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Statutory Interpretation - "Includes"

. Toronto (City) v. Craft Kingsmen Rail Corp.

In Toronto (City) v. Craft Kingsmen Rail Corp. (Div Court, 2023) the Divisional Court considers the statutory interpretation of "includes", here in a definition of real property:
F. Inclusive Definition

[92] The Application Judge accepted, at para. 27, that the definition of “land” in s. 1 of the Assessment Act was an inclusive definition but concluded that what was included was limited by the examples listed in subsections (a) to (e) to something affixed to the ground. He stated, at para. 41:
Everything about the definitions in s. 1, as broadened by the SCC, speaks to the relationship of something else with the ground. The broadened part of the definition is the inclusion of chattels that are on the land with some permanence but are not fixtures.
[93] This part of his analysis was, however, based on his premise that real property at common law did not include the air above the land, and, therefore, he concluded, the examples listed in s. 1 could not be used to include something that had no connection to the ground. If we reject the premise, however, the examples listed in (a) to (e) cannot be used to narrow what was already included in the common law.

[94] The word “includes” is generally used to indicate that what follows are examples rather than an exhaustive list: Sullivan, at §4.04. This is confirmed by reading s. 1 of the Assessment Act as a whole. Section 1 of the Act lists 23 definitions. Nineteen of those definitions use the word “means”, which “generally precedes a definition to be construed as exhaustive”: Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865, at para. 46. Only four of the definitions in the Act use the word “includes.” In this context “includes” cannot be interpreted as limiting the definition to the itemized list.

[95] The Supreme Court of Canada and the Court of Appeal have both confirmed that the examples given in the definition were intended to expand on the common law definition. These cases do not support the proposition that there was any intention to subtract from or limit the common law definition of land or real property. See also Owners, Strata Plan para. 39.





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Last modified: 29-01-23
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