Punctuation and Grammar: An Aid to Interpretation
A “misplaced comma” will not be allowed to override the meaning suggested by the provision as a whole.[1] In Driedger (3rd Ed.) at p. 277:
... A comma before the qualifying words ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone.
These comments assist the court in interpreting s. 2(g) (vi). There is no comma before the qualifying words “in so far as it submits to the operation of this Act”, and that would indicate the qualifying words only apply to the last antecedent - the Crown in the Right of Canada. The comma after “the Crown in the Right of Nova Scotia” assists in separating the two entities. It need not be there, and it is absent in an equivalent definition in the Prince Edward Island Workers’ Compensation Act. Its presence, however, lends special emphasis on the two entities being demarcated when considering the qualifying words. The comma renders it clearer that the qualifying words do not relate to the Crown in the Right of Nova Scotia.
Harry Shaw at p. 66:
a. Use a comma to separate independent clauses joined by such conjunctions as and, nor, or, neither, yet, for, so. . . .
After citing a couple of examples, the author goes on to say:
This use of the comma is one of the most frequently illustrated in all writing. However, its very frequency allows considerable flexibility in application. For example, if the clauses are short, the comma may be omitted before the conjunction. But “How short is short?” If each clause consists of only four or five words or less, obviously each is short. If the clauses consist of only subject and predicate, the comma is usually omitted: . . .
Even long clauses connected by a conjunction are sometimes written without a comma if their thought relationship is close or if the subject of both clauses is the same: . . .
If applying this general rule, the principle to keep in mind is as follows: use a comma regardless of the length of the clauses involved if you wish to provide special emphasis; omit it if no particular emphasis is desired and there is no danger of misreading. . . .
A book entitled Write Right! (4th ed) by Jan Venolia, which is described as “a Canadian Desk-drawer Digest of Punctuation, Grammar, and Style, contains similar words at p. 11:
Use a comma to separate independent clauses that are joined by such co-ordinating conjunctions as but, nor, for, yet, and so.
At p. 12:
The comma is optional when two independent clauses are joined by the conjunctions and or or.
In Handbook of Current English, by Perrin and Smith, there is reference to lists with conjunctions at p. 391:
Usage is divided over the use of a comma before the and of the last item in a series. ... Formal usage regularly uses the comma before and or or, and it is usually expected in college writing. Informal usage, especially in newspapers, often omits it. Commas are not used when each of the items is joined by and or or . . .
These references from books on English grammar conform with the comment of Driedger, and on the aspect of punctuation of s. 2(g)(vi), I would summarize my findings as follows:
1. The absence of a comma after “in the Right of Canada” and before the qualifying words “insofar as it submits to the operation of the Act” means the qualifying words are meant to apply to the Crown in the Right of Canada solely and not to the Crown in the Right of Nova Scotia.
2. The comma after the Crown in the Right of Nova Scotia was intended to separate independent clauses - to differentiate between the two entities as they relate to the qualifying words.
The issue of the Crown being divisible in Canada’s federal system was dealt with by the Supreme Court of Canada in Mitchell v. Peguis Indian Band,[2]In that case the Peguis Indians were assessed a tax in respect of the sale of electricity on a reserve and the government of Manitoba settled their claim by the return of taxes paid. The appellants represented the Indians in settlement negotiations and guarnisheed against the settlement for their fees. The Indians applied to set the guarnishee aside because personal property given pursuant to a treaty and deemed to be on a reserve is not subject to attachment by a person who is not an Indian. The lower courts interpreted s. 90(1)(b) of the Indian Act, R.S.C. 1970, c. 1-6 and found the funds could not be garnisheed. S. 90(1)(b) reads:
90(1) For the purposes of section 87 and 89, personal property that was
(a) ...
(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty, shall be deemed always to be situated on a reserve.
There arose the question whether “Her Majesty” in the section includes the provincial Crown or is it a reference only to the federal Crown? Chief Justice Dickson noted at p. 97, the position taken by the Manitoba Court of Appeal:
The court held that since there is only one Sovereign in the sense of only one Queen, the Sovereign or Crown in Canada is indivisible and, therefore, the reference to "Her Majesty" had to include both the Crown in right of Canada and the Crown in right of Manitoba.
DICKSON C.J. disagreed and said at p. 101:
The Court of Appeal relied on the idea that the Crown was indivisible to hold that "Her Majesty" had to apply to both levels of government. With respect, I cannot adopt that approach. The Court of Appeal's interpretation seems grounded in the belief that there cannot be "two Queens". As Professor Hogg succinctly notes in Constitutional Law of Canada, 2nd ed., at p. 216, divisibility of the Crown in Canada does not mean that there are eleven Queens or eleven Sovereigns but, rather, it expresses the notion (at p. 217) of "... a single Queen recognized by many separate jurisdictions." Divisibility of the Crown recognizes the fact of a division of legislative power and a parallel division of executive power. If a principle so basic needed the confirmation of high judicial authority, it can be found as far back as the Privy Council decision in Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick[3], in which LORD WATSON said, at pp. 441‑42:
The object of the [British North America] Act [1867] was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. That object was accomplished by distributing, between the Dominion and the provinces, all powers executive and legislative, and all public property and revenues which had previously belonged to the provinces; ... See also the extensive discussions of the divisibility of the Crown, both within the Commonwealth and within Canada, by LORD DENNING, M.R., MAY L.J. and KERR L.J. in the recent R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta[4], and Hogg, op. cit., at pp. 215‑17.
“The divisibility of the Crown in the sense just noted does not determine the interpretation to be given to the words "Her Majesty". Even if the Court of Appeal had been correct as a matter of constitutional law regarding indivisibility of the Crown, this would not necessarily have determined the correct statutory interpretation of "Her Majesty" in s. 90(1)(b): ... [Emphasis added.]During the course of judgement in a case[5] Wallace J Any other interpretation achieved by the addition of punctuation and implying certain terminology is neither warranted nor permissible.
One intended purpose of the comma is to illuminate the grammar of a sentence. Yet despite this clarifying goal the comma has earned its notoriety as a troublemaker. The “Million Dollar Comma” debacle, in which a single comma of a single sentence of a fourteen page contract almost cost a Canadian communications giant over 2 million dollars, serves as an expensive reminder of the importance of correct grammar and punctuation. As Lynne Truss pointedly notes in Eats, Shoots & Leaves, “... legal English, with its hifalutin efforts to cover everything, nearly always ends up leaving itself semantically wide open....” It is the result of such legal efforts that the following application is before me, for advice and directions, on the interpretation of Rule 616(2)(e)(ii) of the Alberta Rules of Court (“Rule 616")[6].There is a further reason for concluding that the words are descriptive and not prescriptive. Punctuation may not be the strongest tool for statutory interpretation but in a troublesome section as this has become, it cannot be ignored. What is stark here is the use of commas at the beginning and end of the phrase "at the value … before death". The phrase is put in parenthesis. It conveys a very different meaning from a clause reading, "the deceased's severable share of that property at the value thereof immediately before his death shall be treated as part of the net estate." When read without the commas there is a composite concept of the share immutably defined by value. Value is then the intrinsically more important feature, not the incidental one suggested by the use of the commas[7].
[1] Bell[supra]
[2] Mitchell v. Peguis Indian Band, 1990 CanLII 117 (S.C.C.), [1990] 2 S.C.R. 85
[3] Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick, [1892] A.C. 437
[4] R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892
[5] British Columbia Development Corporation v. Spuncast Industries Inc., 1980 CanLII 731 (BC S.C.)
[6] Hamilton v. Nerbas, 2008 ABQB 674[Rule 616 states that, to be enforceable, a contingency fee agreement must contain, among other things, a statement about
(ii) the maximum fee payable, or the maximum rate calculated, after deducting disbursements.
The Applicant understood the word “or” in Rule 616 to read disjunctively, in that the Agreement had to contain a clear statement of either: (I) the maximum fee payable (“Option 1"); or (ii) the maximum rate calculated after deducting disbursements (“Option 2"). ]
[7] Dingmar v Dingmar Rev 1 [2006] EWCA Civ 942 (12 July 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/942.html
Cite as: [2006] EWCA Civ 942, [2006] 3 WLR 1183, [2007] 2 All ER 382 per Lord Justice Ward at paragraph 88.
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