When Courts can Read words in Statute

In the case of I.C. V N.H[ full citation given at the end post] Cook J had observed that the gap in the statutes can be fulfilled by the Courts. He gave the following justification and line of reasoning while considering Change of Name Act,[Blogger]

” Our Act as worded has a “gap” which frustrates an application by one joint custodial parent for a change of his or her child’s surname. The issue thus becomes whether I should either merely disallow the within application and wait for the Legislature to amend the Act,or remedy omissions in the Act that are consistent with its objectives.”

Further giving justification for supplying this gap or filling the gap was elaborated by him in the following fashion.

 Both approaches have been discussed in The Interpretation of Legislation in Canada, (3rd Ed.) Pierre-Andre Cote, (Cars-well), at p.399, where it is stated:

“… there are also two schools of thought. One draws on the Literal Rule and favours judicial restraint, the other on the Mischief Rule, and posits correction of the text to make up for lacunae …”.

In Magor and St. Mellons Rural District Council v. Newport Corp. [1952] A.C. 189 (H.L.), Lord Denning (dissenting) supported the Mischief Rule and Lord Simmons supported the Literal Rule.

[Case Law in Canada is similarly divided. See: Re: Certain Titles to Land in Ontario (1973), 35 D.L.R.(3d) 10 (Ont. C.A.) and Ontario (Minister of Transport) v. Phoenix Assurance Co. (1974), 39 D.L.R.(3d) 481 (Ont. C.A.), affd. (1975) 5 N.R. 73 (S.C.C.). The later decision being affirmed by the Supreme Court of Canada]

Reasoning and Justification for Adding words into Act


 In Ontario (Minister of Transport), Schroeder, J., stated, at p. 487:

“… the true and perfect intention of the legislative body has received imperfect expression … and the logically defective letter of the enacted law may and should be made logically perfect so as to give effect to the legislative intention which is clearly evident.”

 Section 16 of the Interpretation Act states the following Rule of construction

“16. Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act, regulation or provision according to its true meaning.”

He concluded that s. 10(1) of the Act is logically defective because the intention of the Legislature has received imperfect expression to give effect to its intention. One does not know when s. 10(1) will be perfected by addressing lacunae. Because we are dealing with a very young child who has just commenced school, I believe that the circumstances require adoption of the Mischief Rule. Adopting the literal rule in the circumstances of this case, in my view, would not meet the reasonable expectations of practical justice.

He believed that this approach also harmonizes with the Rule of construction set out in s.16 of the Interpretation Act which requires every Act to be considered remedial and to receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act.

In short, I have concluded that there is imperfection or incompleteness in the language used in s. 10(1) and that which is logically defective should be made logically correct. This will give effect to the legislative intent which is, in my view, clearly evident.

He adopted by invoking and exercising the court’s “parens patriae” jurisdiction, to fill the legislative deficiency in the Act which was not in the interest. For support of such an approach see the comments of Madame Justice Wilson in D.B. and P.B. v. Director Of Child Welfare For Newfoundland, N.K.J. and E.J.J. (Interveners) and C.(1983). 44 N.R. 602; 39 Nfld. & P.E.I.R. 246: 111 A.P.R. 246; 30 R.F.L.(2d), 438 (S.C.C.), at pp. 445-446 [R.F.L.].


I.C. v. N.H., 2001 CanLII 33782 (NL S.C.T.D.),Supreme Court of Newfoundland and Labrador, Unified Family Court;Per   Cook, J