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Saturday, June 5, 2010

Literal Approach and Development of Other Approaches

No doubt we adopt the approach that helps us interpreting the provisions of a statute. Any approach is a valid approach till it results in a reasonable interpretation that reflects the intent of legislature.However, there is a common feeling that plain meaning and literal approach are same. However, the following does not suggest so. I am quoting from the case the citation of which is given at the end of the post..[Blogger]General Confusion about Adoption of Particular Approach
There is an apparent confusion regarding the ordinary meaning, plain meaning and literal rules of construction and the contextual, pragmatic and purposive approaches: [see generally R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., (Toronto: Butterworths, 1994) (hereinafter Sullivan) and P.-A. Côté, Interpretation of Legislation in Canada, 2nd ed. (Cowansville, Que.: Les Éditions Yvon Blais, 1991).]

The history of the plain meaning rule is canvassed by Sullivan (at pages 1-6). Originally, the phrases plain meaning rule, ordinary meaning rule and literal construction rule were essentially interchangeable. The process of interpretation invoked by these rules was, first, to determine the literal meaning of the words used, and then, only if ambiguity remained, resolve the ambiguity by reference to elements such as the mischief the provision was intended to address. This two-pronged approach has gone by the wayside as it is formalistic, technical and narrow. This conclusion is addressed by Sullivan, at page 4, who quotes one of our own judges, Rouleau J. in ECG Canada Ltd. v. Canada, reflex, [1987] 2 F.C. 415 (T.D.), at page 423:
What is Ordinary Meaning
There is no question that the literal approach is a well established one in statutory interpretation. Nevertheless, it is always open to the Court to look to the object or purpose of a statute, not for the purpose of changing what was said by Parliament, but in order to understand and determine what was said. The object of a statute and its factual setting are always relevant considerations and are not to be taken into account only in cases of doubt.
The "ordinary meaning" rule, as defined by Sullivan, simply suggests that the ordinary meaning of words as generally understood provides the best evidence of what meaning Parliament intended to convey. The ordinary meaning is that gleaned on first impression from the words in their immediate context, that is in the context of the provision in which they appear. Under this approach, if there is no reason to reject it the ordinary meaning will be applied. However, the purpose and scheme of the Act, the consequences of the proposed meaning, and any other source that may point to the legislators' intent must be examined. This examination may lead the court to modify or reject the ordinary meaning if an alternative plausible interpretation exists. Where there is no reason to reject the ordinary meaning, or where there is no plausible alternative meaning, the court must apply the ordinary meaning: Sullivan, at pages 26-28, referring to the reasons of Cory J. in Thomson v. Canada (Deputy Minister of Agriculture) , 1992 CanLII 121 (S.C.C.), [1992] 1 S.C.R. 385.

Advent of Harminisation and context
The above conclusion is reflected in the jurisprudence of the Supreme Court and of this Court. In Hills v. Canada (Attorney General),1988 CanLII 67 (S.C.C.), [1988] 1 S.C.R. 513, an unemployment insurance case, Madam Justice L'Heureux-Dubé speaking for the majority endorsed the contextual approach. At page 549 [quoting Driedger, E. A. Construction of Statutes, 2nd ed., at page 87] she stated:
there is only one principle or approach, namely, 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. MacGuigan J.A. addressed the proper approach to statutory interpretation in the context of taxation in Lor-Wes Contracting Ltd. v. The Queen, reflex, [1986] 1 F.C. 346, and determined in the oft-quoted passage, at page 352 that 
"[t]he only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions." In an unemployment insurance decision rendered shortly after Lor-Wes , Canada (Attorney General) v. Tucker, reflex, [1986] 2 F.C. 329 (C.A.), at page 340, MacGuigan J.A. writing for the majority adopted the reasoning inBourne (Inspector of Taxes) v. Norwich Crematorium, Ltd., [1967] 2 All E.R. 576 (Ch. D.), at page 578:
English words derive colour from those words which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.
So, too, you cannot take a section out of the Act, interpret it in isolation from its context and then put it back into the Act with the meaning assigned

. Purposive Approach To construction
Given this discussion of the purposive approach and the plain meaning (literal) and ordinary meaning rules of statutory construction, the method of interpretation we are to follow is, in my view, self-evident. In the context of this case, the supposed "plain meaning" approach advocated by the Commission in the interpretation of subsection 13(2) really amounts to the application of the literal approach. The Commission suggests that the subsection must be construed in isolation, without examining how it works within the scheme of the Act. I agree that if that subsection is interpreted in that fashion, its meaning is plain and unambiguous. It is the last twenty weeks of insurable employment that is relevant, regardless of whether those weeks relate to the first or second employment. Adopting the literal approach would certainly simplify the interpretation of this Act. However, Parliament did not pick the simple solution when it drafted the Act, which is commonly viewed as one of the most complex: see
 Petts v. The Umpire (Unemployment Insurance) , [1974] 2 F.C. 225 (C.A.), at page 233 perJackett C.J. In this case, as will be demonstrated, the "simple" solution is illogical when consideration is given to the broader context.
In applying the contextual approach to the construction of subsection 13(2), it becomes clear that the meaning of the provision is ambiguous when examined in its full context, in particular with regard to its relation to section 7. In light of the interaction between these provisions, there are two plausible interpretations of subsection 13(2).

... It is well-settled law that the words of a statute must be read in their total context and with proper regard to the purpose and intent of Parliament as expressed in the statute. It is only in cases of ambiguity, however, that a court needs to look beyond the ordinary meaning and normal construction of the words used by Parliament. [per Robertson J.A. (dissenting)]
Canada v. Cymerman, [1996] 2 F.C. 593
It appears that "literalism" has in a number of recent cases been in effect repudiated, there is even today some residue of authority for the so-called literal rule, especially in view of the force of precedents in our system. The result may sometimes be that a court, faced with a difficult problem of interpretation, is too readily attracted to the apparently simple course of relying on what is said to be the plain and ordinary meaning of particular words without giving sufficient weight to other considerations which might suggest a different meaning. An excessive emphasis on the words of a provision divorced from their context may be especially inappropriate where it is unlikely that the legislator had in contemplation the particular facts which subsequently arise before a court and where the question is whether the words of the provision ought to be applied to cover the facts. Thus, where the question arose whether a new furnace chamber and chimney tower of a crematorium ranked for an annual capital allowance, as being expenditure on "buildings and structures" in use "for the purpose of a trade which consists in the manufacture of goods or materials or the subjection of goods or materials to any process," the allowance was refused because it would be "a distortion of the English language to describe the living or the dead as goods or materials."[See Bourne v. Norwich Crematorium Ltd. [1967] 1 W.L.R. 691 at p. 695. The enactment in question was the Income Tax Act 1952, ss. 266 and 271.

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