Punctuation and Grammar : An Aid to Interpretation

Punctuation and Grammar: An Aid to Interpretation

A “misplaced comma” will not be allowed to override the meaning suggested by the provision as a whole.[1] In Driedger (3rd Ed.) at p. 277:

... A comma before the qualifying words ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone.

These comments assist the court in interpreting s. 2(g) (vi). There is no comma before the qualifying words “in so far as it submits to the operation of this Act”, and that would indicate the qualifying words only apply to the last antecedent - the Crown in the Right of Canada. The comma after “the Crown in the Right of Nova Scotia” assists in separating the two entities. It need not be there, and it is absent in an equivalent definition in the Prince Edward Island Workers’ Compensation Act. Its presence, however, lends special emphasis on the two entities being demarcated when considering the qualifying words. The comma renders it clearer that the qualifying words do not relate to the Crown in the Right of Nova Scotia.

Harry Shaw at p. 66:

a. Use a comma to separate independent clauses joined by such conjunctions as and, nor, or, neither, yet, for, so. . . .

After citing a couple of examples, the author goes on to say:

This use of the comma is one of the most frequently illustrated in all writing. However, its very frequency allows considerable flexibility in application. For example, if the clauses are short, the comma may be omitted before the conjunction. But “How short is short?” If each clause consists of only four or five words or less, obviously each is short. If the clauses consist of only subject and predicate, the comma is usually omitted: . . .

Even long clauses connected by a conjunction are sometimes written without a comma if their thought relationship is close or if the subject of both clauses is the same: . . .

If applying this general rule, the principle to keep in mind is as follows: use a comma regardless of the length of the clauses involved if you wish to provide special emphasis; omit it if no particular emphasis is desired and there is no danger of misreading. . . .

A book entitled Write Right! (4^th ed) by Jan Venolia, which is described as “a Canadian Desk-drawer Digest of Punctuation, Grammar, and Style, contains similar words at p. 11:

Use a comma to separate independent clauses that are joined by such co-ordinating conjunctions as but, nor, for, yet, and so.

At p. 12:

The comma is optional when two independent clauses are joined by the conjunctions and or or.

In Handbook of Current English, by Perrin and Smith, there is reference to lists with conjunctions at p. 391:

Usage is divided over the use of a comma before the and of the last item in a series. ... Formal usage regularly uses the comma before and or or, and it is usually expected in college writing. Informal usage, especially in newspapers, often omits it. Commas are not used when each of the items is joined by and or or . . .

These references from books on English grammar conform with the comment of Driedger, and on the aspect of punctuation of s. 2(g)(vi), I would summarize my findings as follows:

1. The absence of a comma after “in the Right of Canada” and before the qualifying words “insofar as it submits to the operation of the Act” means the qualifying words are meant to apply to the Crown in the Right of Canada solely and not to the Crown in the Right of Nova Scotia.

2. The comma after the Crown in the Right of Nova Scotia was intended to separate independent clauses - to differentiate between the two entities as they relate to the qualifying words.

The issue of the Crown being divisible in Canada’s federal system was dealt with by the Supreme Court of Canada in Mitchell v. Peguis Indian Band,[2]In that case the Peguis Indians were assessed a tax in respect of the sale of electricity on a reserve and the government of Manitoba settled their claim by the return of taxes paid. The appellants represented the Indians in settlement negotiations and guarnisheed against the settlement for their fees. The Indians applied to set the guarnishee aside because personal property given pursuant to a treaty and deemed to be on a reserve is not subject to attachment by a person who is not an Indian. The lower courts interpreted s. 90(1)(b) of the Indian Act, R.S.C. 1970, c. 1-6 and found the funds could not be garnisheed. S. 90(1)(b) reads:

90(1) For the purposes of section 87 and 89, personal property that was

(a) ...

(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty, shall be deemed always to be situated on a reserve.

There arose the question whether “Her Majesty” in the section includes the provincial Crown or is it a reference only to the federal Crown? Chief Justice Dickson noted at p. 97, the position taken by the Manitoba Court of Appeal:

The court held that since there is only one Sovereign in the sense of only one Queen, the Sovereign or Crown in Canada is indivisible and, therefore, the reference to "Her Majesty" had to include both the Crown in right of Canada and the Crown in right of Manitoba.

DICKSON C.J. disagreed and said at p. 101:

The Court of Appeal relied on the idea that the Crown was indivisible to hold that "Her Majesty" had to apply to both levels of government. With respect, I cannot adopt that approach. The Court of Appeal's interpretation seems grounded in the belief that there cannot be "two Queens". As Professor Hogg succinctly notes in Constitutional Law of Canada, 2nd ed., at p. 216, divisibility of the Crown in Canada does not mean that there are eleven Queens or eleven Sovereigns but, rather, it expresses the notion (at p. 217) of "... a single Queen recognized by many separate jurisdictions." Divisibility of the Crown recognizes the fact of a division of legislative power and a parallel division of executive power. If a principle so basic needed the confirmation of high judicial authority, it can be found as far back as the Privy Council decision in Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick[3], in which LORD WATSON said, at pp. 441‑42:

The object of the [British North America] Act [1867] was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. That object was accomplished by distributing, between the Dominion and the provinces, all powers executive and legislative, and all public property and revenues which had previously belonged to the provinces; ... See also the extensive discussions of the divisibility of the Crown, both within the Commonwealth and within Canada, by LORD DENNING, M.R., MAY L.J. and KERR L.J. in the recent R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta[4], and Hogg, op. cit., at pp. 215‑17.

“The divisibility of the Crown in the sense just noted does not determine the interpretation to be given to the words "Her Majesty". Even if the Court of Appeal had been correct as a matter of constitutional law regarding indivisibility of the Crown, this would not necessarily have determined the correct statutory interpretation of "Her Majesty" in s. 90(1)(b): ... [Emphasis added.]During the course of judgement in a case[5] Wallace J Any other interpretation achieved by the addition of punctuation and implying certain terminology is neither warranted nor permissible.

One intended purpose of the comma is to illuminate the grammar of a sentence. Yet despite this clarifying goal the comma has earned its notoriety as a troublemaker. The “Million Dollar Comma” debacle, in which a single comma of a single sentence of a fourteen page contract almost cost a Canadian communications giant over 2 million dollars, serves as an expensive reminder of the importance of correct grammar and punctuation. As Lynne Truss pointedly notes in Eats, Shoots & Leaves, “... legal English, with its hifalutin efforts to cover everything, nearly always ends up leaving itself semantically wide open....” It is the result of such legal efforts that the following application is before me, for advice and directions, on the interpretation of Rule 616(2)(e)(ii) of the Alberta Rules of Court (“Rule 616")[6].There is a further reason for concluding that the words are descriptive and not prescriptive. Punctuation may not be the strongest tool for statutory interpretation but in a troublesome section as this has become, it cannot be ignored. What is stark here is the use of commas at the beginning and end of the phrase "at the value … before death". The phrase is put in parenthesis. It conveys a very different meaning from a clause reading, "the deceased's severable share of that property at the value thereof immediately before his death shall be treated as part of the net estate." When read without the commas there is a composite concept of the share immutably defined by value. Value is then the intrinsically more important feature, not the incidental one suggested by the use of the commas[7].

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[1] Bell[supra]

[2] Mitchell v. Peguis Indian Band, 1990 CanLII 117 (S.C.C.), [1990] 2 S.C.R. 85

[3] Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick, [1892] A.C. 437

[4] R. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta, [1982] 1 Q.B. 892

[5] British Columbia Development Corporation v. Spuncast Industries Inc., 1980 CanLII 731 (BC S.C.)

[6] Hamilton v. Nerbas, 2008 ABQB 674[Rule 616 states that, to be enforceable, a contingency fee agreement must contain, among other things, a statement about

(ii) the maximum fee payable, or the maximum rate calculated, after deducting disbursements.

The Applicant understood the word “or” in Rule 616 to read disjunctively, in that the Agreement had to contain a clear statement of either: (I) the maximum fee payable (“Option 1"); or (ii) the maximum rate calculated after deducting disbursements (“Option 2"). ]

[7] Dingmar v Dingmar Rev 1 [2006] EWCA Civ 942 (12 July 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/942.html
Cite as: [2006] EWCA Civ 942, [2006] 3 WLR 1183, [2007] 2 All ER 382 per Lord Justice Ward at paragraph 88.

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Chapter-3 Punctuation and Grammar: Aid to interpretation Part 3-7

Chapter-3

Part 3-7

Punctuation and Grammar; An Aid to Interpretation

While punctuation can assist in the interpretation of statutes, care must be taken: The following citations can be noted to arrive at if Grammar is material or not. Likewise punctuation is dealt with here in details.

Although Canadian courts consider punctuation part of the legislation, they are unwilling to place much reliance on it as an aid to interpretation. The primary reason for this distrust is its inherent unreliability. Many of the conventions governing punctuation, especially comma placement, are fluid and unstable. Practices vary from one region to another and may change rapidly over time. Also, considerable discretion is left to individual writers to vary punctuation as a matter of taste or style. And not least of all, even competent users of language often make mistakes out of carelessness or uncertainty. For these reasons, the courts are rightly cautious of attaching too much significance to a single punctuation mark.

A debate on punctuation cannot take the place of an interpretation based on the legislative context and ordinary meaning of words. The reliability of punctuation as a tool of interpretation has indeed.[1] been questioned, . . .Punctuation is a rational part of English composition, and is sometimes quite significantly employed. I see no reason for depriving legal documents of such significance as attaches to punctuation in other writings.[2] Punctuation is but one tool to help in the determination of legislative intent[3].

In Caridnal, V.R.[4] MAHONEY J. wrote,

“Punctuation cannot render a single interpretation so certainly correct as to obviate the need to refer to the entire enactment in the interpretation of one of it’s provisions but it is certainly to be considered.”

The court is capable of assessing punctuation and grammar without expert or other opinion.[5] To resolve a syntactic ambiguity in a statute the courts may elicit the punctuation used in that part of the statute but do so with caution because many conventions governing punctuation are fluid and unstable especially with the use of the comma[6].

In Canada the courts look at punctuation in interpreting statutes with some caution. In the Interpretation of Legislation in Canada by Pierre André Coté (2^nd Ed.) there appears at p. 62 and 63:

‘In Canada, punctuation is considered to be a part of the stature and may be looked at in its interpretation:In construing the clause it is my opinion that we should have regard to the punctuation ... The ratio decidendi of those cases which held that punctuation in a Statute ought not to be regarded was that statutes as engrossed on the original roll did not contain punctuation marks. We were informed by counsel that in British Columbia statutes are presented to the Legislature for passing and are passed punctuated as they appear in the copies printed by the Queen’s Printer; consequently the foundation of the earlier decisions has been removed.

But even admitting that punctuation is part of the enactment, the question of its relative weight remains. As with other parts of a statute, the authorities indicate that this will vary according to the circumstances.

...

Punctuation, particularly the comma, is essential to written communication, and judges cannot totally ignore it. However, they will hesitate to base a decision solely on the presence or absence of particular punctuation marks. Several reasons justify such caution: “. . . punctuation is not subject to rigorous and well-defined rules.” To the extent that rules exist, they are poorly understood and may not have been respected, with the result that a document may be “. . . copiously, if not carefully, punctuated”.[footnotes ommitted][7]Replying to arguments based on punctuation, the courts will not only refer to its unreliable nature but also the context and object of the statute.

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[1] In Laurentide Motels Ltd. v. Beauport (Ville), 1989 CanLII 81 (S.C.C.), [1989] 1 S.C.R. 705 at 755, per L'HEUREAUX-DUBE J

[2] Housten v Burns 1918] A.C. 337 per LORD SHAW of Dunfermline ,See also: The Queen v. Alaska Pine and Cellulose Co. [1960] S.C.R. 686

[3] R. v. C. L. , 2005 NSFC 21

[4]In Caridnal, V.R. {1980} F.C. 149 at 154-55

[5] R. v. Galbraith, 2008 ONCJ 761,the court observed that:” The opinion regarding grammar and punctuation was from someone not established as an expert, and the opinion offered is not needed” in the matter related to Provincial Offences Act, s. 50(3) was being discussed.

[6] See: Driedger on the Construction of Statutes at pp. 276-277. At p. 277 the author states:
”. . . A comma before the qualifying words ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone. . . .” Further in the case of Mawson Hotels Ltd. v. Solie, 1997 CanLII 11194 (SK Q.B.) it was observed that ’ In the matter before me there is a comma before the qualifying words, respecting any materials, equipment or appliances used or installed in a building, structure or premises. An application of the rule would lead to the interpretation that the qualifying words apply to all antecedents. Such an interpretation is in conflict with the purpose of the legislation and would lead to an unreasonable
outcome. I find that the placement of the comma leads to an interpretation which conflicts with the purpose of the legislation. Thus the purpose of the legislation must take precedence.per HRABINSKY J

[7] Bell v. Canada (Attorney General), 2001 NSSC

Schedule An Aid to Interpretation

Schedule Part of Statute : Aid to Interpretation

A schedule in an act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part.[1]" It is necessary to analyze the literal meaning of the definitions which are contained in both the schedule and the body of the Act itself in order to clearly identify all the relevant elements.[2]”

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[1] A.G. v. Lamplough (1878) 3 Ex.D. 214 at 229 per BRETT L.J

[2] Nangles [supra]

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Explanatory Memorandum: An Aid To Interpretation

Explanatory Memorandum: An Aid To Interpretation

Explanatory memoranda can be used in order to understand what Parliament intended by a provision.[1]The explanatory notes were referred to in a case before Supreme Court of Western Australia.[2]The history of provision was referred to citing the case of Worthington v The State of Western Australia[3] in which case the history along with the explanatory notes, leading to the passing of the transitional provision which was introduced into the Sentencing Act 1995 by the Sentencing Legislation Amendment and Repeal Act 2003, was looked into by the Court. The explanatory notes to the Sentencing Legislation and Amendment Repeal Bill 2002 said about cl 2 of the transitional provisions:

"As a result of the changes to the Sentencing Act 1995 contained in Division 4 of Part 2 of the Sentencing Legislation amendment and Repeal Bill 2002, offenders will have to serve a greater proportion of their sentence before they are either considered for parole or released from custody. As foreshadowed in the Report of the Review of Remission and parole it is not intended that offenders would serve any longer time in custody than is presently the case.

In order to achieve this it is necessary for court to adjust the sentence they intended to impose to ensure that offenders do not serve any more or any less time in custody. Clause 2(2) gives effect to this intent by requiring courts to adjust their sentences. However, there will be occasions when courts will not have to adjust sentences and these occasions are set out in subclauses (5) and (6)."

"But it may be appropriate to consider the Explanatory Memorandum and the Second Reading Speech for the purpose of identifying the mischief which s 357A [the provision of the Migration Act 1958 (Cth) his Honour had to construe] was intended to address, as part of the general law purposive approach to statutory interpretation, and in the course of doing so to identify the purpose or object underlying the Act for the purposes of s 15AA.[4]”

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[1] Transport Workers' Union of Australia and another re The City of Stirling Enterprise Bargaining Agreement 2003 - Domestic Collections - PR940087 [2003] AIRC 1403 (13 November 2003

[2] YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)per MARTIN CJ

[3] Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

[4] Cf Saraswati v The Queen (1991) 172 CLR 1 at 21 per McHUGH J

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Section: An Aid to Interpretation-

Interpreting a Provision/

Choices of Interpretation

It is the obligation of the court to seek to identify an interpretation of the section which leads to a certain rather than an uncertain consequence.[1]

Same word Same Meaning Rule

There is a presumption against a change of terminological usage: " It is a sound rule of construction to give the same meaning to the " same words occurring in different parts of an Act of Parliament[2]."

“I think that the sub-section is neither self-contradictory nor repugnant to the other provisions of the Act, and that, as regards the words themselves, they are unambiguous, comprehensive, and imperative.Were they ambiguous, other sections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and so produce error. And of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament "looking before and after," having in view the past history of a question and the future consequences of its language, must have meant something different from what it said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed. I therefore agree entirely with my noble and learned friend LORD MACNAGHTEN in his view of this case.[3]”

Making a general statement about the interpretation LORD REID observed :

“Construction of the provisions of an Act is for the Court and for no one else. This may seem technical but it is good sense. Occasionally we can find clear evidence of what was intended, more often any such evidence, if there is any, is vague and uncertain. If we are to take into account evidence of Parliament's intention the first thing we must do is to reverse our present practice with regard to consulting Hansard.[4].”

The words of a section heading cannot be used to restrict the terms of the section itself, if they are clear. But where, as here, those terms lend themselves to different meanings, I agree with what Lord Reid said in Director of Public Prosecutions v Schildkamp.[5]

"[I]t may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to everything found in the printed Act. I say more realistic because in very many cases the provision before the court was never even mentioned in debate in either House, and it may be that its wording was never closely scrutinised by any member of either House. In such a case it is not very meaningful to say that the words of the Act represent the intention of Parliament but that punctuation, cross-headings and side-notes do not.

... I would not object to taking all these matters into account, provided that we realise that they cannot have equal weight with the words of the Act ... A cross-heading ought to indicate the scope of the sections which follow it but there is always a possibility that the scope of one of these sections may have been widened by amendment." {per Lord SIMON]

Section helps in arriving at the intent of the legislature

“Examination of the other provisions of the statute in question (or of other statutes in pari materia) for the light which they throw on the particular words which are the subject of interpretation.[6]”

Singular to be read as plural

The Interpretation Act, 1937 provides that "every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural"

Construction through Sub-Section

Before looking at the language of the sub-section., it may be useful to consider what this contention involves.[7]

Definition Clause

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense—or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way[8]. Definition sections must be read and accommodated with the rest of the enactment.[9]

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[1] Nangles [supra]

[2] Per LORD SIMON of GLAISDALE in Black v. Clawson citing from Cleasby B. in Courtauld v. Legh (1869) L.R. 4 Ex. 126, 130).

[3] Vacher & Sons Ltd v London Society of Compositors [1912] UKHL 3 per LORD SHAW OF DUNFERMLINE.

[4] Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2 (05 March 1975)
URL: http://www.bailii.org/uk/cases/UKHL/1975/2.html
Cite as: [1975] UKHL 2, [1975] AC 591 [per LORD REID}

[5] [1971] AC 1 at 10. See also Maxwell on the Interpretation of Statutes, 11th ed (1962) at 48-49; Singh, Principles of Statutory Interpretation, 9th ed (2004) at 152-153.

[6] Ealing London Borough Council v Race Relations Board [1971] UKHL 3 (16 December 1971)
URL: http://www.bailii.org/uk/cases/UKHL/1971/3.html
Cite as: [1972] AC 342, [1971] UKHL 3, [1972] 2 WLR 71[per LORD SIMON OF GLAISDALE]

[7] Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2 (05 March 1975)
URL: http://www.bailii.org/uk/cases/UKHL/1975/2.html
Cite as: [1975] UKHL 2, [1975] AC 591[per LORD WILBERFORCE]

[8]Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635

[9] Gidaro v Secretary, Department of Social Security (1998) 154 ALR 550 at 561; Taylor v Public Service Board (1976) 10 ALR 211 at 215

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