Difference :Retroactive and Retrospective Statutes

There is a distinct difference between the two terms

1 Retroactive, and

2.Retrospective

As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case.The following brings out a clear difference.[blogger]

The Legislature may enact legislation which has retroactive or prospective effect. Included in the category of prospective application is legislation that is said to be “retrospective”. Much has been written by authors and courts on this subject, and applicable rules continue to evolve. As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case. The Supreme Court of Canada, in Benner v. Canada (Secretary of State), 1997 CanLII 376 (S.C.C.), [1997] 1 S.C.R. 358 at para. 39, adopted the definitions set out by E.A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at 268-69:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospectivestatute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

In Hornby Island Trust Committee v. Stormwell 1988 CanLII 3143 (BC C.A.), (1988), 53 D.L.R. (4th) 435 at 441 (B.C. C.A.), Lambert J.A. also made the following distinction between the two terms:

A retroactive statute operates forward in time, starting from a point further back in time than the date of its enactment; so it changes the legal consequences of past events as if the law had been different than it really was at the time those events occurred. A retrospectivestatute operates forward in time, starting only from the date of its enactment; but from that time forward it changes the legal consequences of past events.                                                                                                  [Emphasis in original.]

Presumption against retrospective operation of Law

The dictum made by Judge Wright in In re Athlumney , [1898] 2 QB 547, p. 551-552, yet perfectly reflects the law against retrospective operation of law.The exact citation provided here proves the point clearly.

Perhaps no rule of construction is more firmly established than this: a retrospective effect should not be given to a statute so as to impair an existing right or obligation, except on procedural matters, unless the outcome can not be avoided without doing violence to the text. If the writing of the text may give rise to several interpretations, we must interpret it as having to take prospective effect only.

(See also Gustavson Drilling (1964) Ltd.. v. Minister of National Revenue , 1975 CanLII 4 (SCC) , [1977] 1 SCR 271, p. 279.)

The presumption that the Oireachtas does not intend an Act to apply retrospectively was stated in Hamilton v Hamilton. Henchy J said:

"When an Act changes the substantive, as distinct from procedural law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary."

Henchy J characterised the rule as a universal one, and emphasised that (contrary to the statement in Maxwell ) the rule applied to all pending enactments, unless the language irrefutably stated otherwise.[Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)