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Statutory Interpretation - Extrinsic and Intrinsic Evidence

. Martin v. Wright Medical Technology Canada Ltd.

In Martin v. Wright Medical Technology Canada Ltd. (Ont CA, 2023) the Court of Appeal considers extrinsic legislative history, here a Law Reform Commission report in the context of resolving a statutory interpretation issue:
(ii) Context and purpose

[19] Legislative history can inform the court’s appreciation of the legislative intention in enacting the changes brought about by legislative amendments: Valilov, at paras. 167, 180, and 195.
. Prairie Pride Natural Foods Ltd. v. Canada (Attorney General)

In Prairie Pride Natural Foods Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a administrative monetary penalty (issued under the Agriculture and Agri-Food Administrative Monetary Penalties Act) that had been appealed unsuccessfully to the Canada Agricultural Review Tribunal.

In the course of it's analysis the court considered a Regulatory Impact Analysis Statements (RIAS) - issued under the authority of the Impact Assessment Act - which they appealed to as evidence of the statutory interpretation of a specific federal provision:
[28] With respect to the purpose of subsection 14(3), I have reviewed the Regulatory Impact Analysis Statements (RIAS) concerning the relevant provision, in its current and earlier versions. The original version of subsection 14(3) had no fixed deadline and the RIAS did not discuss the purpose of the provision. Subsection 14(3) was amended in 2016 to provide for a fixed deadline. The relevant RIAS related to a number of amendments, including subsection 14(3), that were made to improve clarity and consistency of the Regulations. Subsection 14(3) was amended again in 2020 with the effect of slightly extending the deadline. The RIAS for this amendment stated that it was for clarity and consistency.

[29] Since the RIAS for the original version does not state the purpose of subsection 14(3), the RIAS’ as a whole may not provide much assistance in determining the purpose of the provision.

[30] I conclude that these considerations concerning the text, context and purpose of subsection 14(3) may impact the Decision and that if they had been considered by the Tribunal, it may have reached a different result. Accordingly, in accordance with the teaching in Vavilov, the Decision is unreasonable insofar as the Tribunal failed to take these considerations into account.
. Telus Communications Inc. v. Federation of Canadian Municipalities

In Telus Communications Inc. v. Federation of Canadian Municipalities (Fed CA, 2023) the Federal Court of Appeal cautioned against the use of extrinsic policy evidence in statutory interpretation:
(3) The policy objectives of Parliament

[101] A good starting point for any discussion about the impact of policy objectives on the interpretation of statutes is the following caveat by the Supreme Court in Barrie. While recognizing that policy objectives may "“help elucidate the purpose of the statutory regime as a whole and will often be relevant to the CRTC’s decision making”", the highest Court cautioned against over-reliance on this external source:
The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent. In my view, the CRTC relied on policy objectives to set aside Parliament’s discernable intent as revealed by the plain meaning of s. 43(5), s. 43 generally and the Act as a whole. In effect, the CRTC treated these objectives as power-conferring provisions. This was a mistake.

Barrie at para. 42
. Reference re Greenhouse Gas Pollution Pricing Act

In Reference re Greenhouse Gas Pollution Pricing Act (SCC, 2021) the Supreme Court of Canada considers some principles of evidence applicable to statutory interpretation (intrinsic and extrinsic evidence):
(a) Intrinsic Evidence

[58] This Court has frequently used a statute’s title as a tool for the purposes of characterization: Re: Exported Natural Gas Tax, 1982 CanLII 189 (SCC), [1982] 1 S.C.R. 1004, at p. 1077; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 1004; Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 21. However, a statute’s title is not determinative in the pith and substance analysis: Re: Anti-Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, at p. 451. In the case at bar, the statute is titled “Greenhouse Gas Pollution Pricing Act”. Its long title is “An Act to mitigate climate change through the pan-Canadian application of pricing mechanisms to a broad set of greenhouse gas emission sources and to make consequential amendments to other Acts”. Both of these titles confirm that the purpose of the GGPPA is more precise than the regulation of GHG emissions. As the long title makes clear, the true subject matter of the GGPPA is not just “to mitigate climate change”, but to do so “through the pan-Canadian application of pricing mechanisms to a broad set of greenhouse gas emission sources”. The short title also makes it clear that the GGPPA is concerned not simply with regulating GHG emissions, but with pricing them, as the statute is titled the “Greenhouse Gas Pollution Pricing Act”. Just as Lamer C.J. found in Swain, it is in the instant case clear even from the title of the GGPPA that its main thrust is national GHG pricing, not, more broadly, the reduction of GHG emissions.

[59] Likewise, the preamble of the GGPPA confirms that its subject matter is national GHG pricing. In general, preambles are useful in constitutional litigation in order to illustrate the “mischief” the legislation is designed to cure and the goals Parliament sought to achieve: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at § 14.25; P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. (loose-leaf)), vol. 1, at pp. 15-14 to 15-15. Although a preamble is not conclusive or determinative, it can be a useful tool in interpreting the purpose of a statute or a provision.

[60] It is clear from reading the preamble as a whole that the focus of the GGPPA is on national GHG pricing. The preamble begins with a review of the contribution of GHG emissions to global climate change, of the impact of climate change on — and the risks it poses to — Canada and Canadians (at paras. 1-5), and of the international commitments made by Canada in the UNFCCC and the Paris Agreement to reduce GHG emissions (paras. 6-8). It then focuses on establishing a minimum national standards GHG pricing scheme. It identifies GHG pricing as “a core element” of the Pan-Canadian Framework (at para. 10), and recognizes that climate change requires immediate collective action to promote behavioural change which leads to increased energy efficiency (paras. 9 and 11). After that, pricing mechanisms are commented on at length (at paras. 12-16): in particular, it is noted that some provinces are developing or have implemented GHG pricing systems (at para. 14), but that the absence of such systems or a lack of stringency in some provincial GHG pricing systems could contribute to significant harm to the environment and to human health (para. 15). The preamble concludes with a statement that a national GHG pricing scheme is accordingly necessary in order to ensure that, taking provincial pricing systems into account, “greenhouse gas emissions pricing applies broadly in Canada”: para. 16.

[61] Furthermore, the “mischief” the GGPPA is intended to address is clearly identified in the preamble: the profound nationwide harm associated with a purely intraprovincial approach to regulating GHG emissions. In Firearms, the Court stated that the mischief approach — one in which a court considers the problem a statute is intended to address — is one way to determine the purpose of impugned legislation: para. 21. In the instant case, the preamble shows that the law is intended to address the “significant deleterious effects on the environment, including its biological diversity, on human health and safety and on economic prosperity” that could result from “the absence of greenhouse gas emissions pricing in some provinces and a lack of stringency in some provincial greenhouse gas emissions pricing systems”: para. 15. In Parliament’s eyes, the relevant mischief is not GHG emissions generally, but rather the effects of the failure of some provinces to implement GHG pricing systems or to implement sufficiently stringent pricing systems, and the consequential failure to reduce GHG emissions across Canada. To address this mischief, the GGPPA establishes minimum national standards for GHG pricing that apply across Canada, setting a GHG pricing “floor” across the country.

[62] In considering extrinsic evidence, a court may consider the statute’s legislative history — the events leading up to its enactment, for example, as well as government policy papers and legislative debates — in order to determine what the legislative purpose is: Hogg, at pp. 15-14 to 15-15; Kitkatla, at para. 53. In the case at bar, the extrinsic evidence confirms that the main thrust of the GGPPA is establishing minimum national standards of GHG price stringency to reduce GHG emissions.


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Last modified: 03-01-24
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