Day: October 29, 2014

Vocābulārium

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By Jenneth Hogan

latin
CASUS OMISSUS   [L. casus + omittere / to omit, leave out]
A litigation which arises because a statute has failed to cover a particular issue which must then be decided by the courts. An issue or set of circumstances which is not covered by (inadvertently omitted from) a statute and is therefore left to be interpreted and decided under common law principles by the court.
 

In a world that seems to be constantly changing, with new developments popping up left and right, there are bound to be omissions and loopholes found in legislation. No legislation can lucidly and specifically address all matters without any uncertainty as words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time. There also has to be room made for unforeseen situations, new technologies and cultures/special interest groups.

Statutory interpretation is crucial under these circumstances in order to resolve those ambiguities and decide how a particular bill or law will apply in a particular case. It is the duty of the judiciary to interpret the legislation without adding or implying anything that was not the clear intent of the lawgiver, at the time the legislation was produced.

There seems to be several rules provided in the past for this interpretation. They are as follows:

The plain meaning rule: The plain meaning rule states words of the statute are to be given their natural or ordinary meaning. This rule tends to be rather controversial as the strict application can sometime result in absurd outcomes. An example of such can be seen in R v. Harris (1836) where the defendant had bit off his victim’s nose. Because the statute made it an offence ‘to stab cut or wound’ the court held that under the plain meaning rule the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. The defendant’s conviction was overturned.

The golden rule: The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous.

This was propounded in Grey v. Pearson (1857) where Lord Wensleydale stated

“ In construing… statutes… the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther.” 1

The degree of absurdity or ambiguity necessary to exercise the golden rule is determined on a case by case basis by the individual judge in question.

The mischief rule: In Construction of Statutes, Elmer Driedger defines the mischief rule as follows:

“ A statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it.” 2

The mischief rule has a narrower scope than that of the golden rule or the plain meaning rule, in that it can only be used to interpret a statute where the statute was passed to remedy a defect in the common law. In applying the rule, the court is essentially asking the question: what was the “mischief” that the previous law did not cover, which Parliament intended to remedy when it was passed? Legislative intent can then be determined by examining secondary sources such as law review articles and corresponding statutes and gives the judge more discretion than the previous set of rules.

In Canada, most judges prefer to rely on Driedger’s approach, referred to as “the modern principle” of statutory interpretation. This approach has since been endorsed by the Supreme Court of Canada in a number of cases including Rizzo & Rizzo Shoes Ltd (Re), [1998] [1] where Justice Iacobucci, speaking for the whole court, wrote the following:

“ Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

 

References

Driedger, E.A. Construction of Statutes. Butterworth & Co. (Canada) Ltd., 1983

Emanuel, Lazar. Latin for Lawyers: The Language of the Law (New York: Aspen Publishers, 1999).

http://en.wikipedia.org/wiki/Purposive_approach

 

[1] Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale

[2] Driedger, E.A. Construction of Statutes. Butterworth & Co. (Canada) Ltd., 1983, p. 1

Book Review – Federal Access to Information and Privacy Legislation Annotated 2015

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By Alan Kilpatrick

BkRevPrivacyLegFederal Access to Information and Privacy Legislation Annotated 2015
By Michel Drapeau and Marc-Aurèle Racicot
Carswell, 2014
2900 pp.

 

The Law Society of Saskatchewan Library recently added the 2015 edition of Federal Access to Information and Privacy Legislation Annotated to its collection.  The library carries a complete set of annual annotated editions of this item back to 2002.  Carswell highlights this book on its website,

A key publication by two of the country’s leading access and privacy lawyers.  Comprehensive in scope, it contains everything you need to interpret and apply federal access to information and privacy legislation. In addition to expert analysis, this practical reference contains a compendium of key materials.

New in the 2015 Edition: 

  • Porter Airlines Inc. v. Canada (Attorney General) (2014 FD 394): In an application dealing with requests for access to information, the Court concluded that the government’s prior inadvertent disclosure of any document cannot undermine its confidentiality with respect to the exemption under s. 21(1)(b). Even if a prior inadvertent disclosure were envisioned by the three prong test in Air Atonabee, the prior disclosure relied upon by the Department cannot undermine the confidentiality of the disputed information, because the two do not completely overlap.
  • Information Commissioner of Canada v. Canada (Attorney General) (2014 FC 133): The Court found that it was arguable that Parliament intended advisory bodies such as the Commissioner to have the right to refer to the Court for determination issues of law that arise throughout the performance of their duties.
  • Llewellyn v. Canadian Security Intelligence Service (2014 FC 432): Regarding the standard of review, the Court noted that the review is a two-fold process. First, under a standard of correctness, the Court must determine whether the withheld information is exempt under the Act. Then, under a standard of reasonableness, the Court must determine whether the government institution appropriately exercised its discretion not to disclosure said information.

 Please stop by the Law Society of Saskatchewan Library in Regina if you are interested in checking this item out. Call Number: KF 5753.D76 2015.

 

In the Legal Sourcery book review, new, thought-provoking, and notable library resources are reviewed. If you would like to read any of the resources reviewed, please contact our library at reference@lawsociety.sk.ca or (306) 569-8020. Let us know if there is a book you would like reviewed.

 

“The trial was like a physical deformity…”

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By Melanie Hodges Neufeld

The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, 2014 ONSC 5831

This case is a hefty read at 326 pages, but is so chock-full of gems that it is worth it. I had a difficult time picking a few examples to share. Reading the Table of Contents alone should give you a chuckle. Here are the first few paragraphs to give you a taste:

[1] Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.

[2] The story concerns the 2006 purchase and sale of a business – specifically, a hearing clinic. How difficult could that be? Two experienced multiple-clinic owners, each represented by a lawyer and with the almost-daily (sometimes hourly) assistance of chartered accountants, put together a transaction with more loose ends than a badly knit sweater.

[3] I have found it impossible to articulate a helpful overview of this trial. Sitting atop the evidence here is like scaling a very, very high mountain only to find that, when one reaches the summit, one is too far from everything to see anything. The best that I can do is say that the core of the case is the allegation that the individual defendants and their accountant knowingly made fraudulent misrepresentations and withheld information, such that the plaintiff overpaid for the hearing clinic. General damages are sought. It is further alleged that the defendants intentionally committed certain acts (said to be acts of bad faith and improper conduct bordering upon fraud) that impeded the transfer of assets, 2014 ONSC 5831 (CanLII)4 The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al. constituting breach of contract, and thereby caused the plaintiff to suffer specific financial losses.