Chapter-25 Beneficial/Remedial Legislation-Interpretive rules

Remedial/Beneficial Statures /social statute should be liberally construed

The Ontario Heritage Act was enacted to provide for the conservation, protection and preservation of the heritage of Ontario. There is no doubt that the Act provides for and the Legislature intended that municipalities, acting under the provisions of the Act, should have wide powers to interfere with individual property rights. It is equally evident, however, that the Legislature recognized that the preservation of Ontario’s heritage should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner’s rights. It provided a procedure to govern the exercise of the municipal powers, but at the same time to protect the property owner within the scope of the Act and in accordance with its terms. Virtually all argument in this Court centred upon the construction and effect of this section and, particularly, subs. (3), the ‘deeming’ provision. The respondents have contended for a liberal construction of the Act and the appellants for a strict construction. However, the Supreme Court of Canada worked on the premise that the Interpretation Act provides that “every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. All statutes, therefore, are now “remedial” and must be “liberally” construed[1].” The Ontario courts have adopted the approach dictated by s. 10 of the Interpretation Act and they have construed the statute in the purposive manner. In this they have given effect fully to the avowed purpose of The Ontario Heritage Act. The word must be construed in the entire context of the statute concerned. Giving Reference to the interpretation Act it was observed that :” Section 10 of The Interpretation Act, R.S.O. 1970, c. 225, requires that all statutes be given “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.[2]” It was observed in connection with the Factories and Shops Act 1960 (Q.) as amended ("the Act") that:’A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed "so as to give the fullest relief which the fair meaning of its language will allow[3]" If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have.[4]’ In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer[5].

Treatment to be given to these types of statutes

That being said, if the language used in a beneficial statute is ambiguous or obscure, then it should be interpreted in a manner favourable to the intended beneficiary. Nevertheless, the words used should be given their plain ordinary English meaning.[6]

Australian Approach

Beneficial and remedial legislation must be given a liberal construction, which constitutes “the widest interpretation which its language will permit[7]”.[23] A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice.[8][24] In IW v City of Perth,[9][25] BRENNAN CJ and MCHUGH J outlined the appropriate approach to statutory construction in the following terms:’[It is a] rule of construction that beneficial and remedial legislation ... is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.’ The second principle holds that beneficial and remedial legislation must be given a liberal construction, which constitutes “the widest interpretation which its language will permit”[10]. A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice.[11] In IW v City of Perth,[12] Brennan CJ and McHugh J outlined the appropriate approach to statutory construction in the following terms:

[It is a] rule of construction that beneficial and remedial legislation ... is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [13] it was held at [53]:

”The beneficial purpose of the legislative scheme of the Aboriginal Land Rights Act 1983 suggests that the exceptions to the right to make claims on Crown Land should be narrowly construed.”

There can be no doubt that the Long Service Leave Act [LSL Act] is social legislation and its terms should be construed beneficially. In this respect, I refer to what Samuels JA said inIt is stated in Lindner Pty Ltd v Builders Licensing Board [14][when considering the purpose of the Building and Construction Industry Long Service Payments Act 1974]:

It seems to me that once one arrives at that general conclusion about the purpose of the Act, it is, as CROSS J, viz Builders Licensing Board v BJ Linder Pty Ltd [15], described it, a piece of social legislation designed to provide benefits for a category of the workforce. That being the case, it is entitled to a beneficial construction rather than to a strictly literal one, this being the approach applied to legislation of similar purpose in cases such as State Government Insurance Office (Queensland) v Crittenden (1966)[16], and in earlier cases in the High Court ..In Collison v State Rail Authority [17]where at 338 it is stated said:

Without question the Long Service Leave Act is social legislation designed to provide benefits for a category of the workforce. As such it is entitled to a beneficial construction rather than a strictly literal one[18].If the question arises whether the two principles of interpretation to which we have referred [ie a purposive interpretation which furthered industrial safety and the rule that penal provisions should be strictly construed] come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have.[19] In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.[20]’ ‘Although it has been said that the Suitors’ Fund Act 1951 is beneficial legislation which should not be narrowly construed.[21]’

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[1] St. Peter’s Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616[the Ontario Interpretation Act, R.S.O. 1980, c. 219, provides: 10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.]

[2] St. Peter’s Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616

[3] Bull v. Attorney-General for New South Wales [1913] HCA 60; (1913) 17 CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars. 187-191, pp. 137-141. per ISAACS J as quoted in Waugh [supra] per GIBBS C.J., MASON, WILSON and DAWSON JJ

[4]Harrison v. National Coal Board (1951) AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per VISCOUNT SIMONS at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per DENNING L.J. at pp 1227-1228

[5] Waugh [supra] per GIBBS C.J., MASON, WILSON and DAWSON JJ while construing Factories and Shops Act 1960 (Q.), General Rule, r. 1, cl. 25(1)

[6] Australian Workers' Union, New South Wales Branch and Canterbury Olympic Ice Rink [2007] NSWIRComm 71 (12 April 2007)

[7] State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [138] per KIRBY J citing Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 at 260–261 (MCHUGH J) and Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 at [152] per KIRBY J.

[8] Re McComb [1993] 3 VR 485 at [22]

[9] IW v City of Perth [1997] HCA 30; (1996) 191 CLR 1 per BRENNAN CJ and MCHUGH J (footnotes omitted)

[10] State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [138] (Kirby J) citing Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 at 260–261 McHUGH and Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 at [152] per KIRBY J

[11] Re McComb [1993] 3 VR 485 at [22]

[12] IW v City of Perth [1997] HCA 30; (1996) 191 CLR 1 at 12 per BRENNAN CJ and McHUGH J (footnotes omitted)

[13] Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; (2001) 50 NSWLR 665 per SPIGLEMAN CJ (POWELL and HEYDON JJA concurring)

[14] Lindner Pty Ltd v Builders Licensing Board (1982) 1 NSWLR 612

[15] Builders Licensing Board v BJ Linder Pty Ltd [1982] 1 NSWLR 561

[16] State Government Insurance Office (Queensland) v Crittenden (1966117 CLR 412

[17] Collison v State Rail Authority (1992) 43 IR 332 Per MILLER CIM

[18] See Lindner Pty Limited v Builders Licensing Board [1982] 1 NSWLR 612 Samuels JA at 613; and Bull v Attorney-General of NSW (1913) 17 CLR 370 ISAACS J at 384

[19] Harrison v. National Coal Board ([1951] AC 639 at p. 650), per LORD PORTER; John Summers & Son Ltd. v. Frost ([1955] AC 740 at p. 751), per VISCOUNT SIMONDS; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per DENNING L.J

[20] Seymour v Migration Agents Registration Authority [2006] FCA 965 (31 July 2006)

[21](Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 at 494; Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 at 515)