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Friday, June 4, 2010

Departure from Literal Rule..

 The following was observed in the case Vincent c. Forget, 2008 QCCS 2466 (CanLII) and it is being stated as it is to  illustrate that Literal approach has not found acceptance and there is tendency to shift from this approach to purposive approach/ Modern approach.[Blogger]

In a recent unanimous decision of the Court of Appeal[7], in the writings of Madam Justice France Thibault, the latter wrote:

[30]            It is not necessary to talk long to say that the "modern principle" of interpretation set out by Elmer A. Driege authority is now in the Canadian jurisprudence. As written by Professor Pierre-André Côté in his book The Interpretation of Legislation:
Elmer A. Driege, in particular, has rejected the rule of plain meaning of texts advocating, in all cases, an interpretative approach that goes beyond the text. He contrasted the three "rules" classics (Literal Rule, Mischief Rule and Golden Rule) what he called the "modern principle" of interpretation:

"Today there is only one principle or approach, we must read the terms of a law in their entire context, the grammatical and ordinary sense harmoniously with the spirit of the law, The purpose of the Act and legislative intent. "
This passage, frequently quoted and approved by members of the country's highest court, rejected the idea that the clear interpretation can only consider the terms of the law.

[31]            Article 12 of the Interpretation Act strengthens the application of this method:
All text is supposed to be remedial and is interpreted as the fairest and broadest consistent with achieving its purpose.

[32]            In that same book, the author criticizes the theory side, which limits the interpreter to the text of the law:
Today, the argument that the interpreter can be restricted to the exegesis of one form of the law and disregard the context is clearly repudiated by both in doctrine and jurisprudence.

In conclusion, we can say that currently there is still an emerging consensus on the Supreme Court of Canada around the idea that interpretation can never be confined to the text of the law, whether establish the meaning of the legal rule or to explain the meaning given the term of the interpretation process.

[36]            In my view, the appellant and respondent have both right and wrong. In the case of the appellant, it is right to refer to the modern interpretation, but it is wrong to refuse to consider exception to a provision in case of doubt, order a restrictive interpretation.Conversely, the respondent erred in denying the application of modern principles of interpretation, but he has reason to remember that a provision of emergency may be interpreted narrowly. As the Supreme Court has stated, the use of other principles of interpretation will be possible if the teleological approach does not reveal the meaning of a provision..

[v. Attorney General of Quebec Robert Paulin and Samson Bélair / Deloitte & Touche Inc.., 2007 QCCA 1716 (CanLII), 2007 QCCA 1716, decision of December 12, 2007, CAQ 200-09-005590-069, dd. Thibault, Morin, Vezina.] original French citation as [Robert Paulin et Samson Bélair/Deloitte & Touche Inc., 2007 QCCA 1716 (CanLII) , 2007 QCCA 1716, décision du 12 décembre 2007, CAQ 200-09-005590-069, jj.]

Vincent c. Forget, 2008 QCCS 2466 (CanLII) [The judgement deals with Internet and can be referred to in case of need. It is a decision of year 2008.]

One of the important derivations of the rulings of the court will help us in stating the use of literal rule. One may deviate from the normal rule of interpretation if the meaning is clear and is not subject of discussion or any form of confusion. The literal rule for statutory interpretation is not applicable and the terms must be given the ordinary meanings ascribed thereto in dictionaries, including medical and legal dictionaries, where applicable.The following was observed in regard to the that has been stated in these lines.[Blogger]

"The Act does not define “permanent impairment” beyond the noted reference in s. 153 to a “permanent anatomical deficit”. The Regulations are also silent beyond confirming in s. 36 that compensation for permanent impairment is to be determined on the basis of Appendix B. In turn, Appendix B does not specifically address conditions akin to those suffered by the claimant, save as noted above. Thus, the literal rule for statutory interpretation is not applicable and the aforementioned terms must be given the ordinary meanings ascribed thereto in dictionaries, including medical and legal dictionaries, where applicable.

[See: Pierre-André Côté, The Interpretation of Legislation in Canada, 2d ed. (Cowansville: Les Éditions Yvon Blais Inc., 1991), at 219 and 237.] The court referred to The Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1973),Stedman’s Medical Dictionary, 26th ed. (Baltimore: Williams & Wilkins, 1995) and Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West Group, 1999) to arrive at the meaning of ‘permanent disability’]"

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