When Courts can Read words in Statute

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,[Blogger]

” 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]

Reasoning and Justification for Adding words into Act


 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.”

 Section 16 of the Interpretation Act states the following Rule of construction

“16. Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act, regulation or provision according to its true meaning.”

He concluded that s. 10(1) of the Act is logically defective because the intention of the Legislature has received imperfect expression to give effect to its intention. One does not know when s. 10(1) will be perfected by addressing lacunae. Because we are dealing with a very young child who has just commenced school, I believe that the circumstances require adoption of the Mischief Rule. Adopting the literal rule in the circumstances of this case, in my view, would not meet the reasonable expectations of practical justice.

He believed that this approach also harmonizes with the Rule of construction set out in s.16 of the Interpretation Act which requires every Act to be considered remedial and to receive the liberal construction and interpretation that best ensures the attainment of the objects of the Act.

In short, I have concluded that there is imperfection or incompleteness in the language used in s. 10(1) and that which is logically defective should be made logically correct. This will give effect to the legislative intent which is, in my view, clearly evident.

He adopted by invoking and exercising the court’s “parens patriae” jurisdiction, to fill the legislative deficiency in the Act which was not in the interest. 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

Shift in trend..Contd..III

The trend towards purposive statutory interpretation

The move away from literalism began over three decades ago. In 1969, the Law Commission of England and Wales, together with the Scottish Law Commission, recommended the adoption of a purposive approach to the construction of statutes.[ The Interpretation of Statutes, Law Com. No. 21 (1969).] The literal approach to revenue statutes had reached its height in Australia in the late 1970s and early 80s under the courts of Barwick CJ, an advocate for liberalism and commercial enterprise. The Whitlam government, at that time, was becoming weary of the tax evasion schemes that were becoming widely practised as a result of the strict approach to interpreting the legislation and therefore strengthened the movement towards a more purposive approach.

By 1981 the move towards the purposive approach in Australia was quite apparent after the commonwealth government introduced section 15AA of the Acts Interpretation Act (Cth). This section effectively set in concrete the purposive approach. It provides:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would

not promote that purpose or object.

Similar provisions have been enacted for individual State Acts Interpretation statutes. It is important to note that this section does not require that the purposive approach always be adopted. It is merely stating that if more than one construction is available, then the one which would promote the purpose of the act would be preferred to any other. Another important fact, which was pointed out in Mills v Meeking, [, when Dawson J, in speaking of a provision in terms almost identical to s 15AA: ‘The approach required by [s 15AA] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction’. This point was presented by Robert Allerdice in ‘The Swinging Pendulum: Judicial trends in the interpretation of revenue statutes’ (1996) 19(1) University of NSW Law Journal 171] is that the provision does not require any ambiguity or inconsistency for its operation, and in this respect it can be differentiated from the mischief rule. It is clear then that the drafting of this provision was a considerable step towards a ‘pure’ purposive approach.

As stated by Kirby J, the last decade has seen numerous cases in which the purposive approach has been favoured, and indeed stated as the method that should be preferred. In Pepper (Inspector of Taxes) v Hart,[ [1993] AC 593.]  the result of which was to impact all areas of statute law, Lord Griffiths stated:

The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of the legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.[ Pepper Ibid 617. 17 [1997] 1 WLR]

Then four years later, Lord Cooke of Thorndon, in IRC v McGuckian[[1997] 1 WLR 991, 1005.], stated:

‘in determining the natural meaning of particular expressions in their context, weight is given to the purpose and spirit of the legislation … If the ultimate question is always the true bearing of a particular taxing provision on a particular set of facts, the limitations cannot be universals. Always one must go back to the discernable intent of the taxing Act.

There have been numerous other cases in which the judiciary has promoted the use of purposive interpretation in preference to the literal approach, both related and non-related to revenue,[ See Cooper Brookes (Woollongong) Pty Ltd v FC of T 81 ATC 4292; Cole v Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541, 549 per McHugh JA; KP Welding Construction Ltd v Herbert (1995) 102 NTR 20, 40-41].18 and this despite the common adoption of the literal approach throughout the 1970s and early 80s. Today’s legal system has clearly adopted the purposive approach to statutory interpretation, that is, an approach that ‘advances and does not frustrate or defeat the ascertained purpose of the legislature’, as suggested by Kirby J.

The practice by judges of ‘reading words into the legislation’ is evident throughout Australian common law.[ Harrison v Nairn Williamson [1976] 1 WLR 1161; Marren v Ingles [1980] 1 WLR 983; FC of T v Ryan (2000) 42 ATR 694; Sweet v Parsley [1970] AC 132.] In Newcastle City Council v GIO General Ltd, [ 1997]it was stated by the High Court that their addition of words was in accordance with the purpose of the Act as expressed in the Act’s preamble. Furthermore, in a Draft Taxation Ruling, the Tax Commissioner ruled it was appropriate to read words into a tax act when failing to do so would result in an ‘incongruous result’. The support of such a practice is expected from the Tax Commissioner. Despite the wide spread practice, the judicial arm is divided as to its use. Gibson LJ, for example, states, ‘the courts function is to interpret the legislation and not legislate under the guise of interpretation’,[ Frankland v IRC [1997] STC 1450, 1455]. and he concludes that it would be ‘impermissible’ for the court to write in words that some may conjecture parliament to have intended. In fairly recent cases, TLC Group LP v Comptroller of Stamps25 and the Federal Court case Australian Tea Tree Oil Research Institute v Industry Research & Development Board,[ [2002] FCA 1127.] the Courts refused to read words into a statute. Before considering why such a practice would be impermissible and the practicality of the purposive approach in interpreting the taxation legislation, what are the approaches of other jurisdictions?.


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