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Statutory Interpretation - "Shall"
COMMENT
The statutory interpretation of the term "shall" - or any similar imperatives, often gives rises to a further interpretation issue of whether it is 'mandatory' or 'directory'.
. Miller Estate v. Arguelles
In Miller Estate v. Arguelles (Ont CA, 2026) the Ontario Court of Appeal allowed a tenant's RTA appeal, this respecting s.48 ['Notice, landlord personally, etc., requires unit' (personal possession)] and s.71.1 ['Application based on certain notice' (supporting affidavit)] issues.
The court considered the meaning of "shall" as mandatory, this from a statutory interpretation context:[50] With the legislative purposes in mind, I turn to interpret the language of the provisions in issue. For ease of reference, I reproduce ss. 71.1(3) and (4):Previous use of notices under s. 48, 49 or 50
(3) A landlord who, on or after the day subsection 11 (2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application,
(a) indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different rental unit; and
(b) set out, with respect to each previous notice described in clause (a),
(i) the date the notice was given,
(ii) the address of the rental unit in respect of which the notice was given,
(iii) the identity of the intended occupant in respect of whom the notice was given if the notice was given under section 48 or 49, and
(iv) such other information as may be required by the Rules.
Non-compliance with subs. (3)
(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).
[Emphasis added.] [51] In my view, the use of the word “shall” requires the above provisions to be read as mandatory. In Re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, the Supreme Court of Canada held that “shall” is to be interpreted presumptively as imperative unless such an interpretation would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless: at paras. 27-33. That is not the case here. Rather, interpreting “shall” as mandatory in these provisions enhances the specific purposes of s. 71.1 and the overarching remedial objective of the RTA to protect tenants from unlawful evictions. . Toronto Transit Commission v. Bering et al.
In Toronto Transit Commission v. Bering et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against "decisions of the Workplace Safety and Insurance Board" that "approved the settlement of an action that the worker had made about three years earlier thereby permitting him to seek “top up” benefits under s. 30 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (the “WSIA”), even though he did not obtain the WSIB’s approval before settling the action".
Here the court considers 'mandatory' and 'directory' statutory interpretation (used in 'imperative' contexts, eg. "shall"):[27] As noted by Rothstein J. in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 73:R. W. Macaulay and J. L. H. Sprague succinctly explain the mandatory/directory distinction as follows:Where a provision is imperative it must be complied with. The consequence of failing to comply with an imperative provision will vary depending on whether the imperative direction is mandatory or directory. Failing to comply with a mandatory direction will render any subsequent proceedings void while failing to comply with [a] directory command will not result in such invalidation (although the person to whom the command was directed will not be relieved from the duty of complying with it ... . [Citations omitted.] [28] In British Columbia (Attorney General) v. Canada (Attorney General), 1994 CanLII 81 (SCC), [1994] 2 SCR 41, Iacobucci J. stated at pp. 122-123:In particular, I think it is relevant to note that in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court commented upon the doctrinal basis of the [Montreal Street Railway Co. v.] Normandin [1917 CanLII 464 (UK JCPC), 33 D.L.R. 195 (U.K. J.C.P.C)] distinction. The Court stated (at p. 741):The doctrinal basis of the mandatory/directory distinction is difficult to ascertain. The "serious general inconvenience or injustice" of which Sir Arthur Channell speaks in Montreal Street Railway Co. v. Normandin, supra, appears to lie at the root of the distinction as it is applied by the courts. In other words, courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?
There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented. In Reference re Manitoba Language Rights, supra, this Court cited R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), per Russell J., at p. 130, to make the point. It is useful to make it again. Russell J. stated:I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling. The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory ....
Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p. 742). This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result. . Zemer et al. v. Toronto District School Board
In Zemer et al. v. Toronto District School Board (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR seeking (in part) a declaration, this brought against "the TDSB’s decision to disband the School Council and to direct a new election" of the School Council.
Here the court considers a statutory interpretation issue regarding "shall" - ie. whether in this usage it is either 'directory' or 'mandatory':[63] The TDSB submits that the word “shall” in s. 4(4) of O. Reg. 612/00 is directory rather than mandatory.
[64] As noted in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 73:... R. W. Macaulay and J. L. H. Sprague succinctly explain the mandatory/directory distinction as follows:Where a provision is imperative it must be complied with. The consequence of failing to comply with an imperative provision will vary depending on whether the imperative direction is mandatory or directory. Failing to comply with a mandatory direction will render any subsequent proceedings void while failing to comply with [a] directory command will not result in such invalidation (although the person to whom the command was directed will not be relieved from the duty of complying with it ... . [Citations omitted] [65] In British Columbia (Attorney General) v. Canada (Attorney General), 1994 CanLII 81 (SCC), [1994] 2 SCR 41, Iacobucci J. stated at pp. 122-123:In particular, I think it is relevant to note that in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court commented upon the doctrinal basis of the [Montreal Street Railway Co. v.] Normandin [1917 CanLII 464 (UK JCPC), 33 D.L.R. 195 (U.K. J.C.P.C)] distinction. The Court stated (at p. 741):The doctrinal basis of the mandatory/directory distinction is difficult to ascertain. The "serious general inconvenience or injustice" of which Sir Arthur Channell speaks in Montreal Street Railway Co. v. Normandin, supra, appears to lie at the root of the distinction as it is applied by the courts. In other words, courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?
There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented. In Reference re Manitoba Language Rights, supra, this Court cited R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), per Russell J., at p. 130, to make the point. It is useful to make it again. Russell J. stated:I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling.
The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory.... Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p. 742). This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result.
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