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Statutory Interpretation - 'First Impressions'

. Yarco Developments Inc. v. Home Construction Regulatory Authority (Registrar)

In Yarco Developments Inc. v. Home Construction Regulatory Authority (Registrar) (Div Court, 2023) the Divisional Court considered (and allowed) an appeal reversing an earlier LAT decision granting the respondent a 'New Home Construction Licensing Act, 2017' license to build and sell new homes. In these quotes the court cautions against textual 'initial impressions' statutory interpretations:
[39] The Adjudicator justified his textual approach by citing Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, at para. 24, for the proposition that “it makes sense to start by examining the ordinary meaning or meanings of the words being interpreted”. As the Court of Appeal emphasized at paras. 23 to 25 of Blue Star, however, discerning the ordinary meaning of the words in a text is only the beginning of the interpretive exercise. Meaningful statutory interpretation requires an examination of not only the language of a provision, but its context and the purpose of the legislation or overall statutory scheme.

[40] The Supreme Court has repeatedly warned that failing to test an initial impression of meaning based on isolated language in statutory text may lead an adjudicator to overlook latent ambiguity, writing at para. 23 of La Presse that:
[T]he 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).
[41] The hasty adoption of a plausible interpretation based on the perceived plain meaning of a text may lead to a plausible but inferior reading, inconsistent with true legislative intent: Vavilov, at para. 121.
. Manitoba Métis Federation Inc. v. Canada (Energy Regulator)

In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. Here, the court considers basics of statutory interpretation, particularly regarding 'first impressions':
[118] The central objective in statutory interpretation is to “determine the intent of the legislator having regard to the text, its context, and other indicators of legislative purpose” (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 40 [Canada Trustco]). According to the modern approach to the interpretation of statutes, statutes must “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” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21 (SCC), citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87). In Canada Trustco, at paragraph 10, the Supreme Court asserted that “[t]he interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole.”

[119] Some years later, the Supreme Court of Canada clarified that, although the ordinary meaning is presumed to be the one intended by the legislature, courts are obliged to look at other indicators of legislative meaning as part of the work of interpretation even where there is no patent ambiguity in the provision because the context might reveal a latent ambiguity (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 43 [McLean]). That is, even where the ordinary meaning is, on first impression, obvious, courts are to “dig deeper” into the context to determine its authentic meaning (McLean at para. 44). Here, that context includes the legal and regulatory framework of the Commission and the proceedings before it.
. Minas v. Adler

In Minas v. Adler (Div Court, 2022) the Divisional Court states an aspect of the statutory interpretation doctrine, the 'first impression' interpretation:
[40] The Court of Appeal for Ontario recently reiterated the approach to be taken when engaging in statutory interpretation in R. v. Walsh, 2021 ONCA 43 at paras. 59 and 60:
It is trite law that the modern approach to statutory interpretation requires that "the words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

The starting point is to determine the ordinary meaning of the text: R. v. Wookey, [2016] O.J. No. 4158, 2016 ONCA 611, 351 O.A.C. 14, at para. 24. At para. 25 of Wookey, quoting from Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, at para. 30, and Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, [1993] S.C.J. No. 114, at p. 735 S.C.R., this court states that 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 is "the natural meaning which appears when the provision is simply read through". In other words, the "plain" or "ordinary" meaning of a word is not dictated by its dictionary meaning nor is it frozen in time.


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Last modified: 10-01-24
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