2012-01-17 CBA Interpreting Legislation Paper (Final Version)

Interpreting Legislation—A Guide for Practitioners
The Canadian Bar Association—Nova Scotia
Online CLE January 20, 2012
James Charlton & Scott McCrossin∗
I. Introduction ................................................................................................................................2
II. The Legislative Process.................................................................................................................2
A. The Legislative Process at the Nova Scotia House of Assembly ......................................................4
(i) Types of Bills..............................................................................................................................4
(ii) Stages of the Legislative Process...............................................................................................5
B. The Legislative Process at the Parliament of Canada ......................................................................8
(i) Types of Bills..............................................................................................................................8
(ii) Stages of the Legislative Process...............................................................................................8
III. Anatomy of an Act .....................................................................................................................10
A. Long Title........................................................................................................................................11
B. Short Title.......................................................................................................................................12
C. Preamble........................................................................................................................................13
D. Enacting Words..............................................................................................................................14
E. Headings and Parts ........................................................................................................................14
F. Marginal Notes and Headers .........................................................................................................16
G. Punctuation....................................................................................................................................17
H. Schedules .......................................................................................................................................18
(i) Materials in a Schedule Incorporated into the Enactment.....................................................18
(ii) Materials in a Schedule not Incorporated but Validated........................................................18
(iii) Materials in a Schedule Included for Convenience Only.........................................................18
IV. How to Approach a Question of Statutory Interpretation............................................................19
A. Some Preliminary Observations.....................................................................................................20
(i) Fact, Not Abstract....................................................................................................................20
(ii) Cases Afar, Not Just Cases at Bar ............................................................................................21
(iii) “Tools”, Not “Rules”................................................................................................................21
(iv) Show You’re Right, then Show the Light.................................................................................21
B. Seven Steps to Statutory Interpretation........................................................................................22
Step 1: Isolate and write out the issue.......................................................................................23
Step 2: Check to see if the provision in issue has already been interpreted. ............................23
Step 3: Articulate precisely and write down the meaning you propose....................................24
∗
James Charlton of the Office of the Legislative Counsel (Nova Scotia) and Scott McCrossin of the Department of
Justice Canada. The contents of this paper do not necessarily reflect the views of the authors’ employers.

2
Step 4: Read the legislation. .......................................................................................................25
Step 5: Conduct a formal statutory interpretation analysis.......................................................26
Step 6: Read the Interpretation Act............................................................................................34
Step 7: Frame your argument.....................................................................................................34
V. Extrinsic Aids to Statutory Interpretation....................................................................................36
A. Legislative History..........................................................................................................................36
B. Administrative Interpretation........................................................................................................39
C. Judicial Interpretation....................................................................................................................40
I. Introduction
A first year law student could be forgiven for thinking that the study and practice of law is all about
reading and understanding case law. For so much of the three years we spend in law school, we read
and analyse cases and excerpts from cases, using inductive reasoning to discover the common law. Even
in courses dealing with largely statute-based areas of law (e.g., criminal law, corporate law), we are apt
to spend more time reading case law than reading legislation.
Upon graduation, we find that things are very different than they were in law school. In practice, many
aspects of the common law have been superseded or codified by statute, and new programs and
schemes have been created through legislation. The modern lawyer spends much time reading and
interpreting statutes (and perhaps regretting having not taken a course in statutory interpretation in law
school).
Reading a statute is not like reading a book—if it were that easy, this paper would be unnecessary.
Statutes and other legislative instruments have a language all their own, and are subject to rules of
interpretation that have been crafted and elucidated by the courts over time. The purpose of this paper
is to provide an overview of legislation and, in particular, statutes—how they are made, how they are
structured and how they are to be interpreted. While no substitute for a learned treatise or an academic
course in statutory interpretation, this paper endeavours to be a useful primer for those with little
background in interpreting legislation, and a helpful refresher for those with more. The authors hope
that this paper will provide a useful starting point for counsel faced with questions of legislative
interpretation, providing references to helpful cases and the leading textbooks, as well as the knowledge
and skills needed to resolve such questions effectively and efficiently.
II. The Legislative Process
The process by which a bill becomes a statute varies as between different jurisdictions, but among the
Legislatures of the provinces and territories of Canada, one of the essential features is that the bill must
be considered three times before it can become law. In the language of Parliament, it is said that the bill

3
must be given three “readings”.1
The practice of giving every bill three separate readings derives from ancient parliamentary practice in
the United Kingdom. Bills used to be introduced in handwritten form, and technological limitations
made it impractical to produce large numbers of copies of bills for the use of members of Parliament.
The Clerk would literally read the bill out loud in the House to inform the members of the bill’s content.
Nowadays, although the bill is no longer read aloud to members, the formality of holding the three
readings is retained.
In the Parliament of Canada, which is bicameral (meaning that it has
two legislative chambers, rather than the single chamber possessed by the provincial and territorial
legislatures), a bill must receive three readings in each of the House of Commons and the Senate.
2
The Constitution Act, 1867 provides the final essential step in the making of a statute: Royal Assent by
the Governor General of Canada (for a bill passed by the Parliament of Canada) or the Lieutenant
Governor of the province (for a bill passed by a provincial Legislature).3
The paragraphs below set out the legislative process at the Nova Scotia House of Assembly.
In addition to the three readings, the legislative process usually provides for the referral of the bill by the
legislature to a committee of its members for consideration. It also provides opportunities for the bill to
be amended before it receives all three readings.
4
Following
that, the legislative process at the Parliament of Canada is briefly described, with an emphasis on the
aspects in which it differs from the Nova Scotia practice.5
1
See e.g., Nova Scotia, House of Assembly, Rules and Forms of Procedure (1999), Rule 53; Canada, Standing Orders
of the House of Commons (2011), S.O. 71.
Having at least a rudimentary knowledge of the legislative process is important for lawyers who want to
make use of a statute’s legislative history as an interpretive tool—it allows one to know which stages of
the legislative process will feature debate on the general principles of the bill, which stages will feature
discussions about specific clauses and amendments to the bill, and which stages are merely formalities
that do not assist in understanding the legislative history of the bill.
2
Audrey O’Brien & Marc Bosc, eds., House of Commons Procedure and Practice, 2d ed. (Ottawa: House of
Commons, 2009) at 735. An electronic version of the entire text is available online at http://www.parl.gc.ca/
procedure-book-livre/.
3
Constitution Act, 1867, ss. 55 and 90.
4
A more extensive overview of legislative procedures in the Nova Scotia House of Assembly may be found in
Arthur G.H. Fordham, The Nova Scotia Legislature: An Overview of Its Procedures and Practices, rev’d ed. (Halifax:
House of Assembly, 2006). This text is available online at http://nslegislature.ca/pdfs/proceedings/
NS_Legislative_Procedures.pdf.
5
This topic is dealt with in considerable depth in O’Brien & Bosc, supra note 2, chapter 16.

4
A. The Legislative Process at the Nova Scotia House of Assembly
(i) Types of Bills
Bills introduced in the House of Assembly fall within one of two broad categories: public bills and private
or local bills. The type of bill will determine who introduces the bill and the precise path to be followed
by the bill on its way to becoming a statute. The process by which the bill to authorize the expenditure
of public money in accordance with the estimates (the Appropriations Act) is passed is slightly different,
but this is beyond the scope of this paper.
Public Bills
Public bills are bills that enact or amend laws of general application. These bills usually affect the entire
province. An example of a public bill would be a bill respecting traffic safety. Where a public bill is
initiated by a Minister of the Crown in his or her capacity as Minister, the bill is referred to as a
Government bill. Where a public bill is initiated by a private member of the House or a Minister in his or
her private capacity, the bill is known as a private member’s public bill, or more concisely, a private
member’s bill.
Government bills relate to matters of public interest and reflect the official policy of the Government.
For this reason, drafts of Government bills are approved by Cabinet before being introduced in the
House. Private members’ bills do not necessarily reflect government policy, even if introduced by a
Minister in a private capacity.
Only a Government bill can be a “money bill”, that is to say, only a Government bill may include financial
provisions such as the imposition of a tax or the appropriation of public money. In contrast, a private
member’s bill cannot contain any financial provisions. If a private member attempts to introduce a
private member’s bill and the Speaker concludes that the bill is a money bill, the Speaker must rule the
bill out of order.
Private or Local Bills
Private and local bills do not enact or amend laws of general application throughout the province. A
private bill (not to be confused with a private member’s bill) applies only to an individual or a group of
individuals, such as a bill that exempts a person from the application of a particular law or that makes a
group of individuals a corporation. A local bill applies within a particular geographical area or to a
particular municipality.
Private or local bills may be introduced by members who are not Ministers of the Crown, or by Ministers
of the Crown in their capacity as private members. They are usually introduced by a member at the
request of the person, group or municipality in the member’s electoral district to which the bill applies.
Private and local bills are usually dealt with by the House in a non-partisan manner.

5
(ii) Stages of the Legislative Process
Introduction and First Reading
Each day that the House sits, the Speaker calls for the introduction of bills as part of the daily routine of
the House. At that time, any member wishing to introduce a bill may stand and, after being recognized
by the Speaker, beg leave to introduce the bill. The Speaker states that the member “begs leave to
introduce a bill entitled …” and then reads the long title on the backer of the bill. The Clerk then assigns
a number to the bill and reads out the bill number and the long title of the bill. Finally, the Speaker
orders that the bill be read a second time on a future day.6
Unlike what happens during subsequent readings, there is no debate on the bill at first reading and the
member introducing the bill is not permitted to comment on the bill’s content; the motion is decided
without debate, and the Speaker must order that the bill be read a second time.7
Second Reading
When a bill is called for second reading, the member who introduced the bill moves that it be read for a
second time. At this time, the member will usually explain the general purpose and content the bill. Any
member may speak in the debate on the motion for second reading, but only on the general principle or
principles underlying the bill and not on its details. Each member may speak only once on the motion for
second reading, except for the member who moved second reading, who has a right of reply.8
Committee Stage
The bill
may not be amended at this stage.
The debate on second reading closes when the member who introduced the bill speaks for a second
time. At this time, the motion for second reading is put and voted on. If the motion for second reading is
defeated, the bill dies. If it is carried, the Speaker then orders that the bill be referred to a committee of
the House.
When a bill has been read a second time, it shall, unless the House orders otherwise, be referred by the
Speaker to one of two standing committees of the House: where the bill is a public bill, the Speaker
refers the bill to the Law Amendments Committee; where the bill is a private or local bill, the Speaker
refers the bill to the Private and Local Bills Committee.9
6
Normally, the first, second and third readings must take place on different days, i.e., only one reading can occur
on a given day. However, a bill may go through multiple readings in one day with the unanimous consent of the
House.
7
Rules and Forms of Procedure, supra note 1, subrule 44(1).
8
Ibid., subrules 26(1) and (2).
9
Ibid., Rule 46.

6
The Law Amendments Committee is composed of the Minister of Justice, who chairs the Committee,
and eight other members. It is at the Committee stage of the legislative process that members of the
general public have an opportunity to comment directly on the bill. After hearing representations from
the public, the Committee considers the bill clause by clause. The Committee cannot amend the bill,
although it may recommend amendments to the House.
At the conclusion of its study of the bill, the Law Amendments Committee usually reports the bill back to
the House for its favourable consideration, either without amendment or with any amendments the
Committee decides to recommend. Where the Committee does not approve of the bill, it can
theoretically recommend that the House not give favourable consideration to the bill. In practice,
however, the Committee is more likely to simply not report the bill back at all.
The Private and Local Bills Committee operates in a similar manner to the Law Amendments Committee
except that the former acts on a less partisan basis than the latter. This is because the Private and Local
Bills Committee usually deals with non-political bills that have been requested by an external body.
Reporting Back
When called upon to do so by the Speaker during the daily routine of the House, the chair of the
Committee that considered the bill may rise in his or her place and report the bill back to the House.10
The bill is attached to the Committee’s report, with any recommended amendments marked on it, and
the report is then tabled. Once the report is tabled, the Speaker orders that the bill be referred to the
Committee of the Whole House on Bills.11
Committee of the Whole House on Bills
The Committee of the Whole House on Bills meets at the behest of the Government House Leader.
When the Government House Leader so desires, he or she moves that the Speaker leave the chair and
that the House resolve itself into a Committee of the Whole House on Bills. The Committee of the Whole
House is just that, a committee composed of all the members of the House. When the House is resolved
into Committee of the Whole, the Speaker leaves the throne and the Committee is chaired by the
Chairman of Committees and Deputy Speaker or, in his or her absence, some other member. The
Committee then considers the bills referred to it in the order called by the Government House Leader.
The Committee of the Whole House on Bills studies each bill referred to it in detail, just like the Law
Amendments Committee and Private and Local Bills Committee. Unlike with those other Committees, a
practice has developed whereby the Committee of the Whole House on Bills can debate the general
principle or principles of the bill when the first clause is called for discussion. Once the first clause is
carried, the remainder of the debate must be restricted to the details of the individual clauses of the bill.
10
Ibid., subrule 47(1).
11

7
It is at this stage that the amendments recommended by the Law Amendments Committee or Private
and Local Bills Committee are dealt with: the Clerk draws the Committee’s attention to any
amendments recommended by those standing committees and, if the Committee of the Whole House
on Bills carries the clause, the clause is deemed to have been carried with the amendment.12
Debate on any given bill in Committee of the Whole House on Bills is limited to twenty hours.13
The deliberations of the Committee of the Whole House on Bills end when the Government House
Leader moves that the Committee rise and report back to the House. When this happens, the Speaker
returns to the throne. The bills are then reported back to the House and the Speaker orders that they be
read for a third time on a future day.
If the
Committee has not completed its deliberations on the bill within that time, the chair must ask, “shall the
Bill carry?” The matter must then be put to an immediate vote, with no debate being allowed. If the
vote is affirmative, the bill carries.
14
Third Reading
Third reading debate is a debate on the motion of the member who introduced the bill, or another
member on his or her behalf, that the bill be read a third time.
Third reading debate is a debate on the general principle or principles of the bill, although it tends to be
less broad than on the motion for second reading. It is not possible to amend the bill at third reading; a
member wishing to do so must move to have the bill recommitted to Committee of the Whole House on
Bills. As with second reading debate, each member may speak only once during third reading debate,
except that the member who moved third reading has the right of reply.
When the debate on the motion for third reading ends, the question is put. If the motion is defeated,
the bill dies. If it carries, the bill is passed. The Clerk of the House then prepares an engrossed bill, that
is, a clean copy incorporating any amendments made to the bill and certified by the Speaker and the
Clerk to be the bill as passed by the House. It is the engrossed bill that the Lieutenant Governor or the
Administrator endorses when giving Royal Assent.
Royal Assent and Effective Date
Royal Assent is given by the Lieutenant Governor, or, in his or her absence, by the Administrator of the
Province (usually the Chief Justice of Nova Scotia) signing the bill. The Lieutenant Governor or the
Administrator usually appears in the House, takes the Speaker’s chair, and publicly assents to the bill in a
12
13
14
Ibid., Rules 50 and 58.

8
ceremony at the end of the sitting. However, this is not always done and, as long as the Lieutenant
Governor or the Administrator has signed the bill, the bill becomes a statute.
All statutes come into force upon Royal Assent unless they otherwise provide. A statute may provide
that it comes into force upon proclamation, or that it comes into force on a particular day.
B. The Legislative Process at the Parliament of Canada
The legislative process at the Parliament of Canada is similar to that of the Nova Scotia House of
Assembly. Perhaps the most important difference is that Parliament is bicameral rather than
unicameral. This means that once a bill receives three reading in one House of Parliament, it must then
receive three readings in the other House before it receives Royal Assent. The usual path a bill takes in
becoming a statute is passage first by the House of Common, then by the Senate. However, the Senate,
with some restrictions, may also initiate bills. Where the Senate passes a bill that it initiated, the bill
must then go to the House of Common for consideration before it can receive Royal Assent.
The place where a bill was initiated is indicated by its bill number. The bill number of a bill initiated in
the House of Commons is preceded by a “C-”, e.g., Bill C-14, whereas the bill number of a bill initiated in
the Senate is preceded by an “S-”, e.g., Bill S-2.
(i) Types of Bills
In the Parliament of Canada, the distinction between public and private bills exists the same as it does in
the House of Assembly. There are no local bills in Parliament. Public bills introduced by a Minister are
Government bills, while public bills introduced by members of the House who are not Ministers are
private members’ bills. Private bills may only be introduced by private members.
(ii) Stages of the Legislative Process
As in the Nova Scotia Legislature, bills in Parliament must receive three readings in each chamber before
they can receive Royal Assent. These stages are very similar as between the House of Commons and the
House of Assembly.15
Committee Stage
It is at the committee and report stages where the greatest differences between
the legislative process in the House of Assembly and Parliament are evident.
In Parliament, instead of a bill being referred to one of two committees after second reading, it is
referred to one of any number of standing, special or legislative committees. The usual practice is that
15
One difference is that, when introducing a bill in the House of Commons, a member may be permitted to give a
succinct explanation of the provisions of the bill: see Standing Orders of the House of Commons, supra note 1, S.O.
68(1).

9
the bill is referred to a standing committee the mandate of which covers the Government Department
with responsibility for the bill.16
One important difference between the Nova Scotia House of Assembly and the House of Commons is
that, in the House of Commons, after a bill receives first reading, a Minister may move to refer the bill to
a committee of the House. In giving clause-by-clause consideration to a bill that has been referred to it
after first reading, a committee is subject to the same rules and procedures as apply to the committee
stage that occurs after second reading. However, because the House has not yet approved the bill in
principle by giving it second reading, the scope of the amendments that may be made to the bill is much
wider. After clause-by-clause consideration of the bill is completed, the bill is referred back to the House
in a manner similar to that which occurs after the usual committee stage after second reading. However,
the report stage for such a bill becomes an integral part of the second reading stage, meaning that when
and if the bill is concurred in at the end of the report stage, it is also given second reading. It may then
proceed to third reading as soon as the next sitting day.
Unlike at the House of Assembly, a committee of the House of Commons (or Senate) does not report a
bill back with a recommendation that the House (or Senate) do or do not give the bill favourable
consideration. It simply reports the bill back, with or without amendments.
17
Reporting Back
The report stage in the House of Commons effectively combines the report and Committee of the Whole
House on Bills stages of the House of Assembly. The report stage of a bill in the House of Commons
takes place several sitting days after the presentation of the committee’s report. At the report stage,
members can present amendments to the bill. To prevent the report stage from becoming a repetition
of committee stage, the Speaker is authorized to select and group amendments for debate. The Speaker
will not normally select any amendment that was considered in committee, or amendments that were
ruled inadmissible in committee.
After the House has voted on any amendments proposed at the report stage, the House votes on
whether the bill, with any amendments arising from either or both of the committee stage and the
report stage, shall be concurred in. If the vote carries, the bill proceeds to third reading, either on the
same sitting day (if no amendments had been proposed at the report stage) or on the next sitting day (if
amendments had been proposed).18
16
O’Brien & Bosc, supra note 2 at 744 (note 180) and 756 (note 268).
17
See generally Standing Orders of the House of Commons, supra note 1, S.O. 76.
18
See generally ibid., S.O. 76.1.

10
Senate Consideration
After receiving three readings in the House of Commons, a bill must still receive three readings from the
Senate before it can receive Royal Assent. Where the Senate adopts a bill without amendment, a
message is sent to the House informing that the bill has been passed. Where the Senate amends a bill, it
informs the House of the amendments in the message it sends back to the House, along with the bill.
Messages received from the Senate are printed in the Journals of the House of Commons.19
Once received, the Senate’s amendments are brought before the House for consideration. Where the
House agrees to the Senate’s amendments, it sends a message to that effect and returns the bill to the
Senate to await Royal Assent. Where the House amends or rejects Senate amendments, it advises the
Senate of same by message. The Senate may then decide to accept the decision of the House, to reject
that decision outright, or to amend what the House has proposed. Regardless of what the Senate
decides, it sends another message to the House to inform it of the decision. The process of
communication between the two chambers continues in this manner until agreement is reached on the
text of the bill. Where agreement cannot be reached, the chamber in possession of the bill may request
that a conference be held. However, this practice appears to have fallen into disuse, as no conference
has been held since 1947.20
Because most Government bills originate in the House of Commons, the Senate has developed a
procedure, known as “pre-study”, which allows the subject matter of any bill that has been introduced
in the House of Commons, but not read the first time in the Senate, to be referred to a standing
committee of the Senate for study.21
By doing so, the Senate can give extensive consideration to the bill
before it even reaches the Senate chamber for first reading, and can thereby be in a position to expedite
the passage of the bill.22
III. Anatomy of an Act
A statute is made up of a number of elements, the most important of which are the Sections and
subsections, clauses and subclauses, and paragraphs and subparagraphs that contain the substantive
content of the Act. These are the “meat and potatoes” of the Act, and it is the wording of these
provisions, and their interaction with one another that dictates the legal consequences of the actions
that the provisions govern. However, in addition to the Sections of the Act, a statute will include other
19
O’Brien & Bosc, supra note 2 at 791.
20
Ibid. at 793 – 794.
21
Rules of the Senate of Canada (2010), subrule 74(1).
22
O’Brien & Bosc, supra note 2 at 790.

11
elements such as titles—both long and short, a preamble, enacting words, marginal notes, et cetera. The
basic components of a statute are described below.
A. Long Title
The long title sets out the object and scope of the Act. In the United Kingdom, the first statutes enacted
by Parliament did not have titles. Even once Acts began to receive titles, the bestowal of the title often
occurred as an editorial addition after the statute had been enacted. Therefore, the long title was long
held by courts not to be a part of the statute, and was thus of no use in interpreting the Act.
Nowadays, every bill introduced before Parliament or the House of Assembly has a long title.23
During
clause-by-clause consideration of a bill, the long title is carried last, after all of the other clauses have
been carried, so it undoubtedly forms part of the statute when enacted.24
Parliamentary procedure requires that the content of a bill must be accurately reflected in its long title.
Therefore, courts have made use of the long title as a means of interpreting the purpose and scope of a
statute. For example, in R. v. Sheffield Mills Poultry Company,25
Chipman J.A. used the long title of the
Natural Products Act to discern the Act’s purpose. In Henry v. Workers’ Compensation Board,26
Wakeling
J.A. held in dissent that the long title of the Saskatchewan Workers’ Compensation Act—An Act to
provide for Compensation to Workers for Injuries Sustained in the Course of their Employment—could be
relied on to conclude that the death benefits provided for by the Act were not payable in respect of a
suicide.27
While the long title may assist in the interpretation of the purpose and scope of a statute, it cannot be
used to enlarge or diminish the scope of a provision of the statute that has a clear and unambiguous
meaning.28
23
Some provinces have done away with long titles, and include only a short title to the Act.
As stated by Pierre-André Côté,
24
Rules and Forms of Procedure, supra note 1, Rule 57; Standing Orders of the House of Commons, supra note 1,
S.O. 75; see also Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 376
[Sullivan, 5th ed.].
25
2003 NSCA 19 at para. 2.
26
(1999), 177 Sask.R. 35 (C.A.) at para. 95.
27
Bayda C.J.S. (Lane J.A. concurring) held that the Act created an irrebuttable presumption that when a worker is
found dead at his or her place of work, the death is a result of an injury arising out of and in the course of the
worker’s employment. Accordingly, the majority decision did not examine whether the death was a suicide, and
whether a suicide came within the scope of the provisions regarding the payment of death benefits.
28
Schiell v. Morrison, [1930] 4 D.L.R. 664 at 668 (Sask. C.A.); Temelini v. Ontario Provincial Police (Commissioner)
(1999), 44 O.R. (3d) 609 at 619 (C.A.).

12
the title’s weight will vary according to circumstances. If a statute’s text is clear and
precise, the title’s general terms will not be granted much weight. If, on the other hand,
the text is ambiguous or imprecise, the title takes on more importance.29
B. Short Title
Almost all self-contained Acts,30
Short titles are sometimes given to amending bills as a handy way of referring to a package of
amendments. Increasingly, short titles are being used for political purposes. Some short titles are meant
to sell the Act to the public: e.g., the Ideas for the Future Act, 2008;
and increasingly, many amending Acts, are given a short title. In both
Nova Scotia and Canada, the short title, if there is one, is contained in the first Section of the Act. Being
contained in an actual clause of the bill, the short title, once the bill becomes an Act, is an operative part
of the statute. The purpose of the short title is to permit the statute to be cited consistently and
concisely. The short title often describes the Act in pithy terms, such as the Police Act or the Municipal
Government Act.
31
the Strengthening Business
through a Simpler Tax System Act, 2007;32
and the Job Growth and Tax Reduction Act, 1997.33
Others
honour persons who were the impetus for the legislation: e.g., Christopher’s Law (Sex Offender
Registry), 200034
and Sabrina’s Law, 2005.35
Like the long title, the short title may be used in interpreting a statute, but its weight “should be
confined to what is warranted in the circumstances.”36
Because in a short title “accuracy may be
sacrificed to brevity”,37
29
Pierre-André Côté, The Interpretation of Legislation in Canada, 3d ed. (Toronto: Carswell, 2000) at 56.
30
Curiously, the statute commonly known as the “Clarity Act”, S.C. 2000, c. 26, has no formal short title. The Act is
composed of three sections, none of which enact a short title. Its long title is An Act to give effect to the
requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.
31
S.O. 2008, c. 24.
32
S.O. 2007, c. 11.
33
S.O. 1997, c. 10.
34
S.O. 2000, c. 1.
35
S.O. 2005, c. 7
caution must be utilized. The long and short titles will not always convey the
36
Côté, supra note 29 at 57.
37
Re Boaler, [1915] 1 K.B. 21 at 40-41 (C.A.), per Lord Scrutton.

13
same meaning, and where this occurs, it is the long title that should be preferred as an interpretive
aid.38
C. Preamble
The preamble is an optional component of a statute. Indeed, most Acts do not contain a preamble. The
preamble to an Act, if it exists at all, comes after the long title of the Act and before the enacting words
and first Section. Like the long title, the preamble is a part of the Act, and must be carried at the
committee stage of the legislative process.39
The preamble has been described as being “in the nature of
a recital of the facts operative on the mind of the law giver in proceeding to enact.”40
Both the Nova Scotia and federal Interpretation Acts provide that a preamble must be read as “part of”
the enactment to which it belongs, to assist in explaining the enactment’s “purport and object”.41
A preamble may be used to elucidate the legislative purpose of a statute, as was done in Nova Scotia
(Attorney General) v. Walsh,42
where both the majority43
and the dissenting decisions44
When dealing with a constitutional document, a preamble can even become a source of substantive
rights by filling in gaps in the legislative regime. In Reference re Remuneration of Judges of the Provincial
Court (P.E.I.),
made reference
to the preamble to the Matrimonial Property Act in determining that the purpose of that statute was to
acknowledge the contribution made by both spouses to a marriage by providing for the redistribution of
wealth upon the termination of the marriage.
45
But the preamble does have important legal effects. Under normal circumstances,
preambles can be used to identify the purpose of a statute, and also as an aid to
construing ambiguous statutory language: Driedger on the Construction of Statutes (3rd
ed. 1994), by R. Sullivan, at p. 261. The preamble to the Constitution Act, 1867, certainly
Lamer C.J.C. relied on the preamble to the Constitution Act, 1867 to flesh out the gaps in
the Constitution of Canada (at paragraph 95):
38
Ibid.; Donald J. Gifford, Kenneth H. Gifford & Michael I. Jeffrey, How to Understand Statutes and By-Laws
(Toronto: Carswell, 1996) at 32.
39
Fordham, supra note 4 at 26; O’Brien & Bosc, supra note 2 at 761.
40
Gifford, Gifford & Jeffrey, supra note 38 at 37.
41
Interpretation Act, R.S.N.S. 1989, c. 235, s. 11(1); Interpretation Act, R.S.C. 1985, c. I-21, s. 13.
42
[2002] 4 S.C.R. 325.
43
Ibid., at para. 45.
44
Ibid., at para. 180.
45
[1997] 3 S.C.R. 3.

14
operates in this fashion. However, in my view, it goes even further. In the words of Rand
J., the preamble articulates “the political theory which the Act embodies”: Switzman,
supra, at p. 306. It recognizes and affirms the basic principles which are the very source
of the substantive provisions of the Constitution Act, 1867. As I have said above, those
provisions merely elaborate those organizing principles in the institutional apparatus
they create or contemplate. As such, the preamble is not only a key to construing the
express provisions of the Constitution Act, 1867, but also invites the use of those
organizing principles to fill out gaps in the express terms of the constitutional scheme. It
is the means by which the underlying logic of the Act can be given the force of law.46
Preambles can also be a source of legislative values. These values can inform the exercise of discretion
under a statute.47
D. Enacting Words
Each statute enacted by the Legislature of Nova Scotia contains the enacting words, “Be it enacted by
the Governor and Assembly as follows”. These words, known as the enacting clause, follow the long title
and preamble, if any, of an Act but precede the first Section.48
Statutes made by Parliament contain a
similar enacting clause that refers to Parliament’s constituent parts: “Her Majesty, by and with the
advice and consent of the Senate and House of Commons of Canada, enacts as follows”.49
The enacting words do not affect the meaning of the Act in any way.
The enacting clause indicates the authority by virtue of which a statute is passed. Enacting clauses
appear only in the statutes as passed by the Legislature or Parliament; they are not present in the
revised statutes published as a part of the statute revision process.
50
E. Headings and Parts
Both the federal and Nova Scotia Interpretation Acts are silent as to the interpretive force of Headings
and Parts in statutes.51
46
Lamer C.J.C. ultimately relied on the preamble to the Constitution Act, 1867, which provided that Canada should
have “a Constitution similar in Principle to that of the United Kingdom”, as recognizing and affirming the existence
of the unwritten principle of judicial independence—a principle that Lamer C.J.C. traced back to the Act of
Settlement, 1700 (U.K.) 12 & 13 Will. III, c. 2.
In contrast, the Interpretation Acts of other jurisdictions, or their equivalents,
47
Sullivan, 5th ed., supra note 24 at 384; Côté, supra note 29 at 60 (note 63).
48
Interpretation Act (Nova Scotia), s. 2.
49
Interpretation Act (Canada), s. 4.
50

15
such as the Ontario Legislation Act, 2006, may expressly provide that Headings are “inserted in an Act …
for convenience of reference only and do not form part of it.”52
Courts today tend to favour the view that Headings and Parts are part of a statute and should be relied
on when construing the statute.53
This is so even in jurisdictions where the Interpretation Act expressly
provides that Headings are not part of the statute.54
The principles related to the use of Headings and Part are sometimes traced back to the concurring
opinion of Kellock J. in Attorney General (Canada) v. Jackson,55
In R. v. Skoke-Graham,
where his Lordship held:
Where the language of a section is ambiguous, the title and the headings of the statute
in which it is found may be resorted to to restrain or extend its meaning as best suits the
intention of the statute, but neither the title nor the headings may be used to control
the meaning of enacting words in themselves clear and unambiguous.
Headings and Parts help provide structure for a statute; they group together related provisions and
provide a visual clue as to the content of what follows. By grouping provisions together as a Part of an
Act, it is possible for a legislative drafter to create definitions applicable to the Part, or provide that the
contravention of any Section in that Part is an offence, and to provide a specific penalty for such
contraventions that may be more or less severe than the penalty for contravening Sections of the Act
outside of that Part.
56
Dickson C.J.C. considered the scope of subsection 172(3) of the Criminal Code,57
51
Sullivan, 5th ed., supra note
which makes it an offence to wilfully do anything that disturbs the order or solemnity of an assemblage
of persons meeting for religious worship or for a moral, social or benevolent purpose. The provision was
one of a number grouped together under the Heading, “Disorderly Conduct”. Dickson C.J.C. relied on
24 at 392 cites the Nova Scotia Interpretation Act as stating (at Section 12) that
headings do not form part of the enactment in which they are found. However, the reference in Section 12 is to
“headers”, which are the notes that appear directly above each Section in the annual statutes and looseleaf
consolidation in place of a marginal note.
52
S.O. 2006, c. 21, Sched. F, s. 70.
53
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at 376 – 77; Skoke-Graham v. The Queen, [1985]
1 S.C.R. 106 at 119 – 20; R. v. Lohnes, [1992] 1 S.C.R. 167 at 179; R. v. Davis, [1999] 3 S.C.R. 759 at paras. 51 – 53.
54
See African Lion Safari and Game Farm Ltd. v. Ontario (Minister of Natural Resources) (1987), 19 O.A.C. 205 at
paras. 27 – 28 (C.A.)
55
[1946] S.C.R. 489 at 495 – 96.
56
[1985] 1 S.C.R. 106.
57
Now subsection 176(3).

16
this Heading in interpreting the word “disturb”, holding that that Parliament intended only to proscribe
conduct which is either disorderly in itself or productive of disorder. It was not sufficient that the actions
upon which the charge was based disturbed others by causing annoyance, anxiety or emotional upset.
As with other intrinsic aids, the weight to be according to a Heading or Part depends on the
circumstances. Where the Heading or Part does not bear any meaningful relation to the Section being
adjudicated, the weight to be given to the language of the Heading or Part will be minimal.
F. Marginal Notes and Headers
Marginal notes are short notations appearing beside each Section or subsection (as in Acts of
Parliament). Headers appear directly above a Section (as in Acts of Nova Scotia) or subsection (as in Acts
of Ontario). A marginal note or header provides a terse indication of the matter or matters dealt with by
a Section or subsection,58
and are used primarily as “finders’ aids”.59
The federal and provincial Interpretation Acts provide that marginal notes and headers in an enactment
form no part of the enactment.60
Generally, Courts have resisted using marginal notes and headers in
interpreting statutes. Nonetheless, there are a number of instances where courts, including the
Supreme Court of Canada, have relied on marginal notes and headers to guide their interpretation of
legislation.61
Even when though courts have sometimes relied on marginal notes as interpretive aids, they are
typically accorded little weight. LeBel J. once opined that “[a]lthough marginal notes are not entirely
When dealing with a federal Act, it is arguable that marginal notes should be available for use as intrinsic
aids in interpreting statutes, the same as Headings. When a bill is introduced in the House of Commons
or the Senate, it will include Headings and Parts (if any) and marginal notes. In Ontario, proposed
amendments to a bill at the committee stage of the legislative process will include text of headers for
the new Sections and subsections being added. In contrast, no headers appear on bills introduced in the
Nova Scotia House of Assembly. In Nova Scotia, headers are added by Legislative Counsel only after the
bill has received Royal Assent. Thus, it cannot be said that the headers appearing above the Sections of
Nova Scotia Acts have been before the House of Assembly. This suggests that the headers appearing in
Nova Scotia statutes (and in other jurisdictions where headers or marginal notes are added only after
enactment) should be given even less weight, if any, as an interpretive tool.
58
59
Sullivan, 5th ed., supra note 24 at 397.
60
E.g., Interpretation Act (Canada), s. 14; Interpretation Act (Nova Scotia), s. 12; Legislation Act, 2006 (Ontario),
s. 70.
61
Francis v. Baker, [1999] 3 S.C.R. 250 at para. 42; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at
para. 36.

17
devoid of usefulness, their value is limited for a court that must address a serious problem of statutory
interpretation.”62
Sullivan has suggested that the function of marginal notes and headers as finders’ aids
may compromise their usefulness as tools for discerning legislative intent, as they are drafted “to
facilitate efficient and easy movement through the legislation, not deep or full understanding”.63
G. Punctuation
The punctuation of an Act is part of the Act and should be considered when interpreting the Act’s
provisions.
In the past, there were a great many decisions emanating out of the Courts of the United Kingdom that
stated that punctuation forms no part of an enactment. This was because of a misapprehension that, in
the years prior to 1850, when Acts of Parliament were engrossed on the Parliament Roll, the Acts were
engrossed without any punctuation. Thus, the punctuation found in printed versions of the Acts were
added by publishers. Alas, this turns out to not be true. Although there were often discrepancies
between the punctuation in the engrossed Acts on the Parliament Role and the Acts as printed, the
English statutes were indeed punctuated going back to the earliest times.64
[p]unctuation cannot render a single interpretation so certainly correct as to obviate the
need to refer to the entire enactment in the interpretation of one of its provisions but it
is certainly to be considered.
Punctuation can be of great assistance in resolving confusion caused by syntactic ambiguity. That said,
Mahoney J. expressed the view that
65
Many of the conventions governing punctuation, especially comma placement, are fluid and evolving,
and often vary as between locales. Also, considerable discretion is left to each individual author to vary
punctuation as a matter of style. For these reasons, the courts must be cautious of placing too much
significance on a single punctuation mark. Where the purpose and context of an enactment run contrary
to a meaning suggested by the placement of a particular punctuation mark, it is the former that will
more likely than not prevail.66
62
Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447 at para. 57 [“Imperial Oil”].
63
64
See F.A.R. Bennion, Statutory Interpretation (London: Butterworths, 1984) at 594 – 595 (§ 284).
65
Cardinal v. The Queen, [1980] 1 F.C. 149 (T.D.), aff’d [1980] 2 F.C. 400, aff’d [1982] 1 S.C.R. 508.
66
See e.g., Smart Hardware Co. v. Melford (Town) (1917), 32 D.L.R. 552 (Sask. C.A.); Re Winding-Up Act and Gibson
Mining, [1923] 3 D.L.R. 1052 (B.C.C.A.).

18
H. Schedules
Materials included in a schedule to an Act are intrinsic to the Act and may be relied upon when
interpreting the Act. Sullivan classifies materials included in schedules as falling within one of the three
categories set out below.
(i) Materials in a Schedule Incorporated into the Enactment
The material contained in the schedule is part of the enactment and has the same force as the
rest of the enactment if the enactment, either explicitly or by necessary intendment, indicates
that the schedule constitutes an integral part of the statute itself.67
Where a schedule has been
incorporated into the statute in which it is found, it has the same force of law as the Sections of
the text, and any conflict between it and a Section of the Act must be resolved the same as a
conflict between two Sections.68
(ii) Materials in a Schedule not Incorporated but Validated
Where a statute confirms the validity of an instrument such as a treaty, by-law or contract, the
instrument is often set out as a schedule to the Act. Under these circumstances, the instrument
set out in the schedule is validated, but does not have the force of a statute. However, the
instrument retains its original character. Thus, for example, a municipal by-law validated by an
Act of the Legislature will have force as a by-law but, unless incorporated into the validating
statute, remains susceptible to amendment or repeal by the municipal council that originally
passed it.
An instrument contained in a schedule that is not incorporated may still be used to interpret the
statute, provided that the schedule does not conflict with the provisions of the Act. Where a
conflict exists, the text of the provisions of the Act will prevail over the text of the schedule.69
(iii) Materials in a Schedule Included for Convenience Only
Materials set out in a schedule to an Act that are neither incorporated into the Act nor validated
by the Act have the same legal effect as if they were not included in the Act at all. However, as
67
British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41.
68
See e.g., Inland Revenue Commissioners v. Gittus, [1920] 1 K.B. 563 at 579 (C.A.), aff’d [1921] 2 A.C. 81 (H.L.).
69
See e.g., Chamberlain v. Carson (1973), 8 N.B.R. (2d) 514 at para. 10 (Q.B.), an instance of an apparent conflict
between a provision of the Children of Unmarried Parents Act, R.S.N.B. 1952, c. 108 and Form F, set out in a
schedule to the Act.

19
with materials in a schedule to an Act that are validated by, but not incorporated into, the Act,
the materials in the schedule may nonetheless be used to interpret the Act.70
IV. How to Approach a Question of Statutory Interpretation
In this section of the paper, the focus is on providing guidance on how to develop and present a
statutory interpretation argument. This approach is different from a straightforward review of the rules
of statutory interpretation. More comprehensive texts are available to assist counsel who need
reference to specific points in that regard. Nonetheless, in providing suggestions on how to develop a
statutory interpretation argument, the key points of statutory interpretation will be presented and it is
intended that this paper also provide a helpful review of such matters. The preceding discussion
explaining the legislative process and components of a statute will also obviously be of great assistance
to counsel in this respect.
Re Rizzo & Rizzo Shoes Ltd. is the leading case on statutory interpretation in Canada.71
Today there is only one principle or approach, namely, the words of an Act are to be read in
their entire context, in their grammatical and ordinary sense harmoniously with the scheme of
the Act, and the intention of Parliament.
In Rizzo, the
Supreme Court of Canada adopted “Driedger’s modern principle” of interpretation:
72
However one approaches the task of interpreting legislation, ultimately three points will have to be
addressed: (1) the actual text of the legislation, i.e. its meaning; (2) the intention of the legislature in
enacting the text, i.e. its purpose; and (3) the outcome of any potential interpretation, i.e. its
consequences. These points will be addressed in the sixth step of the suggested guideline below.
Notwithstanding the proposed steps, it needs to be acknowledged that there is no “one size fits all”
approach to statutory interpretation. Depending on the nature of the issue before the court and the
ambiguity in the legislation, counsel will need to delve deeper into some areas than others.
This is a holistic approach that dispels any pretence to statutory interpretation being some sort of
clinical exercise focussed solely on the specific legislative text in issue. The implication for the legislative
interpreter is the need to engage in a variety of different approaches to the interpretive task and
provide appropriate supporting material for each of those methods. This paper is intended to assist in
that regard.
70
See e.g., Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al.,
[1968] S.C.R. 676, where Pigeon J. relied on an Article of the Rome Convention, set out in a schedule to the
Copyright Act, R.S.C. 1952, c. 55, to interpret a provision of that Act.
71
[1998] 1 S.C.R. 27 [“Rizzo”].
72
Elmer Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at p. 67.

20
At all times, counsel ought to have one or both of the leading Canadian texts on statutory interpretation
by their side. They are Sullivan on the Constructions of Statutes by Ruth Sullivan, and The Interpretation
of Legislation in Canada by Pierre-Andre Côté, Stéphane Beaulac and Mathieu Devinat.73
A. Some Preliminary Observations
Of the two,
Sullivan’s text (as the successor to Driedger on the Construction of Statutes) had been the more up-to-
date until recently and probably the most commonly referred to, with Côté’s text equally as
authoritative but often used to provide further explanation or clarification when desired. Counsel who
choose to rely primarily on Sullivan’s text but who do not quite find what they are looking for in respect
of a particular matter are well-advised to canvass Côté et al.’s text on the same point.
With this introduction, it is now time to move to the task of confronting a statutory interpretation
problem.
(i) Fact, Not Abstract
Notwithstanding the fact that we interpret legislation whenever we read it, we are not generally
concerned with legislation that is clear in meaning and application to certain facts. In such routine
situations where (in interpretive terms) the “ordinary meaning” of the legislation is so clear and there is
no reason to doubt it, counsel will undoubtedly advise their clients of the probable effect of the law on
the situation at hand and decisions will be made accordingly. Happily, such straightforward situations
are the norm, which is not at all surprising because it is these most common and anticipated situations
that the legislature no doubt sought to address at the time the legislation was passed—presumably with
the capable assistance of competent legislative drafters. When we become interested in questions of
statutory interpretation, it is because the desired clarity is more elusive.
At a practical level, therefore, we are not concerned with the meaning of legislative words in any
abstract sense. Rather, our concern is with how those words apply in relation to a particular situation or
set of facts, and how they affect people’s—our clients’—rights and responsibilities. The importance of
the pre-existing factual context counsel brings to the statutory interpretation exercise cannot be
overstated. Counsel will no doubt desire a particular outcome in respect of the matter in issue, and their
role will be to persuade the court or other adjudicative body that their proposed interpretation—and
the resulting outcome in the case before it—is the appropriate one.
73
Ruth Sullivan, 5th ed., supra note 24. A new edition of Côté—Pierre-André Côté, Stéphane Beaulac & Mathieu
Devinat, The Interpretation of Legislation in Canada, 4th ed. (Cowansville, PQ: Éditions Yvon Blais, 2011)—has just
recently been published. Sullivan also authors a volume in the “Essentials of Canadian Law” series—Ruth Sullivan,
Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007) [Sullivan, Statutory Interpretation]—but the more
comprehensive text should be used whenever possible.

21
(ii) Cases Afar, Not Just Cases at Bar
Although counsel will of course be concerned with the outcome in the particular case at bar, the court
will be equally if not more concerned with the effect of the proposed interpretation on future matters.
To be effective, therefore, counsel must not only persuade the court of the propriety of the result in the
case at bar but also alleviate any other potential concerns. Sometimes this may be achieved by more
finely nuancing or limiting the proposed interpretation. Of course, it is not possible to anticipate the
myriad situations that may arise in the future requiring further refinement to the interpretation of a
particular provision, but a carefully and narrowly crafted interpretation will best allow such future
refinement if necessary.
(iii) “Tools”, Not “Rules”
It is also important to understand that there are no “rules” per se of statutory interpretation, in the
sense that failure to apply or abide by any particular “rule” is an error of law. The error—if there is
one—at the end of the day will be in the interpretation (or meaning) given to the legislation, and not in
the process followed to get there.74
Therefore, while there are a number of approaches and tools engaged to interpret a statute, ultimately
these steps are not ends in themselves but rather means to an end. As the House of Lords has
explained:
Having said that, it must readily be acknowledged that a different
application of statutory interpretation principles or techniques may well be relied upon to explain and
justify a different interpretation and resulting outcome.
75
It should also be noted that there is no universal way to classify or order these various approaches and
tools to statutory interpretation. However, there are some accepted categorizations, and counsel should
adopt the terminology used in either of the two leading Canadian texts.
They are not rules in the ordinary sense of having some binding force. They are our servants, not
our masters. They are aids to construction, presumptions or pointers. Not infrequently one
“rule” points in one direction, another in a different direction. In each case we must look at all
relevant circumstances and decide as a matter of judgment what weight to attach to any
particular “rule”.
76
(iv) Show You’re Right, then Show the Light
Finally, counsel should have two overarching aims in any argument in statutory interpretation: (1) to
show that their proposed interpretation of a statute is “right”; and (2) to show the court how to obtain
that result within the acceptable parameters of interpretation.
74
Sullivan, Statutory Interpretation, ibid. at 30.
75
Maunsell v. Olins, [1975] A.C. 373 at 382 (H.L.), per Lord Reid.
76
Sullivan, 5th ed., supra note 24, and Côté, supra, note 29.

22
First, as with most courtroom advocacy, counsel will do well to show the court why the interpretation
they propose—including the outcome on the facts of the case—is the most desirable result compared to
other possible interpretations. At its highest level, in the parlance of statutory interpretation we speak
of discerning “the intention of the legislature”. However, not to be overlooked is the desire of the court
to “do the right thing”. In his seminal article from 1938, Willis expressed this perhaps somewhat
cynically by cautioning counsel they will never know which approach to interpretation the court will
favour in any particular case as ultimately:77
Sixty-five years later, in her review and update of Willis’ article, Sullivan suggested a similar judicial
concern with the justness of a case when she wrote:
A court invokes whichever of the rules produces a result that satisfies its sense of justice in the
case before it.
78
Secondly, whatever result is considered desirable, the court must be able to reach it within the
reasonable parameters of statutory interpretation. Failure to do so will lead to the same error recently
recognized by the Supreme Court of Canada in Mowat where the Canadian Human Rights Tribunal
“articulated what it considered to be a beneficial policy outcome rather than engage in an interpretive
process taking account of the text, context and purpose of the provisions in issue” leading it “to adopt
an unreasonable interpretation of the provisions” in issue.
The rules operate as a checklist of relevant considerations. They suggest different lines of
inquiry to ensure that no possibility has been overlooked. They are relied upon by counsel in
developing arguments and by judges to justify outcomes in interpretation disputes.
At the end of the day, therefore, satisfying a court that the proposed interpretation will best satisfy its
sense of justness will go a long way to advancing counsel’s case.
79
B. Seven Steps to Statutory Interpretation
Counsel must not only persuade the court
of the most desirable outcome, therefore, but also chart an acceptable path to get there.
With the above background in mind, it is time to turn more concretely to the task of statutory
interpretation. What follows is a suggested guideline on how to complete that task in a systematic
manner. The steps outlined below assume counsel are dealing with a specific matter with an end goal of
arguing for a specific interpretation before the court. However, most of the suggestions are equally
applicable to counsel not engaged in so formal a process but who nonetheless need to work through an
interpretive problem. Further, while some of the points may seem self-evident and applicable to all legal
problems, at times counsel can lose their bearing in unfamiliar territory and therefore it may be best to
77
John Willis, “Statute Interpretation in a Nutshell”, (1938) 16 Canadian Bar Review 1 at 16.
78
Ruth Sullivan, “Statutory Interpretations in a New Nutshell”, (2003) 82 Canadian Bar Review 51 at 55.
79
Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 64 [“Mowat”].

23
cover even the basic steps. Finally, the starting point is presumed to be a situation where an interpretive
problem has already identified in the case—otherwise there would not be a need to undertake the
below analysis.
Step 1: Isolate and write out the issue.
As with any legal question, it is imperative to clearly and succinctly state the issue at hand. When
dealing with questions of interpretation, a particular complication is grafted onto the matter—the
interpreter is seeking to solve a question that pertains to the use of words through the use of other
words. The potential for circularity is obvious. Therefore, in embarking upon this exercise, it is important
to clearly articulate the issue in writing. In the short term, this will assist in the review of case law or
other material and its potential relevance to the matter at hand. In the longer term, as the interpreter’s
knowledge of the terms and concepts at play increases, this will assist in more precisely refining or
narrowing the issue. When at the point of presenting legal argument, having a precisely and narrowly
defined issue will serve counsel well. This essential task is best performed by taking the time to
concretely state the issue at the outset and continuing to tailor and refine it as necessary.
Step 2: Check to see if the provision in issue has already been interpreted
in a manner that answers the question in the case.
It is entirely possible, of course, that a court may already have considered and interpreted the provision
in issue. In some cases, the facts or issue may be fully on point with the matter facing counsel. In other
cases, the interpretation may at least have offered some judicial refinement to the relevant statutory
provision. Counsel should therefore conduct their regular check of case law to see whether the matter
has been authoritatively or persuasively dealt with already. Among the sources available to assist with
this task are:
 Annotated Acts—check law library catalogues and legal publisher websites to see whether there
is an annotated copy of the legislation in issue;
 Canadian Statute Citations volumes of The Canadian Abridgement (formerly Statutes Judicially
Considered; Carswell; also available online through LawSource on Westlaw);
 The Canadian Abridgement: Words and Phrases Judicially Defined in Canadian Courts and
Tribunals (Carswell; also available online through LawSource on Westlaw);
 Sanagan’s Encyclopaedia of Words and Phrases, Legal Maxims (Carswell);
 Canadian Legal Words & Phrases (QuickLaw);
 Canadian Encyclopedic Digest(Carswell; also available online through LawSource on Westlaw);
and
 Westlaw, Quicklaw and CanLII (various techniques to search for cases considering words and
statutes).

24
In undertaking this exercise, complementary or parallel legislation from other Canadian jurisdictions
(federal or provincial) should not be overlooked. Not only is complementary legislation a valid source of
comparison for the legislative interpreter given that similar policy objectives are often sought to be
achieved by different Canadian jurisdictions,80
Step 3: Articulate precisely and write down the meaning you propose be
given to the legislative provision issue.
but cases decided under similar provisions from other
jurisdictions may also contain a useful statutory interpretation analysis and references to cases on point
from various jurisdictions. In addition, larger jurisdictions may have commercially annotated acts
available for some statutes that smaller provinces do not, and these annotated acts may even contain
case law from the jurisdiction of interest.
Ultimately, if case law is on point and binding, there may not be much further interpretation required.
Assuming there is no quick and easy answer, counsel must now continue on in the process of
constructing an appropriate interpretation of the provision in question.
It will be helpful for counsel to articulate their proposed interpretation at the outset in order to establish
a base point that can be modified as necessary as they work through the stages of statutory
interpretation. As one proceeds through the interpretation of a statute—for example, reading the
statute or reviewing legislative history—having first articulated a proposed interpretation in writing will
help ensure counsel does not overlook phrases, provisions or other material that may support or detract
from their argument. The proposed interpretation will be refined throughout this process, but because
precision with words is very important in statutory interpretation, it is often useful to craft and then
refine a proposed interpretation from the beginning when possible, recognizing the limited knowledge
counsel may have about the matter at the beginning of their analysis.
Although it will vary in degree from case to case, the exercise at this point is quite often different from
simply stating the issue as was done in step 1. The issue in any particular case is likely to be narrow, but
to resolve it a broader principle may have to be stated that underpins the interpretation. This statement
essentially explains “why” the issue is resolved a certain way in a specific case. And because courts are
concerned with the effect of the interpretation on yet unknown cases, this underlying principle will be of
the utmost importance in such cases. For example, in Morrison Estate the narrow issue was whether the
“benefit of the doubt” provision found in s. 187 of the Nova Scotia Workers’ Compensation Act was
incorporated into s. 4 of the federal Government Employee’s Compensation Act. However, the resulting
80
Sullivan, 5th ed., supra note 24 at 419ff.

25
interpretation of s. 4 formulated by the court was much more complex.81
Step 4: Read the legislation.
Of course, a court will be loath
to determine more than is necessary to decide the case before it, and the issue may be so specific that it
will be unnecessary to get into larger statements of principle. Nonetheless, quite often the court—and
counsel—will have to do so.
Ultimately, counsel will be putting the proposed interpretation before the court. Because the court will
itself be concerned with articulating an interpretation of the provision in issue, it will be both helpful
and good advocacy to present the court with the proposed interpretation at the outset of the argument.
This will allow the court to apply its analysis and test counsel’s interpretation as it proceeds through its
own process of statutory interpretation, just as counsel will have done in developing the proposed
interpretation. And because it is usually easier to work from an existing text than it is to create
something from scratch, the court will appreciate counsel’s effort in venturing this first offering, which
also gives counsel the added benefit of having framed the issue and argument to follow.
Although reading the legislation would seem to be an obvious first step, admittedly it can be a tedious
exercise. As noted by Sullivan, by convention legislative drafters employ “utilitarian prose” that favours
consistency and uniformity while shunning those techniques that usually make for interesting reading.82
 Read the entire statute where practical.
As a result, it is not uncommon to find this step omitted by counsel who instead focus their attention on
the specific provision in issue or those immediately surrounding it. Such an approach is unfortunate
because the reward for persevering is almost always worth the effort, and counsel who have read the
statute will often distinguish themselves and make much more informed argument concerning the
specific provision in issue. Counsel should therefore be sure to:
83
 Pay particular attention to the definitions section, if any. The definitions section of the
applicable Interpretation Act may also be relevant and should be reviewed.84
81
See Cape Breton Development Corporation v. Morrison Estate, 2003 NSCA 103 at para. 68 [“Morrison Estate”]
where the Court adopted the interpretation proposed by the Attorney General of Canada that: “The provincial
workers’ compensation scheme governs claims submitted under GECA provided that: (a) the provision in issue is
reasonably incidental to a “rate” or “condition” governing compensation under the law of the province; and (b) the
provision is not otherwise in conflict with GECA.”
82
83
This may not be the best use of time or necessary when dealing with such statutes as the Income Tax Act or
Criminal Code, among others. Nonetheless, it is not difficult to search electronic versions of lengthy statutes for
specific words or phrases and the effort will often prove beneficial.

26
 Read associated regulations that may shed further insight on the provision in issues.
The goal of counsel in reading the statute should be twofold:
 First, to gain an initial understanding of the overall scheme, structure, and purpose of the
statute, and how the provision in issue promotes the legislative goal.
An understanding of the bigger picture at the outset and the place of the disputed provision
within that picture will help guide the rest of the analysis and better enable counsel to invoke
the tools of statutory interpretation to support their argument. A more fulsome “purposive
analysis” will usually be undertaken at a later stage, but it is still important to obtain this initial
appreciation of the legislation at the outset.
 Second, to learn of provisions or language in other parts of the legislation that supports
counsel’s interpretation of the provisions in issue, or counters that of their opponent.
For example, the question of whether a presumption contained in one part of the statute
applies to a certain group of employees may be influenced by demonstrating that different
presumptions found elsewhere in the statute (or even other statutes) will be similarly affected
by the interpretation of the provision in issue.85
In other cases provisions within a statute may
help determine whether a duty of care exists in tort.86
Step 5: Conduct a formal statutory interpretation analysis.
Counsel will need to read a statute in its
entirety in order to discover such potentially helpful provisions.
As noted previously, “Driedger’s modern principle” is the touchstone for statutory interpretation in
Canada. At a practical level, Sullivan explains what this means:87
84
Counsel may be surprised to find such terms as “person”, “public officer”, “bank”, and “duly qualified medical
practitioner” among others defined in the Nova Scotia Interpretation Act, not only as applicable to that Act but all
other provincial enactments: see Interpretation Act (Nova Scotia), s. 7.
The chief significance of the modern principle is its insistence on the complex, multi-dimensional
character of statutory interpretation.
85
See, for example, Morrison Estate, supra note 81 at para. 48-49.
86
See, for example, Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2011 NSCA 43 at paras. 27-51
[“Cherubini”]. In what was essentially an exercise in statutory interpretation, the Court interpreted Section 78 of
the Occupational Health and Safety Act and subsection 5(4) of the Proceedings against the Crown Act as negating a
duty of care in tort in that case.
87

27
Therefore, interpreters cannot choose one aspect of the statutory interpretation process that favours
their preferred interpretation and leave the analysis at that. Rather, a more fulsome approach
considering such factors as the text of the impugned provision, the purpose of the legislation (which
requires a divination of legislative intent) and the consequences of the proposed interpretation must be
considered.88
(i) Analyse the Text
The three stages set out below are meant to capture the most significant parts of this
process, being the textual, purposive and consequential analyses.
To start with, as we have already done above in looking at definition sections and the other components
of a statute, we can begin with the text.
When reviewing the text of a legislative provision, there are several presumptions, “rules”, and
techniques that counsel can apply to their analysis. Several of these matters are the subject of whole
chapters in their own right in the leading texts on statutory interpretation. It is not possible or useful to
repeat all of that material here. Rather, what follows is a synopsis of some of the major principles and
arguments available to counsel, and reference ought to be taken to the more comprehensive resources
if counsel feels it would be helpful to pursue any of them further in relation to a specific case. And again,
it must be noted that none of these “rules” are binding in their own right—they are more in the nature
of tools that help support an interpretation based on a more holistic approach that also takes into
account legislative purpose and consequences.
Presumptions
 Ordinary Meaning
The ordinary meaning is that which comes to mind when a competent user of the language reads the
text. This is the starting point in all matters of statutory interpretation and there is a strong presumption
in favour of such an interpretation, especially “as opposed to a strained or implausible meaning”.89
Sources to help prove the ordinary meaning of a word include judicial notice, linguistic intuition, and
past case law.
The
ordinary meaning prevails in the absence of a reason to reject it, but it can be rejected or modified when
considerations such as the purpose of the legislation and consequences of the interpretation call for it.
90
88
These were the factors most emphasized by the Nova Scotia Court of Appeal in Thomson v. Nova Scotia
(Workers’ Compensation Appeal Tribunal), 2003 NSCA 14, 212 N.S.R. (2d) 81 at para. 16 [“Thomson”].
Although the use of dictionaries has been criticized for misleading the interpreter to
focus on a word in isolation or accepting that words have some objective “official” meaning, resort to a
89
90
See ibid. at 29-41.

28
reputable dictionary (e.g., Oxford English Dictionary or Le Petit Robert) is common, acceptable, and can
help ground the interpretation of a word in an appropriate case.91
 Technical Meaning
Where legislation involves relatively complex matters and specific audiences, technical meanings of the
terms employed may be preferred even when those terms also have different, ordinary meanings. As
usual, the question is one of legislative intent. Technical meanings are questions of fact and must
normally be established through expert evidence.92
 Legal Meanings and Meanings Fixed by Law
Legal meanings are akin to technical meanings. However, because judges and lawyers are familiar with
“legal terms of art”, they may be judicially-noticed or proven in more familiar ways.93
 Plausible Meaning
Legal meanings
can also be defined explicitly, either by such statutes as the various interpretation acts, or within the
definitions section (or elsewhere) in a statute. Meanings that are defined by the relevant act or
regulation take precedence over ordinary and other meanings.
Ultimately, the interpretation adopted by the court must be one that the words of the text can
reasonably bear. While there is tolerance for strained interpretation when it would help avoid an
absurdity, an interpretation that stretches the text too far will fail once it crosses the threshold of
implausibility.
 Bilingual Statutes
When dealing with federal legislation or other officially bilingual jurisdictions, the impugned provisions
must be reviewed in both languages. The meaning or parameters of certain terms or phrases will often
be more evident in one language than the other. Counsel who do not have a strong grasp of the second
language will still find it possible to undertake a basic comparison with the assistance of dictionaries and
reliance upon others.
91
See, for example, Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and
Safety Board), [2007] 1 F.C.R. 203, 2006 FCA 157 at para. 69 where the Federal Court of Appeal endorsed
“[c]ommon sense with the assistance of dictionaries” in interpreting the meaning of “commercial” within the
context of section 20(1)(b) of the Access to Information Act, R.S.C. 1985, c. A-1.
92
See Sullivan, 5th ed., supra note 24, chapter 3. See also, for e.g., Fahlman v. Community Living British Columbia,
2007 BCCA 15 at paras. 25ff.
93
See, for example, Mowat, supra note 79 at para. 40.

29
Textual Tools
 No Tautology
The legislature “does not speak in vain”. The legislature chooses each word carefully—superfluous,
repetitive or meaningless words are avoided. Each word has an intended meaning, and meaning must
therefore be found for each distinct word.94
 Uniform Expression
The legislature knows its legislation and is presumed to use the same words to convey the same
meaning and different words to convey different meanings. Counsel should therefore review other
provisions of the legislation in issue to determine whether any opportunities for argument exist in this
regard.
 Implied Exclusion95
“To express one thing is to exclude another.” When one would have expected the legislature to include
something explicitly and it did not do so, an inference may be drawn that the matter was excluded on
purpose.
 Associated Words96
The meaning of potentially broad or ambiguous words can gain character from words surrounding them.
Where a series of specific words are enunciated in a provision, look for commonality among them to see
if the meaning of any potentially ambiguous term can be restricted by the others. For example, in
“removes, conceals or disposes” of property, a positive physical act may be implied by “conceal” as
opposed to passive non-disclosure.97
 Limited Class98
Similar in a way to the associated words maxim, this tool can be used to limit the meaning of a general
term to the genus of the preceding words.
94
Ibid. at paras. 37-38.
95
Expressio unius est exclusio alterros.
96
Noscitur a socirs. See Sullivan, 5th ed., supra note 24 at 229ff.
97
See R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.).
98
Ejusdem generis.

30
 Collocation
The meaning of a potentially broad word may be limited by the use of another term in the same
provision that conventionally restricts its meaning. For example, the meaning of “similar institution” in
the phrase “an inmate of any prison or similar institution” was seen to be restricted by the historically
negative connotation of the term “inmate”.99
Presumed Intentions
The legislature is presumed to have certain intentions when it passes legislation. In cases of ambiguity,
interpreters often rely upon these presumptions.
For example, there is a general presumption of compliance whereby the legislature is presumed to have
intended that the legislation comply with overarching constitutional and statutory law. When faced with
interpretive choices that would either render a provision valid or invalid, the court will choose the
interpretation that upholds the validity of the provision in question whenever possible. This
presumption is particularly useful when dealing with interpretations involving division of powers
between different levels of government and legislative compliance with Charter values, as well as the
vires of subordinate legislation in relation to their enabling acts. Furthermore, it is presumed that certain
types of statues are intended to be interpreted liberally, while others are subject to strict construction.
Some of the more common presumptions are illustrated in the chart below.
Presumed Intention Category of Interpretation
Liberal Construction Human rights, social welfare and other remedial
legislation, Aboriginal law
Strict Construction Penal, fiscal,100
interference with private property
Coherence Intra-statute,101
inter-statute
99
See Crupi v. Canada (Employment and Immigration Commission), [1986] 3 F.C. 3 (C.A.). See also Sullivan, 5th ed.,
supra note 24 at 253ff.
100
Note the discussion of the interpretation of tax legislation at chapter 19 of Sullivan, 5th ed., supra note 24.
Although in Stubart Investments Ltd. v. R., [1994] 1 S.C.R. 536, it appeared that the Court had abandoned the
approach of strictly interpreting tax legislation, in Imperial Oil, supra note 62, the Court acknowledged that
principles of predictability and fairness to taxpayers mandated a strict approach. Therefore, as Sullivan notes, the
Court recently “has used literal construction as a proxy for strict construction” in the area of tax legislation
(at 534).

31
Compliance Constitutional law (including the Charter), the rule of
law, international law
Counsel dealing with legislation that pertains to any of the above issues or areas should take reference
to the leading texts for authority that may further support their argument in appropriate cases.102
(ii) Analyse the Purpose
The preceding discussion provides a survey of the key presumptions and tools relied upon to analyse the
text of a legislative provision when interpreting its meaning in an ambiguous or otherwise problematic
situation. While counsel engaged in such an exercise should take reference to Sullivan and/or Côté’s
more detailed texts for further explanations and case examples, it is hoped that the foregoing discussion
will assist in embarking upon a textual analysis of impugned legislation. Having completed such a textual
analysis, one must next turn to an analysis of the legislation’s purpose.
Even when the legislation’s meaning appears clear from the text, the interpreter must go on to consider
the context and purpose of the legislation overall. To stop at the text itself would effectively be to follow
the “plain meaning rule”, where one only considers the legislation’s purpose and consequences if
ambiguity is found in the text of the statute. This approach was rejected in Rizzo, where Driedger’s
“modern principle” was adopted by the Supreme Court of Canada.103
As Justice Bastarache later warned
in ATCO:104
When considering the legislative purpose, it is sometimes helpful to understand whether the legislation
is:
This Court has stated on numerous occasions that the grammatical and ordinary sense of a
section is not determinative and does not constitute the end of the inquiry. The Court is obliged
to consider the total context of the provisions to be interpreted, no matter how plain the
disposition may seem upon initial reading. ... I will therefore proceed to examine the purpose
and scheme of the legislation, the legislative intent and the relevant legal norms.
105
101
See, e.g., Shebib v. Canada (Attorney General), 2003 FCA 88 at para. 20ff.
102
See, e.g., Sullivan, 5th ed., supra note 24 at chapters 16-19. Note also, however, the limitations placed on the
use of these presumptions in NAV Canada v. Wilmington Trust Co., [2006] 1 S.C.R. 865, 2006 SCC 24 at para. 84.
103
Rizzo, supra note 71.
104
ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140 at para. 48.
105
See Sullivan, 5th ed., supra note 24 at 261-63.

32
• Reform legislation—is the legislature trying to cure some shortcoming of the common law? If so,
understand the shortcoming that the legislation is meant to cure.
or
• Program legislation—Is the legislature trying to implement some political, economic or social need?
If so, understand the policy goal of the legislation.
An understanding of the circumstances that motivated the legislature to pass the legislation in the first
place can greatly assist counsel in understanding its purpose, and in knowing where to look to find
supporting material in that respect.
The most notable places counsel ought to look for proof of legislative purpose are:
 The legislation itself, which may set out its purpose in a preamble or opening sections, or which
may even articulate a purpose in the impugned provision itself, either explicitly or implicitly (e.g.
a concern with the protection of privacy).106
 Case law, which may articulate the common law shortcoming remedied by the legislation or
otherwise describe the legislation’s purpose.
 Legislative history which shows the evolution of the provision in question, including
modifications to past wording from which inferences can be drawn about legislative intent in
passing amendments.
 Legislative debates from the time when the law was under consideration, particularly ministerial
statements (see preceding discussion about the legislative process).
 Law Amendments or other Standing Committee debate and records pertaining to the legislation
in issue (see preceding discussion about the legislative process).
 Regulatory Impact Statements, in the case of federal regulations, which often accompany and
explain newly-gazetted regulations.
 Law Reform Commission reports or reports of other government commissions that led to the
adoption of the legislation in issue.
 Academic commentary pertaining to the legislative reform in issue.
 Departmental statements and other materials revealing the intent behind the legislation.
 Annual reports and other submissions of administrative agencies charged with administering
complex program legislation.107
106
See, e.g., R. v. Garofoli, [1990] 2 S.C.R. 1421 at 1470-71.

33
For a further discussion on the use of extrinsic aids in this manner, please refer to the more detailed
discussion contained in Part V of this paper.
Legislative purpose can be considered both at a macro level—what is the overall intent of the
legislation—and also at a more micro level—what is the purpose of the particular provision, or the
particular words? The persuasive advocate will advance a comprehensive argument showing the
legislative purpose advanced by their proposed interpretation, and use a variety of different sources to
prove this purpose. Particularly in this age of computer-assisted research, it can be surprisingly easy to
invest a few hours on legislative, law reform, and other legal or government websites and discover much
useful material tending to show the purpose of the legislation under review.
Ultimately, it will be necessary to demonstrate to the court that the proposed interpretation is
consistent with or best attains the purpose of the legislature in adopting the legislation (and provision)
in issue. Counsel ought to do the necessary research and present supporting material to persuade the
court that the proposed interpretation achieves this goal.
(iii) Analyse the Consequences
As noted earlier, the court does not undertake statutory interpretation exercises in a vacuum but rather
in respect of real-life fact situations that affect real individuals and their communities. As a result, courts
will be very concerned with the outcomes of their interpretations. It serves counsel well to demonstrate
that the proposed interpretation leads to the most just and reasonable result. This stage of the analysis
flows logically from the purposive analysis, as once the purpose of the legislation has been established,
it is logical and persuasive to show the court how that purpose is satisfied in the case before it through
application of the proposed interpretation. Therefore, counsel should relate the actual outcome of the
proposed interpretation in the case at bar back to the purpose of the legislation and generally show why
the outcome is the most desirable in the circumstances.
Conversely, the absurdity of the consequences can be used to displace the strong presumption that
otherwise attaches to the ordinary meaning of unambiguous text. As Sullivan explains:108
107
See, for example, Mowat, supra note
Consequences judged to be contrary to accepted norms of justice or reasonableness are labelled
absurd and are presumed to have been unintended. If adopting an interpretation would lead to an
absurdity, the courts may reject that interpretation in favour of a plausible alternative that avoids
the absurdity.
79, where the Canadian Human Rights Commission’s interpretation of its
powers to award legal costs as reflected in its annual reports was relied upon by the Supreme Court (among other
things) in arriving at its conclusion on this issue.
108

34
This raises the question of what qualifies as an “absurdity” and (ironically enough) the legal threshold
may not be as high as that which may attach to the term in every day usage. As Sullivan explains
further:109
At this stage of the analysis, it is helpful for counsel opposed to a proposed interpretation to put their
imagination to work and critically analyse the consequences of the proposed interpretation not just on
the case at bar, but also on other possible cases—and the more probable, the better.
Absurd consequences are not limited to logical contradictions or internal incoherence but include
violations of established legal norms such as rule of law; they also include violations of widely
accepted standards of justice and reasonableness.
110
Step 6: Read the Interpretation Act.
This can lead a
court to step away from opening a “Pandora’s Box” of future problems notwithstanding the appeal of
the proposed interpretation in the matter before the court.
Contrary to the more general “rules” of statutory interpretation, the Interpretation Act (either provincial
or federal) does establish actual laws to be followed when interpreting legislation. For example,
legislative direction that the history of the legislation on the subject shall be considered in interpreting
an enactment may greatly assist a counsel who seeks to rely on just such an argument.111
So too can
provisions directing that enactments “shall be given such fair, large and liberal construction and
interpretation as best ensures the attainment of its objects”.112
Step 7: Frame your argument.
Therefore, although often overlooked,
the Interpretation Act can often provide solid authority to counsel seeking to buttress a particular
interpretation of a disputed provision, and the court’s attention should be drawn to any of its relevant
provisions.
At this point, counsel has completed a detailed review of the provision in issue and conducted the
requisite statutory interpretation analysis. The arguments in favour of the favoured interpretation (and
against the opponent’s) have been identified. What remains now is how to structure the argument for
the court.
109
Ibid. at 300.
110
See, for e.g., Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 at paras. 75
– 76.
111
Interpretation Act (Nova Scotia), s. 9.
112
Interpretation Act (Canada), s. 12.

35
In Thomson v. Nova Scotia (Workers’ Compensation Appeal Tribunal), a five-member panel of the Nova
Scotia Court of Appeal summarized the key principles that should guide counsel in their approach to a
question of statutory interpretation. In its reasons, the Court explained:113
If the steps above have been followed, the interpretive issue in the case will already have been
articulated with the necessary precision for inclusion in the factum. It is noted that if this is an appeal,
however, counsel will have to begin by addressing the standard of review. With respect to
administrative tribunals, deference may well be due to a body interpreting its governing legislation. For
example, in Mowat the Supreme Court of Canada recently applied the standard of review analysis from
Dunsmuir and concluded that the question of whether the Canadian Human Rights Tribunal’s conclusion
that the term “expenses” in a provision of the Canadian Human Rights Act included “legal costs” was
subject to review on a standard of reasonableness and not correctness, notwithstanding the very broad
legal issues the case raised in relation to administrative tribunals and the law of costs. Mowat provides
some helpful guidance on how to conduct the necessary standard of review analysis.
As in any case of statutory interpretation, the Court must strive to give the statute its
most appropriate interpretation. The appropriate interpretation is to be arrived at by
taking account of the statute’s total context having regard to its purpose, the
consequences of proposed interpretations and presumptions and special rules of
interpretation. The appropriate interpretation is one which is plausible in the sense that
it complies with the text of the statute, which is efficacious in the sense that it promotes
the legislative purpose and that is acceptable, in the sense that the outcome is
reasonable and just.: Ruth Sullivan (ed.) Driedger on the Construction of Statutes (3d,
1994) at 131.
This paragraph provides a useful framework by which to structure a statutory interpretation argument.
It is particularly helpful because it provides counsel with two different choices of a starting point for
their argument. According to the relative strength of their case, counsel can lead with the second line of
the paragraph and approach their argument in order of purpose, consequences and textual rules. Or, if
their strength lies elsewhere, counsel can start with the third line and structure their argument in order
of textual rules, purpose, and consequences. Either approach is consistent with the Court of Appeal’s
wording, but the different sequencing contained in the above paragraph allows counsel the opportunity
to lead with their best argument.
Whatever approach is followed, it is suggested that counsel take advantage of the introductory or
overview section to concisely state the proposed interpretation and the fact that this interpretation best
accords with the text and purposes of the legislative provision while also resulting in the best outcome.
114
113
Thomson, supra note 88 at para. 16. See also Sullivan, 5th ed., supra note 24 at 3.
114
Mowat, supra note 79 at paras. 15ff.

36
As noted earlier, counsel should state precisely at the outset at their legal argument the interpretation
they propose be given to the provision in issue.115
A suggested approach is to then present the above
excerpt from the Nova Scotia Court of Appeal in Thomson or an equivalent passage from Sullivan to
demonstrate to the court that you know the task ahead of you and will be following a proper path to get
there. Counsel should use headings to introduce the major milestones of the argument,116
and use
additional subheadings when appropriate to signal more specific arguments.117
Ultimately, counsel who structure their argument in a clear and systematic way and adequately address
the key components of statutory interpretation will gain the court’s confidence, allow for meaningful
debate and discussion, and enable counsel to be as persuasive as possible on the point in issue.
V. Extrinsic Aids to Statutory Interpretation
A. Legislative History
The “legislative history” of an enactment consists of all the documents pertaining to the preparation and
passage of a statute. This includes proposals in the form of green papers and white papers,118
115
In some cases, it may be helpful to reproduce the impugned statutory provision at the outset, followed by
counsel’s proposed interpretation in the next paragraph. This has the benefit of allowing the court to read the two
together. In other cases, this may be accomplished in one paragraph where the proposed interpretation is best
illustrated by including it as a modification or clarification of the existing statutory language.
116
For example, “The Proposed Interpretation Accords with the Legislative Text”, “The Proposed Interpretation
Promotes the Legislation’s Purpose”, and “The Consequences of the Proposed Interpretation are Reasonable and
Just”.
117
For example, “No Tautology” under the textual analysis, “Legislative History” under the purposive analysis, and
“Effects on Related Provisions” under the consequential analysis.
118
A “white paper” is an official document presented by a Minister which states and explains the government’s
policy on a certain issue, whereas a “green paper” is an official document sponsored by a Minister which is issued
by the government to invite public comment and discussion on an issue prior to the formulation of the
government’s policy.
reports of
Law Reform Commissions and Royal Commissions of Inquiry, Hansard reports of the debates of the
Houses of Parliament/Legislative Assembly and their committees, amendments made to the bill prior to
its enactment, and press releases and explanatory materials. Until recent times, it was relatively well-
established that the legislative history of an enactment was inadmissible before the courts to prove the
intent of the legislature. This was because of an exclusionary rule that traced its origins back to the 1769
case of Millar v. Taylor, where Willes J. stated:

2012-01-17 CBA Interpreting Legislation Paper (Final Version)

2012-01-17 CBA Interpreting Legislation Paper (Final Version)

Recommended

Recommended

More Related Content

Similar to 2012-01-17 CBA Interpreting Legislation Paper (Final Version)

Similar to 2012-01-17 CBA Interpreting Legislation Paper (Final Version) (20)

2012-01-17 CBA Interpreting Legislation Paper (Final Version)