be at the heart of this confusion.

[23] First, the plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). The apparent clarity of the words taken separately does not suffice because they “may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10).

[24] Second, a provision is only “ambiguous” in the sense contemplated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision (paras. 29-30). This is to say that there is a “real” ambiguity — one that calls for the use of external interpretive aids like the principle of strict construction of penal laws or the presumption of conformity with the Canadian Charter of Rights and Freedoms — only if differing readings of the same provision cannot be decisively resolved through the contextual and purposive approach set out by Driedger (ibid.).
. Mohr v. National Hockey League

In Mohr v. National Hockey League (Fed CA, 2022) the Federal Court of Appeal stated principles of statutory interpretation, particularly relating to ambiguity:
[13] A statute is to be read in its entire context, in its grammatical and ordinary sense, harmonious with the scheme and object of the statute. Sometimes legislative history can shed light on the matter. When the words of a statute are unequivocal, the ordinary meaning plays a dominant role in the interpretative process (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150 at para. 88).

[14] The Court’s task is to discern the meaning of the words used by Parliament when it chose to enact its policy preferences. There is no room for the Court to inject its own policy preferences into the analysis. In this case, it is not for this Court to say whether section 48 is or is not a good thing. Our task is just to discern what Parliament chose to enact (TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144).

....

Ambiguity and statutory interpretation

[69] Sections 45 and 48 are dual provisions – they give rise to both civil remedies and criminal prosecutions. The fact that they may be enforced criminally was a factor in the Federal Court’s interpretation:
To the extent that the words in subsection 45(1) might somehow be said to permit a broader interpretation that would bring within its scope the sorts of agreements alleged in the Amended Statement of Claim, the penal nature of that provision would entitle the defendants to the benefit of any ambiguity: R v McLaughlin, 1980 CanLII 212 (SCC), [1980] 2 SCR 331 at 335; R v McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686 at 702 and 705.

(Reasons at para. 47)



"To the extent that there is any ambiguity in section 48, which is a penal provision, the Responding Defendants are entitled to the benefit of their narrower interpretation: see paragraph 47 above".

(Reasons at paras. 85 and 139)
[70] There is no presumption or rule of interpretation that the benefit of the doubt on a question of statutory interpretation goes to the defendant.

[71] The principle of strict construction of penal statutes exists as a subsidiary interpretive device applicable only where there is a finding of a genuine ambiguity as to the meaning of a provision (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 28 [Bell ExpressVu]).

[72] A genuine ambiguity arises only where there are two equally plausible interpretations to choose between following the interpretation exercise. A difficulty of interpretation is not necessarily an ambiguity (Bell ExpressVu at paras. 54-55). A restrictive interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of interpretation. But it is a principle of last resort that does not supersede a purposive and contextual approach to interpretation.

[73] As Professor Sullivan explains, the strict constructionist approach to the interpretation of penal statutes developed in the eighteenth century when criminal law sanctions were severe and invariably triggered incarceration. But by the 1990s that presumption began to erode to the point where it is engaged only in the limited circumstances which I have described (R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26 at para. 38 citing R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 472-74; R. v. Big River First Nation, 2019 SKCA 117, 28 C.E.L.R. (4th) 218).

[74] In the absence of a finding of a true ambiguity, the principle of strict construction ought not to have been invoked. For the reasons I have explained, there is no ambiguity in section 45.
. Dominion of Canada General Insurance Company v. Ridi

In Dominion of Canada General Insurance Company v. Ridi (Ont CA, 2022) the Court of Appeal considers ambiguity in statutory interpretation:
[34] The appellant claims the wording in s. 19 of the SABS is ambiguous and does not explicitly refer to HST. He further claims that, as the SABS is consumer protection regulation: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at paras. 42-45, the ambiguity should be resolved in his favour such that HST payable on attendant care benefits should not be included in calculating the maximum amount payable.

[35] In Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras. 29-30, the Supreme Court defined “ambiguity” as follows:
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”.

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). [Underline emphasis added.]
[36] A provision is not “ambiguous” simply because it is difficult to interpret or causes confusion. To be “ambiguous”, there must be two or more plausible interpretations.

[37] In deciding whether the words in s. 19 are subject to two plausible interpretations and therefore ambiguous, the words regarding payment for attendant care benefits must be read in the context of the SABS regulation as a whole: Bell ExpressVu Ltd. Partnership, at para. 29.
. Stonehouse Group Inc. v. Ontario (Minister of Finance)

In Stonehouse Group Inc. v. Ontario (Minister of Finance) (Ont CA, 2021) the Court of Appeal clarified a new (from 2006) tax statutory interpretation approach:
[19] As was observed in Placer Dome [Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715], at para. 22, “where the words of a statute give rise to more than one reasonable interpretation, the ordinary meaning of words will play a lesser role, and greater recourse to the context and purpose of the Act may be necessary”. It is clear from the argument before us that the words used in these sections, especially s. 79(7), give rise to more than one reasonable interpretation.
. R v Boyce

In R v Boyce (Ont CA, 2019) the Court of Appeal defines 'ambiguity' to attract external statutory interpretation aids (other rules beside the basic Rizzo rule):
[18] An ambiguity, in the relevant sense, means that the words of the provision are reasonably capable of bearing more than one meaning. The Supreme Court has cautioned that “one must consider the ‘entire context’ of a provision before one can determine if it is reasonably capable of multiple interpretations” and that “‘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’ … to which I would add, ‘including other principles of interpretation’.”: Bell ExpressVu, at para. 29.


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Last modified: 19-04-24
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