Literal Rule of Construction: Criticism

But the literal rule has also been subjected to severe criticism:

(l) The most fundamental objection to the rule is that it is based on a false premise, namely that words have plain, ordinary meanings apart from their context. Professor H.L.A. Hart of Oxford has argued that a word has a core meaning 'or standard instance in which no doubts are felt about its application' even though at the edges there is a margin of uncertainty. But Professor Lon Fuller has contested this by urging that meaning attaches not to individual words but to sentences and paragraphs, and that 'surely a paragraph does not have a "standard instance" that remains constant whatever the context in which it appears.' If a statute seems to have a core meaning 'this is because we can see that, however one might formulate the precise objective of the statute, this case would still come within it.'

(2) Those who apply the literal approach often talk of using the 'dictionary meaning' of the words in question, but dictionaries normally provide a number of alternative meanings.

(3) The plain-meaning approach cannot be used for general words, which are obviously 

capable of bearing several meanings.

(4) Not infrequently the courts say that the meaning of the words is 'plain' but then disagree as to their interpretations.

(5) The plain-meaning theory may be acceptable outside the courtroom, since it could be true that a high proportion of statutory materials and other legal documents can in fact be interpreted without recourse to any mischief or golden rule. But in the court room there are by definition two parties, usually represented by counsel, arguing over the meaning of the relevant passage. It makes little sense to dispose of the issue between them by reference to the plain meaning when there are two meanings in issue.

The most common retort from those who favour the literal approach is that, in spite of some problems, it promotes the certainty which is one of the chief objectives of any legal system. But does it?

If all judges always followed the policy of literalism, it may be that there would be some gain in certainty. But in practice they do not. Even the most diehard advocates of the literal approach sometimes lapse into some alternative method. One commentator has written '[T]he doctrine of literalness can never be applied successfully to general words. For they always include something more than the scope and object of the statute require and so it leads to ridiculous results.

' Judges were torn between a feeling of obligation to adhere to the doctrine and a feeling of revolt against what they regarded as an absurdity and injustice. So if literalness seemed too ridiculous or threatened things which the judge regarded as fundamental, he exerted himself to escape its conclusion. Even those judges who insisted strongly upon the principle of literal adherence to the words, deserted it in such circumstances.' Lord Tenterden, who fathered the doctrine, sometimes found that literal meanings could not have been intended. And Lord Bramwell, who affirmed the doctrine with his usual vigour and challenged anyone to show him an absurdity so great as to entitle him to depart from the plain meaning, had some interesting lapses ... Lord Halsbury stated the doctrine of literalness as uncompromisingly as anyone. But in a case before the House of Lords in l890 he deserted it and appealed to the "equity of the statute."'

. . .

And at 53:

The literalist approach makes too little allowance for the natural ambiguities of language, for the frailties of even the most skilled of draftsmen and for the impossibility of foreseeing future events. In its l969 report The Interpretation of Statutes, the Law Commission said:
  To place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a difference of opinion as to their meaning. Such an approach ignores the limitations of language, which is not infrequently demonstrated even at the level of the House of Lords where Law Lords differ as to the so-called 'plain meaning' of words [para. 30]. 

 

The literal approach is based on a narrow concentration on the actual words used, to the exclusion of the surrounding circumstances that might explain what the words were actually intended to mean.

Finally, at 54:

A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question - without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.

An example of the use of the literal approach (there are many examples) is the case of Gibiino v. Barcellona (l973) 35 D.L.R. (3d) 477 (Man. Q.B.) involving the interpretation of the Limitation of Actions Act, which deals generally with the rules about time limits within which you have the right to sue. The basic rule for torts, for instance, is 2 years. But then you must ask - 2 years from the time the accident happened, or 2 years from the time when the damages were, or could have been, reasonably discovered?

There are lots of cases sorting this problem out. The rule appears to be that if the gist of the action is damages, like the tort of negligence, for example, then the time of reasonable discovery of damages may be the relevant time. Thus in Long v. Western Propeller Co. (l968), 63 W.W.R. l46 (Man. C.A.) the defendants negligently overhauled an aeroplane and negligently certified it as airworthy in l960. The plane crashed in l964. Action was brought by the owner of the plane, the pilot and the passenger in l966. It was held that the cause of action arose when the crash occurred.

Anyway, the facts of Gibiino involve a 2 year old infant who was injured on June 2l of l969 

when the porch of a home collapsed, and it was alleged that the collapse was due to the negligence of the defendant in effecting repairs to it earlier that year. Now the problem was that the Statement of Claim was not issued until July of l97l, slightly more than 2 years later. But, the Limitation of Actions Act had a special provision for people who have a "disability." "Disability" was defined in the Act as infancy or mental disorders. So in this case we are dealing with an infant.

Now what did the Act say was the limitation period for people with a disability, like infants? It stated:

"Where a person entitled to bring any action mentioned .... is under disability at the time the cause of action arises, he may bring the action w ithin the time hereinbefore limited with respect to such an action [i.e. within the normal 2   ear period] OR

at any time within 2 years after he first ceased to be under disability."

Stop reading and decide when a child who has not met the normal 2 year requirement, may nevertheless bring an action. What is the "plain meaning?"

Mr. Justice Hunt in Barcellona said:

"It is unfortunate that the provisions of this section leaves a gap, substantial in this case. It appears that Antonio Gibiino can pursue his action, but not until he is l8 years of age, and therefore not until l6 years after the alleged injuries were sustained. It may be that this is a section which should attract the attention of the Legislature as it is unfortunate that the cause of action must stand for l6 years until it is capable of being pursued. In my opinion, the wording of the enactment is clear and the words used must be interpreted in their ordinary grammatical sense. There is nothing in the context to show that they are used in a special sense to enable another interpretation.

I must apply the clear meaning of the Act and, in my opinion, the action is now barred until Antonio Gibiino attains the age of l8 years, unless changes in the legislation permit him to take action earlier.

But you may say, the purpose of the limitation is to prevent plaintiffs from "sleeping on their rights" and then suing when the evidence is stale or destroyed and prejudicing the defendant in his ability to defend the case. Here we have the parties ready to proceed, and the Judge interprets the statute to say that they have to wait l6 years when the defendant may well be dead and the plaintiff has incurred lots of expense as a result of the accident for which he may in law be entitled to compensation.

Justice Hunt, could have taken the mischief approach and implied that the section meant that the infant could sue at any time and up to 2 years after ceasing to be under disability. Perhaps the draftsmen should have included the words "during disability and." But was it improper to imply them?

This formalist interpretation continued to cause hardship with a number of cases, until finally overruled in Mumford v. Health Science Centre [l978] 6 W.W.R. 385 involving the following facts:

On 8th February l972 the mother brought the infant child to the Children's Hospital. The infant was ill with fever and stomach pains. She was examined by Dr. Charles Ferguson, who evidently reached the conclusion that the child did not require admission to the hospital, and he did not admit her. The following day the mother brought the child back to the Children's Hospital. Again Dr. Ferguson examined the child, with the same result as the previous day.

On l4th February l972 the mother brought the infant child to the St. Boniface General Hospital as the child was still ill with fever and stomach pains. The child was admitted as a patient to that hospital. The following day an operation was performed on the child. Since the occurrence of the operation the infant child, who had previously been healthy, normal and intelligent, became a spastic quadriplegic, unable to walk and talk and afflicted with cortical blindness.

It is worthy of note that, following the unfortunate consequences at St. Boniface General Hospital, Dr. Ferguson (the first doctor who had contact with the child) sent a written report dated 22nd February l972 to the St. Boniface General Hospital. I quote that last paragraph of this report:

"I think in retrospect this child almost certainly had acute appendicitis, at the time 

of the original examination which was perhaps not entirely satisfactory due to her attitude and irritability. The subsequent story is most interesting and if I see another child like this she will certainly be admitted for observation and closer monitoring of her systems."

This tells its own story.

Why did the mother not act sooner? The answer to this question is that she did not know that she had a cause of action. She is a native Indian, unfamiliar with legal matters. She did not contact a lawyer until l8th February l975 and then only under pressure from an aunt who was more knowledgeable in such matters. Indeed the mother had been of the belief that if she initiated any type of complaint or action against the hospitals or doctors her child could be taken from her.

[These facts are taken from [l977] l W.W.R. 666 (Man. C.A.)] Monin for the court in Mumford said:

... but the whole purpose of the legislation and of the modern limitation of actions legislation is to provide against the presentation of stale claims when evidence may no longer be available to the defendant litigants who came within the protection of the legislation. To determine that this infant has to wait until she attains the age of eighteen in l988 in order to start afresh, is to encourage stale litigation. There is a disability for infancy which the infant may make use of upon attaining majority, but in the meantime courts should not tell her that she must wait until she has reached the age of majority, when, in effect, through her mother as next friend, she wishes to litigate the matter now and not later.

It is interesting to note that for whatever reason, the actual case did not go to trial till 1991. Mumford lost the case and this result was confirmed by the Manitoba Court of Appeal in 1993. It was held that the Doctors involved had not been negligent.