May 10, 2009

Nova Scotia: Statutory Interpretation and “Constitutional Privity”

Filed under: 1 — ruleswatch @ 10:45 am

Nova Scotia’s Court of Appeal has just released its decision in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44. The Court unanimously rejected the appeal. Cape Breton municipal government was challenging the province on what it said was Nova Scotia’s failure to administer equalization fairly across the province and, in particular, CBRM. The action seeks declaration that contrary to s.36 of the Constitution Act, 1982, the province is failing to address regional disparity within the province. The action had been struck by the Honourable Justice John Murphy in the Supreme Court last year as disclosing no cause of action under Rule 14.25 of the then governing rules. The decision bears discussion on a number of bases but for now, two quick and convenient components stand out. The first is the Court’s, writing in the person of the Chief Justice, discourse on the application of traditional rules of interpretation of the issue. MacDonald C.J.N.S. wrote:

Interpreting Section 36

[36] The Supreme Court of Canada had endorsed the “modern approach” to statutory interpretation as expounded by Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: … the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447.


[37] It is suggested by some that this approach is no more than an amalgam of the three classic rules of interpretation: the Mischief Rule dealing with the object of the enactment; the Literal Rule dealing with grammatical and ordinary meaning of the words used; and, the Golden Rule which superimposes context. See Stéphane Beaulac & Pierre-Andre Côté in Driedger’s “Modern Principle” at the Supreme Page: 14 Court of Canada: Interpretation, Justification, Legitimation (2006), 40 Thémis 131-72 at p. 142.

[38] In any event, as Professor Ruth Sullivan explains in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) beginning at p. 1, this modern approach involves an analysis of: (a) the statute’s textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established legal norms: The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation. The first dimension emphasized is textual meaning. … A second dimension endorsed by the modern principle is legislative intent. All texts, indeed all utterances, are made for a reason. Authors want to communicate their thoughts and they may further want their readers to adopt different views or adjust their conduct as a result of the communication. In the case of legislation, the law-maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals. Lawabiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intended goals of the legislation and the means devised to achieve those goals, so that they can act accordingly. This aspect of interpretation is captured in Driedger’s reference to the scheme and object of the Act and the intention of Parliament. A third dimension of interpretation referred to in the modern principle is compliance with established legal norms. These norms are part of the “entire context” in which the words of an Act must be read. …

[39] That said, applying these dimensions is often easier said than done. Professor Sullivan elaborates at p. 3: The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme and objects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support a single interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases, the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. If the modern Page: 15 principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases. [Emphasis by author]

[40] Thus in considering whether s. 36 applies to the facts of this case, Professor Sullivan would invite us to answer three questions: Under the modern principle, an interpreter who wants to determine whether a provision applies to particular facts must address the following questions: ! what is the meaning of the legislative text? ! what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? ! what are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect? [41] Finally, in developing our answers to these three questions, Professor Sullivan invites us to apply the various “rules” of statutory interpretation: In answering these questions, interpreters are guided by the so-called “rules” of statutory interpretation. They describe the evidence relied on and the techniques used by courts to arrive at a legally sound result. The rules associated with textual analysis, such as implied exclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governing the use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent. Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms.


The second, in this context is the Chief Justice’s use of the term “constitutional privity” in discussing the partners to putative a s. 36 compromise.

Stay tuned


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