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Statutory Interpretation - Modern Principle (2). BNSF Railway Company v. Greater Vancouver Water District
In BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal [under the Canada Transportation Act, s.41(1)], here from a CTA decision that "found the rerouting works suitable and authorized the District to construct and maintain them at the District’s cost".
Here the court considered the 'modern principle' (text, context and purpose) of statutory interpretation, hinting as to the primacy of the 'text':(3) Principles of Statutory Interpretation
[55] As a matter of statutory interpretation, the words of an Act 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 [Rizzo], citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983); Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10 [Canada Trustco]; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para. 23 [Quebec].
[56] The Supreme Court of Canada has recently reminded us that legislation must "“be given a large and liberal interpretation that will ensure the attainment of its object and the carrying out of its provisions according to their true intent, meaning and spirit”": Quebec at para. 24 in reference to Interpretation Act, C.Q.L.R., c. I‑16, s. 41; see also Interpretation Act, R.S.C. 1985, c. I-21, s. 12.
[57] Thus, the modern principle of statutory interpretation asks us to examine the text, context and purpose of the legislation to discern its meaning. The text, which is the starting point in any interpretive exercise, always must be given close attention: Quebec at para. 24.
[58] However, the relative effects of the ordinary meaning, context and purpose in the interpretive process vary. Where the words of a provision are precise and unequivocal, their ordinary meaning plays a dominant role; where the words are capable of more than one reasonable meaning, the ordinary meaning plays a lesser role: Canada Trustco at para. 10.
[59] In Vavilov, the Supreme Court explained why it adopted this approach to statutory interpretation:[118] This Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: [R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014)], at pp. 7-8. ...
And, more recently, "“the goal of the interpretive exercise is to find harmony between the words of the statute and the intended objective”": R. v. Breault, 2023 SCC 9 at para. 26, citing MediaQMI inc. v. Kamel, 2021 SCC 23 at para. 39; Quebec at para. 24. [60] Thus, the fundamental objective of statutory interpretation is to determine what Parliament meant. . Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A [text]
In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A (SCC, 2024) the Supreme Court of Canada considered modern statutory interpretation, here the central role of statutory text:[24] In this case, it is important to highlight a few principles that guide the interpretation of s. 91 para. 4 of the YPA. First, the YPA must be given a large and liberal interpretation that will ensure the attainment of its object and the carrying out of its provisions according to their true intent, meaning and spirit (see Interpretation Act, CQLR, c. I‑16, s. 41; Protection de la jeunesse – 123979, at para. 21). However, just as the text must be considered in light of the context and object, the object of a statute and that of a provision must be considered with close attention always being paid to the text of the statute, which remains the anchor of the interpretive exercise. The text specifies, among other things, the means chosen by the legislature to achieve its purposes. These means “may disclose qualifications to primary purposes, and this is why the text remains the focus of interpretation” (M. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022), 59 Alta. L. Rev. 919, at p. 927; see also pp. 930‑31). In other words, they may “tell an interpreter just how far a legislature wanted to go in achieving some more abstract goal” (p. 927). As this Court recently noted, an interpreter must “interpret the ‘text through which the legislature seeks to achieve [its] objective’, because ‘the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective . . .’” (R. v. Breault, 2023 SCC 9, at para. 26, quoting MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39; see also Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 10).
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[28] The starting point in any interpretive exercise is the text of the provision. In the absence of statutory definitions, what should be focused on is the grammatical and ordinary meaning of the text, that is, “the natural meaning” that appears when the provision is simply read through as a whole (Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735, quoted in R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 3.02[1]; see also R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 34). ... . Demikon Construction Ltd. v. Oakleigh Holdings Inc.
In Demikon Construction Ltd. v. Oakleigh Holdings Inc. (Div Court, 2024) the Ontario Divisional Court allowed a Construction Act appeal, here against an order which reduced the required amount of posted lien bond in order to vacate "a claim for a construction lien on the title of the project land".
The court cites authority for the modern principle of statutory interpretation:[35] In Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at para. 23, after stating that principle, the Court of Appeal continued:This approach to statutory interpretation -- sometimes referred to as the textual, contextual or purposive approach -- requires an examination of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found. . R. v. Guerrier
In R. v. Guerrier (Ont CA, 2024) the Ontario Court of Appeal considered application of the 'text, context and purpose' ('modern') statutory interpretation doctrine:[21] The dominant approach to statutory interpretation was summarized by Driedger, who labelled it the modern or orthodox principle. That principle was described by Iacobucci and Major JJ. in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at para. 77:The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). [22] The modern approach has been further distilled to the useful shorthand of “text, context, and purpose”: see, for example, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 69.
[23] As I elaborated in R. v. Walsh, 2021 ONCA 43, 154 O.R. (3d) 263:[139] There is no sequential ordering of the modern principle factors, beyond beginning with the text of the statute to be interpreted. The factors are closely related and need not be addressed separately in every case: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31. Their unity is in serving the same inquiry: what can the interpreter ascertain about Parliament's intention? What changes to the rights and obligations of persons did Parliament intend through the legislation enacted?
[140] As Driedger explains, at pp. 2 and 105, the first step in discerning what Parliament intended is to consider the words it used in the context it used them, giving those words their grammatical and ordinary meaning: see also Sullivan, at §3.7; Hutchison, at pp. 46-47. Absent an ambiguity, which requires the interpreter to distinguish among multiple senses of the same word, the text will normally dominate interpretation, although it may not always be sufficient: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Reading the words of a statute in the context of the legislative scheme as a whole can help with understanding parliamentary intent, as can considering what it is that Parliament intended to achieve through the statute: Rizzo & Rizzo Shoes Ltd. (Re) 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. . R. v. Archambault
In R. v. Archambault (SCC, 2024) the Supreme Court of Canada (from two judges, the largest single judgment in the majority) dismissed a Crown criminal appeal, here where it "raises the question of the temporal application of a legislative amendment" (here regarding entitlement to a preliminary inquiry).
Here the court touches on the basics of statutory interpretation (in 2024):[22] This appeal requires this Court to interpret a new legislative provision and to determine how it applies temporally. Both in matters of transitional law and in statutory interpretation generally, [translation] “the legislative intent is paramount” (P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at No. 457; see also R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221, at p. 235). Our role is therefore limited to discerning the true legislative intent by reading the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the legislation (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). . R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court canvasses current principles of statutory interpretation in this context:A. Governing Principles of Statutory Interpretation
[31] Determining whether the Criminal Code permits a discretionary driving prohibition when there has been a conviction for criminal negligence causing death or bodily harm requires the Court to interpret s. 320.24(4) by employing longstanding principles of statutory interpretation.
[32] Words of a statute 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” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). While it is a proper starting point, the ordinary meaning of text is not determinative (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 3.01[3]). Statutory interpretation is incomplete without considering context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 43; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10; R. v. Downes, 2023 SCC 6, at paras. 24-25; Sullivan, at § 2.01[4]).
[33] In the analysis that follows, text, context, and legislative purpose will each be considered in a separate section, but they are not intended to be watertight compartments. Statutory interpretation factors are “closely related and interdependent” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31). Other principles of statutory interpretation also apply and will be referenced where applicable.
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(a) The Criminal Negligence Offences Are Not Enumerated in Section 320.24(4)
[35] Section 320.24(4) expressly enumerates 12 offences for which a discretionary driving prohibition is available and authorized. On its face, it establishes a closed list. In interpreting s. 320.24(4) to determine whether a driving prohibition can be imposed where there has been a conviction for a criminal negligence offence, it is very significant that neither s. 220 (criminal negligence causing death) nor s. 221 (criminal negligence causing bodily harm) are expressly included on the list of offences that can attract that punishment. In my view, the maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”) is of interpretive significance here. Sullivan explains that an “implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly” (§ 8.09[1]; see also Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, at para. 59; Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114). Where express reference is expected, the court can infer that the failure to mention something is the result of a deliberate decision to exclude it.
[36] A driving prohibition is a punishment (see R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38). Parliament’s usual practice is to specify available punishments expressly. Within Part VIII.1 of the Criminal Code, provisions authorizing punishment — whether fines, imprisonment, or driving prohibitions — expressly list the offences to which those punishments directly apply (see ss. 320.19, 320.2, 320.21 and 320.24). The same is true in other parts of the Criminal Code, where the usual drafting practice is to either specify the punishment to which an offender is liable in the provision creating the offence or to enumerate the offences to which a particular punishment can attach.
[37] There is, therefore, strong reason to believe that if Parliament wished to enable driving prohibitions for criminal negligence convictions, it would have expressly listed ss. 220 and 221 in s. 320.24(4). The fact it did not do so signals that the intention of Parliament was to exclude criminal negligence from the ambit of s. 320.24(4).
[38] Not only are the criminal negligence offences absent from the list of offences that can attract a discretionary driving prohibition, they were listed under the former s. 259(2), and Parliament chose to remove them when it repealed the former provision and re-enacted a different provision as s. 320.24(4).
[39] It is well established that “[p]rior enactments may throw some light on the intention of Parliament in repealing, amending, replacing or adding to a statute” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 33; see also Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 667; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 60; Sullivan, at § 23.02[2]). Courts must presume that “amendments to the wording of a legislative provision are made for some intelligible purpose” (Sullivan, at § 23.02[3]). This remains so where the amendment takes the form of repeal and re-enactment, which is “generally viewed as the amendment of the former law” from a substantive perspective (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 111). Here, Parliament deliberately chose to repeal the former provision that listed the criminal negligence offences and replace it with a new one that does not. The textual evolution of the discretionary driving prohibition provision is consistent with legislative intention to limit the availability of that sanction to the driving-specific offences in Part VIII.1 of the Criminal Code, excluding the general offences of criminal negligence and manslaughter.
[40] In short, criminal negligence offences are not listed as offences that can attract a discretionary driving prohibition. They used to be listed, but are no longer. Parliament has expressed a strong legislative signal by repealing the provision that listed such criminal negligence offences and enacting another section that excludes them. This situation is a significant obstacle to the Crown’s submission that a driving prohibition remains an available punishment where an offender has been convicted of a criminal negligence offence.
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(f) Conclusion on the Text of Section 320.24(4)
[60] In my view, the text of s. 320.24(4) as a whole is clear and does not reveal any ambiguity. Criminal negligence offences are no longer listed as offences that can attract a discretionary driving prohibition. Moreover, Parliament’s use of the phrase “found guilty” strongly points to the need for an express judicial determination of guilt on an offence stipulated in the charging document or included in one that is (in situations where the charged offence is not proved). The Crown fails to persuade me that a finding of guilt on an included offence — sufficient to attract punishment under s. 320.24(4) — necessarily flows from conviction on the charged offence. This a very weak basis on which to argue that the text implies the inclusion of something that was repealed and not carried forward in a fundamentally altered scheme for driving offences.
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(3) Legislative Purpose
[77] Sullivan explains that “[i]n so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided” (§ 9.01[1]; see also Côté, Beaulac and Devinat, at pp. 421-22). . Morrissey v. Wawanesa Insurance Company [Vavilov]
In Morrissey v. Wawanesa Insurance Company (Ont CA, 2024) the Ontario Court of Appeal allowed a LAT SABS appeal, here where a long-term catastrophically-injured auto insurance claimant sought additional 'attendent care benefits'.
Here the court considers Vavilov's 'text/context/purpose' take on statutory interpretation:[35] The task of interpretation requires the court to consider the text of the legislation, the context within which it operates, and the particular purpose of the provisions at issue. As the Supreme Court has noted: “[t]hose who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118. . Martin v. Wright Medical Technology Canada Ltd.
In Martin v. Wright Medical Technology Canada Ltd. (Ont CA, 2023) the Court of Appeal considers the 'modern principle' of statutory interpretation:(a) The Governing Principles of Statutory Interpretation
[15] I begin by reviewing the governing principles of statutory interpretation. The task of interpretation requires the court to consider the text of the legislation, the context within which it operates, and the particular purpose for the provisions at issue. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118, the Supreme Court identified a legal expectation that is critical in statutory interpretation: “Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose.” This reflects the “modern approach” to interpretation, which “requires that the words of a statute 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’”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 6, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. See also Vavilov, at para. 117.
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