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Sunday, June 27, 2010

Supplying Gap when Permissible

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,
 ” 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]
 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.”
[ 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

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