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Statutory Interpretation - 'Presumption of Consistent Expression'. Botbyl v. Heartland Farm Mutual Inc.
In Botbyl v. Heartland Farm Mutual Inc. (Ont Div Ct, 2025) the Ontario Divisional Court allowed a LAT SABS appeal, here from a LAT reconsideration decision which overturned an initial decision "that granted the Insureds relief from forfeiture of their insurance policy under s. 129 of the Insurance Act".
Here the court considers the statutory interpretation principle of 'presumption of consistent expression':[75] Heartland submits, and we agree, that the word “court” in s. 280(3) does not include the LAT. It then argues that the presumption of consistent expression, where a word or phrase is presumed to bear the same meaning throughout a text, would dictate that the word “court” in s. 129 must also be interpreted in the same way. We disagree.
[76] While the presumption of consistent expression is a well-established principle of interpretation, Ruth Sullivan identifies three general problems with it and explains why it is sometimes given little weight:One problem with the presumption of consistent expression is that it does not necessarily reflect the realities of legislative drafting. Much legislation is lengthy and complicated and subject to frequent amendments. […] In addition, amendments that are proposed by legislative committees during the legislative process are often drafted with little regard for their relation to the Act as a whole or the statute book. Some statutes, like Insurance Acts or the Criminal Code, are frequently amended year after year. It is not surprising, then, that inadvertent variations occur within a single Act.[1] This problem has become more acute since the practice of general statute revision has been replaced by continuous electronic consolidation in most Canadian jurisdictions.
A second problem with the presumption, as pointed out by Côté, is that it conflicts to some extent with the contextual principle in interpretation, which emphasizes that meaning is dependent on context. Identical words may not have identical meanings once they are placed in different contexts and used for different purposes.[2] This is particularly true of general or abstract words. These factors tend to weaken the force of the presumption so that in a given context the courts may assign it little weight.[3]
Finally, like all the presumptions of interpretation, the presumption of consistent expression must be weighed against relevant competing considerations. A good example is found in the dissenting judgment of Dickson C.J. in Mitchell v. Peguis Indian Band. One of the issues in the case was whether the expression “Her Majesty” in s. 90(1)(b) of the Indian Act referred solely to the federal Crown or included provincial Crowns as well. Dickson C.J. conceded that in s. 90(1)(a) the words “Her Majesty” were clearly limited to the Crown in right of Canada and that this usage was found in many places in the Act. He also conceded that elsewhere in the Act other expressions were used when referring to the Crown in right of the provinces. All this amounted to a strong case for applying the presumption of consistent expression. Yet Dickson C.J. refused to be bound. In his view, the arguments based on the meaning of “Her Majesty” elsewhere in the text were not conclusive. He preferred to give more weight to the presumption in favour of Indigenous peoples than to the presumption of consistent expression. The latter is merely a drafting convention, whereas the former embodies an important constitutional policy.[4] [Emphasis added.] [77] For similar analysis and conclusion, see Côté, Beaulac, and Devinat who note that this presumption is of “low persuasive weight” because it “contradicts the linguistic principle that expressions do not have a precise meaning when taken alone, but acquire meaning only when read in context. Or: the same term in a different context bears a different meaning”. Given these reservations regarding the presumption of uniformity of expression, “it should come as no surprise that the courts often attribute different meanings to the same term. …”: see P.A. Côté, Stéphane Beaulac & Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2010), at 355-356.
[78] In Bapoo v. Co-operators General Insurance, 1997 CanLII 6320 (ON CA) the Court of Appeal considered s. 12(4) of the SABS, which permits insurers, when calculating the gross weekly income of an insured, to deduct “payments for loss of income ... received by or available to the insured person ... under any income continuation plan.” The key issue was whether the term “received by or available to” referred to gross or net disability payments.
[79] The insurer noted that s. 15 of the SABS, which contained a similar phrase (“if received or available”) was commonly interpreted to permit gross deductions. It argued that if these words permitted gross deductions under s. 15, they must do the same under s. 12(4). For the majority, Justice Laskin disagreed:Giving the same words the same meaning throughout a statute is a recognized principle of statutory interpretation: see R. v. Frank, 1977 CanLII 152 (SCC), [1978] 1 S.C.R. 95 at p. 101, 75 D.L.R. (3d) 481. The court ordinarily presumes that legislation is internally consistent and coherent, and that the legislature does not enact inconsistent provisions.
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However, the principle of textual consistency is not an inflexible rule or an infallible guide to interpretation. As with the interpretation of any statutory provision, the meaning of the words "received or available" in s. 15 can only be established by considering their context. The purpose of s. 15 is to ensure that injured persons who return to work after their accident do not end up receiving more than they earned before the accident. Under s. 12, the weekly income benefit is calculated by taking 80 per cent of a person's gross weekly income before the accident. Therefore, under s. 15, it makes sense that the insurer be entitled to deduct 80 per cent of the gross income earned after the accident. Because their contexts differ, the words "received or available" should be interpreted differently in ss. 12(4) and 15. . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
Here the court considers the statutory interpretation of 'consistent expression':[55] Applying the presumption of consistent expression, when Parliament has chosen to use different terms it is presumed to have done so intentionally “in order to indicate different meanings” (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 81). In this case, there are strong reasons to conclude, in line with this presumption, that Parliament meant something other than “transmission facility” or “telecommunications facility” when it used the distinct term “transmission line”. Had Parliament wanted to include the very broad range of facilities captured by terms like “transmission facility”, such as antennas, it had terminology on hand to do so. Instead, Parliament used a term that has an ordinary meaning strongly associated with wireline, and not wireless, infrastructure.
[56] I do not agree with the carriers’ position that because “transmission facility” is only used to define the parameters of a “telecommunications common carrier” for the ownership and control regime in s. 16 of the Act, it cannot be used to justify a narrower interpretation of “transmission line”. It is true that the presumption of consistent expression may be more easily rebutted when reviewing provisions found in different parts of a statute, particularly in frequently amended and complex statutes like the Criminal Code, R.S.C. 1985, c. C-46, or insurance legislation (Steele, at para. 65). But the definition of “transmission facility” in s. 2(1) of the Act is not itself linked to the ownership and control regime. It is a general definition that applies to the Act as a whole, in contrast to other definitions that apply to only a particular part of the Act. Further, since both terms were added to the Act at the same time, it is not obvious why one should assume that “facility” and “line” are merely inadvertent variations of an analogous term. It is clear to me that Parliament understood the difference between a “facility” and a “line”, and its choice should be respected. . 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 considered the statutory interpretation principle of 'presumption of consistent expression' (which is also applied in contractual interpretation, which see):[95] Parliament must be presumed to have drawn the distinction between various transmission technologies on purpose. When Parliament decided to expand the specific types of communication lines covered in the Railway Act with the more generic notion of "“transmission line”", it could have gone further and captured all kinds of transmission techniques, wired and wireless. It chose not to do so, and carefully drew the distinction in the Act between transmission facilities and transmission lines. This was a conscious choice. The fundamental distinction between radio transmission through space (wireless) and transmission that relied on an artificial guide (wireline) was well known in 1993, and has not changed since. Courts must respect and implement that choice. As the Supreme Court stated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (at para. 81), "“when different terms are used in a single piece of legislation, they must be understood to have different meanings”".
[96] This presumption of consistent expression has been followed by the Supreme Court in Barrie. At issue in that case was whether the phrase "“the supporting structure of a transmission line”" in subsection 43(5) of the Act was broad enough to grant the CRTC authority over the power utilities’ poles. The Supreme Court found that the wording of that section could not bear the broad meaning given to it by the CRTC and advanced by the Canadian Cable Television Association (CCTA). Noting that a transmission line carries electricity over a large distance with minimum losses, while distribution lines carry less than 50kVof electricity over short distances, the Court noted that the power poles to which the CCTA sought access were distribution lines, not transmission lines. It therefore sided with the utilities, on the premise that Parliament must be taken to have known of that distinction. As the Court stated, "“[h]ad Parliament intended to submit the Utilities’ power poles to the jurisdiction of the CRTC by means of s. 43(5), it would have employed the phrase “distribution line””" (at para. 25). The same reasoning obviously applies to the phrases "“transmission line”" and "“transmission facility”". Different expressions used in the same statute, especially those of a technical nature, must be read as having different meanings.
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