Declaratory legislation: legislatures in the judicial domain?
The separation of powers has a complex and contradictory history as a legal principle in Canada. Some academics have outright denied its existence by pointing to Canada's inheritance of the Westminster parliamentary system with its overlap between the executive and the legislature as evidence that there can be no strict separation of powers in the Canadian legal system. One administrative-law textbook, for example, simply states, "[t]he principle of separation of powers does not apply in Canada." (1) The Supreme Court of Canada also denied its existence in the pre-Charter era. In its 1981 judgment in Reference re Residential Tenancies Act (Ontario), (2) Dickson J. (as he then was), writing for a unanimous Supreme Court, held that the "Constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function." (3) Only four years later, the newly elevated Dickson C.J. held, again for a unanimous Supreme Court, that "[t]here is in Canada a separation of powers among the three branches of government--the legislature, the executive and the judiciary." (4)
Since the time of this reversal and endorsement by the Supreme Court of Canada, the separation of powers has blossomed in the case law. A reading of these cases, however, indicates that the substantive meaning of the principle remains unsettled and may be used by courts in different ways. The separation of powers, for example, can play a supporting role in the interpretation of other legal rights, especially constitutional rights. The Supreme Court has held that the separation of powers reinforces the independence of the judiciary (5) and the division of powers between the federal and provincial governments. (6) Outside of this supporting role, the separation of powers appears to be limited in terms of its own legal force. It cannot be invoked by the executive to avoid contractual obligations to civil servants when the legislature terminates their employment. (7) Nor can it be used to attack primary legislation unless that legislation significantly interferes with the relationships among the institutions of government. (8)
Canadian courts have most frequently invoked the separation of powers to impose limits on the judiciary in favour of other branches of government--by deferring to, for example, the legislature in fashioning a constitutional remedy to a Charter breach, (9) the executive in exercising prosecutorial discretion when filing criminal charges, (10) and the legislature in exercising its privileges regarding its own internal functioning. (11) In these cases, the separation of powers has been invoked to adopt a position of judicial deference to the executive or legislature. The recent case of Ontario v Criminal Lawyers Association of Ontario continues this theme with a majority of the Supreme Court finding that the branches of government had evolved "certain core competencies". (12) Given the emergence of these competencies, the judicial branch must be sensitive to the proper functioning of the executive and legislature in order to avoid upsetting the "balance of roles, responsibilities, and capacities". (13) The majority went on to admonish trial judges for fixing compensation rates for amicus curiae to be paid by the government, as those orders would disregard the separation of powers and could weaken public confidence in the judiciary. (14)
Although the Supreme Court of Canada did not refer to the separation of powers in its recent judgment in Regie des rentes du Quebec v Canada Bread Company Ltd, (15) the case deals squarely with the roles of the legislative and judicial branches. The case is a renaissance of sorts for parliamentary sovereignty. In the judgment, a majority of the Supreme Court adopted a deferential approach to declaratory legislation, a special form of legislation that directs a particular interpretation of an already existing statute. The legal reasoning by which this result was accomplished, however, further muddies the waters of the principle of separation of powers in Canadian law. Specifically, the majority characterized the legislature as a court that enters the judicial domain and sets out its preferred interpretation of statutory law. While a means of achieving the result in this case, the judicial treatment of a legislature as a court when it enacts declaratory legislation neglects important institutional differences between legislatures and courts. Future cases applying declaratory legislation should see such enactments as a special category of retroactive legislation enacted by the legislature to direct an interpretation of its own law to achieve a particular economic or social policy, which is distinct from the judicial search for meaning in interpreting legislation. This approach would treat legislatures as legislatures and respect the institutional capacities and responsibilities of each branch of government in support of the Supreme Courts recent articulation of the separation of powers in Canadian law.
II. DECLARATORY LEGISLATION AND CANADA BREAD COMPANY
Declaratory legislation is enacted either in response to a court judgment, where the legislature seeks to change the judicial interpretation of statutory law, or in anticipation of the judicial consideration of potentially ambiguous legislation. Declaratory provisions are unique in the sense that they are treated by the courts not as substantive changes to the law but rather as clarifications to establish the true meaning of already existing legislation. In other words, declaratory legislation changes only the form of legislation and not its substance. (16) This view of declaratory legislation is rooted in the belief that there is a "correct" interpretation of legislation, which presumably is known to the legislature that made the law in the first place (although its original formulation of the legislation may not have expressed this meaning clearly). The idea is that the legislature may respond to judicial interpretations of its laws in order to correct judicial error. (17)
Declaratory legislation is also unique due to its retroactive effect, which is implicit in its enactment. Courts apply declaratory provisions back to the time when the original legislation was enacted on the basis that the legislature simply clarified what it had really meant all along. (18) Due to this retroactivity, declaratory legislation also applies to pending cases before the courts until those cases are finally decided and potential avenues of appeal exhausted. The point in time that a case becomes final and therefore beyond the reach of retroactive declaratory legislation is not always clear due to a complex mixture of legislative developments and multiple rounds of litigation on different issues in a case and before different adjudicatory bodies, which became the main point of contention between the majority and minority of the Supreme Court of Canada in Canada Bread Company.
In Canada Bread Company, the legislation at issue was Quebec's Supplemental Pension Plans Act, (19) which regulates and establishes minimum standards for employee pension plans where the employer falls under provincial jurisdiction. (20) The Regie des rentes, a statutory body responsible for administering the Act, found that the terms of a multi-employer pension plan were not compatible with the requirements of the Act, which took priority over conflicting plan terms. In this case, a partial termination of the pension plan was carried out as the result of a bakery closing two of its divisions. In connection with the partial termination, the employer sought to reduce the benefits of affected pension-plan members on the basis that the plan's terms authorized benefit reductions in the event of a funding deficiency. The Regie, however, found that the Act imposed a statutory liability on the employer to fully fund employee pensions and that the conflicting terms of the plan were overridden by the statutory requirements. On review, the decision of the Regie was upheld by the Administrative Tribunal of Quebec and the Superior Court, but was later reversed by the Quebec Court of Appeal, which took a different view of the employer's liability under the Act and ordered the Regie to review its decision in accordance with the Court of Appeal's interpretation.
Following the decision of the Quebec Court of Appeal, the National Assembly of Quebec unanimously enacted declaratory legislation establishing that employers were required to fund pension-plan shortfalls and could not make benefits conditional on extrinsic factors. At the committee stage, the responsible minister stated,
the purpose of this amendment is to counter the effects of the judgment rendered by the Quebec Court of Appeal.... With respect for the court, that judgment is based on an interpretation of the Supplemental Pension Plans Act that is incompatible with the Act's objectives. (21)
Leave to appeal the Court of Appeal's judgment was dismissed by the Supreme Court of Canada, and the Regie commenced the reconsideration of its original decision as directed by the Court of Appeal. Instead of applying the Court of Appeal's interpretation of the Act, however, the Regie turned to the new declaratory legislation that had been enacted by the National Assembly. The declaratory provisions confirmed the Regie's original interpretation of the Act, and the Regie concluded again that the employer was liable to pay the funding deficiency in relation to the employees affected by the partial termination of the pension plan. This decision of the Regie was upheld by the Administrative Tribunal of Quebec but later reversed by a judgment of the Superior Court on judicial review, which was sustained by the Court of Appeal.
A five-judge majority on a seven-judge panel of the Supreme Court of Canada upheld the Regie's decision to give effect to the new declaratory legislation instead of following the Quebec Court of Appeal's interpretation of the Act. Writing for the majority, Wagner J. provided wide latitude to the legislature in directing the interpretation of its own legislation. The judgment begins by noting that judicial deference is appropriate in the context of declaratory legislation since the legislature is presumed to have weighed the need for interpretive clarity against any disruption to settled expectations and unfairness that might result from its retroactive application. (22) According to Wagner J., the legislature makes an excursion into the judicial domain when it directs an interpretation of statutory law and "assumes the role of a court", which has the effect of making declaratory legislation operate like the jurisprudence of a higher court. (23) As jurisprudence, declaratory provisions create a binding precedent that operates to overturn conflicting judicial interpretations of the legislation. (24) Declaratory legislation also applies retroactively because the original legislation is deemed to have always included the declaratory provisions. (25)
In considering the effect of declaratory legislation on ongoing litigation, the key issue in the case, Wagner J. held that declaratory provisions applied to pending cases until the court made a "final judgment that ultimately determines the rights and obligations of the parties" and all avenues of appeal were exhausted. (26) At that point the case could no longer be described as pending, and declaratory legislation could not reopen the litigation. (27) In other words, declaratory legislation would apply until the case was finally determined, not merely an issue in the case. (28) In creating this distinction between the case and issues in the case, Wagner], distinguished res judicata, a common-law doctrine that applies more broadly to prevent parties from relitigating a case, and any issues in a case, once subject to a final court judgment. (29) However, res judicata could not operate to prevent the legislature from enacting a declaratory law to negate the determination of an issue in a case that was still before the courts, which could be seen as the intention of the legislature in this instance. (30) In arriving at this conclusion, Wagner J. gave significant weight to the circumstances surrounding the enactment of the declaratory legislation to specifically counter the legal effect of the Quebec Court of Appeal's judgment, writing that the courts should not ignore such clear legislative intention. (31)
In applying his analysis of declaratory legislation to the facts of the case, Wagner J. found that the judgment of the Quebec Court of Appeal on the interpretation of the Act had acquired the status of res judicata, having the authority of a final judgment. (32) Elowever, the Court of Appeal only determined one issue in the case, that being the question of law relating to the employer's statutory obligations to fund employee pensions. The Court of Appeal had sent the case back to the Regie to be reconsidered in accordance with its directions. It had therefore not fully and definitively determined the rights and obligations of the parties. (33) The case remained pending following the enactment of the declaratory legislation, and it was therefore open for the adjudicatory body responsible for making the final determination of the rights and obligations of the parties (in this case the Regie) to apply the declaratory provisions. (34) Although the Court of Appeal had instructed the Regie to make its decision in accordance with its new judicial interpretation of the Act, the declaratory legislation was an intervening act that set aside the Court of Appeal's interpretation and made it bad law. (35) In effect, the declaratory legislation operated like the jurisprudence of a higher court to negate the effect of stare decisis in relation to the Court of Appeal's directions that would have otherwise bound the Regie. (36) It had become new binding precedent on the question of the employer's funding obligations under the Act. (37)
In dissent, McLachlin C.J., writing for herself and Fish J., focused on the implications of the judgment for the standing of the judicial branch as compared to subordinate decision makers. According to the dissent, the majority decision would allow administrative bodies to "second-guess the final judgment of a court of inherent jurisdiction regarding the legality of its ensure that actions are taken in conformity with the Act, which he saw as supporting the obligation to take into account the declaratory legislation: (ibid at para 48). decisions", which undermined judicial review and threatened the rule of law. (38) Under the majority approach, subordinate decision makers could disregard clear instructions from supervising courts and revisit issues that had already been decided by judges. (39) While McLachlin C.J. agreed with the majority that declaratory legislation had a retroactive effect and applied to pending cases, it should not be used to reopen issues already decided by courts except where clear statutory language extinguished the effect of res judicata, which was not the case in the declaratory provisions enacted by the National Assembly of Quebec. (40) Res judicata prevented parties from relitigating an issue that was judicially determined for public-policy reasons, which should extend to the application of declaratory legislation to settled issues in a case. (41) According to the dissent, the majority's approach would create legal uncertainty and unfairness to litigants by treating entire cases as pending as long as there was any issue, no matter how trivial, left to be determined." (42)
In looking at the facts of the case, McLachlin C.J. noted that, when the declaratory legislation was enacted by the National Assembly of Quebec, the Supreme Court of Canada was the only court seized of the matter by way of an application for leave to appeal. (43) When the Supreme Court dismissed the leave application, the issues before the Quebec Court of Appeal acquired res judicata status with respect to the interpretation of the employer's funding obligations under the Act. (44) Although the declaratory legislation meant that the Court of Appeal's judgment would become bad law in future cases, the issue of the employer's statutory liability was already conclusively settled between the parties in this case. (45) The only matters left for the Regie to determine were the "rather clerical tasks" of computing the monetary liability of the employer in accordance with the Court of Appeals ruling on the employer's statutory liability. (46) It was not open to the Regie to reconsider the interpretation of the Act. (47) According to the dissent, the Regie effectively revised the Court of Appeal's judgment, circumvented judicial review, and put itself on an equal footing with the judicial branch that holds supervisory power over it. (48)
III. DO LEGISLATURES REALLY BECOME COURTS?
In Canada Bread Company, a majority of the Supreme Court of Canada found that the National Assembly of Quebec had assumed the role of the court when it enacted declaratory legislation to set forth its interpretation of employer funding obligations under the Supplemental Pension Plans Act, a point not rejected by the dissenting judges. Specifically, the majority used this characterization as the means to treat declaratory legislation as legal precedent that would bind other decision makers, including courts and administrative bodies that must apply the correct interpretation of the law in any pending case. Similar in status and legal effect to the jurisprudence of a higher court, the majority held that declaratory legislation negated the principle of stare decisis in relation to any conflicting judicial interpretation of the original legislation by making it bad law. The treatment of the legislature as a court in enacting declaratory legislation provided the majority with a convenient way to achieve the result that it sought in this case. It is, however, a questionable proposition.
As a starting point, the reasoning of the majority is internally inconsistent, as it suggests that the legislature is not even engaged in an interpretive process when it enacts declaratory legislation, given that it merely clarifies what it meant to say all along. How then can the legislature be seen to act like a court engaged in a genuine search for meaning? Not only is this legal fiction incoherent, it is troubling that the majority casually characterized the legislature as a court, as this approach ignores important institutional differences between legislatures and courts. A legislature directing an interpretation of its own law is not equivalent in function, form, or purpose to a court. In crafting legislation, including declaratory provisions, the legislature operates under its own unique decision-making process, one that takes place within an institutional framework designed for political representation and compromise. It also has a different purpose: Unlike judges interpreting legislation, the legislature does not apply the ordinary rules of statutory construction when it enacts declaratory legislation. Instead, the legislature directs an interpretation of its laws in order to achieve a particular economic or social policy desired by its elected members. The danger in seeing the legislature as a court is that the results-oriented motive of the legislature in casting aside judicial precedent is forgotten, which wrongly supplies declaratory legislation with an objective quality when it is actually the expression of a policy preference. By contrast, unelected courts strive to maintain perceptions of impartiality when engaged in the interpretive process with a strong emphasis on carrying forward legislative intent as opposed to judicial policy preferences. (49) Ignoring the different decision-making processes and motivations of legislatures and courts fails to respect the roles, responsibilities, and capacities of these institutions, which allow them to contribute to the development of the law.
In terms of its decision-making process, the legislature does not determine the meaning of its own law in a manner that can be said to resemble the process of judicial interpretation of legislation. The courts interpretive function lies at the very heart of the judicial enterprise; it is difficult to conceive of a feature more important to the existence of the court than its skill and expertise in interpreting sources of law, which is a complex endeavour. (50) In the foreword to the fifth edition of her leading text on the construction of statutes, Professor Sullivan writes about the interpretive method of Canadian courts, observing that judges find legislative meaning by considering a variety of factors, including "textual meaning, legislative intent and accepted legal norms." (51) In searching for the best possible interpretation in the circumstances, judges hear different views on how legislation should be interpreted from advocates in an adversarial contest. Good arguments may be made on either side, and the interpretive process must balance a number of factors in arriving at an outcome. But what makes the interpretive function of the courts unique as compared to the legislature is the standing of the judge in holding a significant degree of independence from the other institutions of government, and the political consequences of their decisions. Judges are seen as neutral and impartial to the extent that they are not seen as gaining or losing from selecting one interpretive outcome over another. This quality of independence promotes a sense of fairness that encourages members of society, most importantly losing litigants, to accept the judicial interpretation of legislation. (52)
The legislature, by contrast, is an elected and deliberative lawmaking body. Decision making in the legislature involves debate and compromise among a large group of members where individuals represent different constituencies and views. While the enactment of legislation is also a balancing exercise, it is a balance of the political interests of at least a majority of legislators who seek to achieve a particular economic or social policy. There is no reason to believe that this balancing process does not apply in relation to the enactment of declaratory legislation, given that such provisions are made through the ordinary legislative process. The purpose of the legislature in enacting declaratory legislation differs from the purpose of the independent courts in interpreting legislation. Legislation is created to implement policies desired by electoral constituencies, and legislators craft laws that are most expedient to achieving preferred policy goals to attract electoral support. It is clear that this policy-oriented purpose extends to declaratory legislation. In the case of Canada Bread Company, the National Assembly of Quebec enacted declaratory provisions to ensure that private employers would be financially responsible for the cost of pensions that they had promised to employees, which was an important policy to the Quebec electorate since all members of the legislature voted in favour of the declaratory provisions.
The judgment of the Supreme Court of Canada in Canada Bread Company is a welcome restatement of the legal effect of declaratory legislation. Based on the reasoning of the majority, considerable judicial deference will be provided to legislation that the court sees as declaratory. Declaratory legislation will be applied retroactively back to when the original legislation that it seeks to clarify came into force. It also applies to pending litigation before a decision-making authority where a final judgment has not ultimately determined the rights and obligations of the parties. Under the approach outlined by the majority of the Supreme Court, pending cases are those where all avenues of appeal are not fully exhausted or where at least one issue remains live in the case. As demonstrated in Canada Bread Company, any live issue may be sufficient to keep the entire case pending and therefore vulnerable to the effect of declaratory legislation. This broad legal effect on litigation may encourage the legislature to create more declaratory legislation, given that such provisions are often reactions to politically significant cases working their way up the judicial ladder. Declaratory legislation therefore provides an opportunity for the legislature to direct the outcome in such cases. It might also prove more politically expedient, as it applies retroactively based on judicial presumption, and therefore no express legislative statement of retroactivity is necessary.
Of note as an example is a recently passed declaratory amendment to the Supreme Court Act, (53) introduced by the federal government that seeks to validate Justice Marc Nadon's appointment to the Supreme Court of Canada from the Federal Court of Appeal and not a Quebec court. The declaratory legislation seeks to avoid constitutional amendment concerns by offering a clarification that judges are qualified for appointment if they have been a barrister in a province for a period of at least 10 years at any time in the past, and in the case of a Quebec barrister, such a person may be counted toward the three judges guaranteed by the Act to Quebec. (54)
Despite the important restatement of the operation of declaratory legislation, it is unfortunate that the majority in Canada Bread Company characterized the legislature as a court in enacting declaratory legislation. While this approach provided the majority with a convenient way to think about declaratory legislation in terms of its interaction with judicial interpretations of legislation and the legal doctrines of resjudicata and stare decisis, the analogy is internally inconsistent and ignores important institutional differences between legislatures and courts. Treating the legislature as a court in relation to the core judicial function of interpretation neglects the unique decision-making process and motivation of the legislature in enacting declaratory provisions that direct an interpretation of its law. It also confuses the meaning of the principle of separation of powers in Canadian law, as it does not align with recent Supreme Court jurisprudence that each branch of government has developed certain core competencies that must be respected by the other branches.
It was unnecessary to see the legislature as operating like a court when it enacted declaratory legislation in Canada Bread Company. The same result could have been achieved by seeing the legislature as a legislature and declaratory legislation as a special category of retroactive legislation, as opposed to jurisprudence, which would have avoided the legal fiction that a later legislature clarified the original intention of an earlier legislature, an implausible assertion especially following a long period of time or a change in government. This preferred approach to interpreting and applying declaratory legislation would respect the institutional functioning of both the legislature and the court and avoid impairing the coherence of the separation of powers.
The enactment of declaratory legislation is not like a judicial search for meaning, but an interpretive direction to achieve a certain economic or social policy, which operates retroactively and takes priority over conflicting judicial interpretations as primary legislation under the doctrine of parliamentary sovereignty. Given that the judicial treatment of declaratory legislation is a presumption under the proposed approach, courts maintain the power to articulate limits to its operation (which at present seem almost non-existent). While constitutionally valid declaratory legislation undoubtedly has prospective application, and can make conflicting judicial interpretations bad law going forward, courts should ask two questions when considering the retroactive legal effect of declaratory legislation. First, is the declaratory provision directed at what could be reasonably considered an ambiguous legislative provision? Second, does the declaratory provision advance a plausible interpretation that could be reconciled with the original legislative text ? Both of these questions should be answered in the affirmative in order for the courts to apply the judicial presumption of retroactivity, which would place important limits on the legal effect of declaratory legislation in the absence of clear statutory language. In other words, if a legislature originally enacted legislation to say the sky is blue, a later legislature could not enact declaratory legislation to say the sky is red with retroactive effect outside of express statutory wording. In addition to better supporting legal certainty and the rule of law, these limits on the judicial presumption relating to declaratory legislation would help address concerns about the executive influencing the legislature in order to take advantage of the judicial treatment of declaratory legislation by bringing about substantive legal change through declaratory provisions.
There is already strong support for adopting the proposed approach to declaratory legislation, as the Supreme Court of Canada has treated the legislature like a legislature in other cases relating to parliamentary privilege where the legislature really does act like a court in terms of its form, function, and purpose. (55) The proposed approach of seeing the legislature as engaged in a legislative function in enacting declaratory legislation would nurture the recent articulation of the separation of powers by the Supreme Court in Ontario v Criminal Lawyers' Association of Ontario, and encourage an institutional relationship between a legislature and a court that respects the roles, responsibilities, and capacities of each institution and the contributions that each can make to the development of the law.
(1) David Phillip Jones & Anne S de Villars, Principles of Administrative Law, 5th ed (Toronto; Carswell, 2009) at 27. Although the authors note the decision of the Supreme Court of Canada in Babcock v Canada (Attorney General), 2002 SCC 57,  3 SCR 3 [Babcock], in which the Supreme Court "did not deny that such a principle exists": (ibid).
(2)  1 SCR714at728,123 DLR(3d) 554.
(3) Ibid [emphasis added].
(4) Fraser v Public Service Staff Relations Board,  2 SCR455 at 469,23 DLR(4th) 122 [emphasis added].
(5) See Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island,3 SCR 3,150 DLR(4th) 577,Mackinv New Brunswick (Minister of Finance), 2002 SCC 13,  1 SCR405; Application under s 83.28 of the Criminal Code (Re), 2004 SCC 42,  2 SCR 248; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9,  1 SCR 350.
(6) See Reference re Securities Act, 2011 SCC 66 at para 61,  3 SCR 837.
(7) See Wells v Newfoundland,  3 SCR 199, 177 DLR (4th) 73. Legislation may expressly extinguish contractual obligations of the executive, but it did not do so in this case.
(8) See Babcock, supra note 1 at para 57.
(9) See M v H,  2 SCR 3,43 OR (3d) 254; Canada (Prime Minister) v Khadr, 2010 SCC 3,  1 SCR 44.
(10) See R v Power,  1 SCR 601 at 620-21,623,117 Nfld & PEIR 269.
(11) See New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly),  1 SCR 319,100DLR(4th) 212 [New Brunswick Broadcasting]-, Canada (House of Commons) v Vaid, 2005 SCC 30,  1 SCR 667 [Vaid].
(12) 2013 SCC 43 at para 28,363 DLR (4th) 17.
(13) Ibid at para 30.
(14) Ibid at para 79.
(15) 2013 SCC 46,363 DLR (4th) 197 [Canada Bread Company].
(16) See Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: Lexis-Nexis, 2008) at 659.
(17) This approach operates on the assumption that the legislature has a particular interpretation in mind. However, the legislature may intentionally use general words in legislation as the means to delegate law-making power to the courts in particular cases. See Frank B Cross, The Theory and Practice of Statutory Interpretation (Stanford: Stanford Law Books, 2012) at 6-7; Randal N Graham, Statutory Interpretation: Theory and Practice (Toronto: Emond Montgomery, 2001) at ch 4, 6.
(18) This assumption may be questioned in the event that declaratory legislation is passed by a later and different legislature than the one that enacted the original legislation.
(19) RSQc R-15.1.
(20) Pension plans organized and administered for the benefit of persons employed in connection with certain federal works, undertakings, and businesses are regulated by the Pension Benefits Standards Act, 1985, RSC 1985, c 32 (2nd Supp).
(21) Reproduced in Canada Bread Company, supra note 15 at para 15 [translated by court].
(22) Ibid at paras 1-3.
(23) Ibid at paras 26-27.
(25) Ibid at para 28.
(26) Ibid at paras 29-30, 38.
(28) Ibid at paras 32,40.
(25) Ibid at para 30.
(30) Ibid at paras 24, 40.
(31) Ibid at para 35.
(32) Ibid at para 39.
(34) Ibid at paras 39,42.
(35) Ibid at para 47.
(37) Ibid. Justice Wagner also points to the Regie's statutory duty to apply the correct law and
(38) Ibid at para 50.
(40) Ibid at paras 61-62.
(41) Ibid at para 55.
(42) Ibid at para 56.
(43) Ibid at para 56.
(45) Ibid at para 72.
(46) Ibid at para 61.
(47) Ibid at paras 58,61.
(48) Ibid at paras 66,70,72.
(49) The modern approach to statutory interpretation, endorsed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re),  1 SCR 27 at para 21,154DLR(4th) 193, involves textual, contextual, and purposive analysis that focuses on the intention of Parliament in enacting the legislation.
(50) See e.g. Lori Hausegger, Matthew Hennigar & Troy Riddell, Canadian Courts: Law, Politics, and Process (Don Mills, Ont: Oxford University Press, 2009) at 102-40. In administrative law, the interpretation of legislation by subordinate decision makers has been traditionally seen as a question to be reviewed on a correctness standard by supervising courts due to the expertise of judges in interpreting legislation, although there is an increasing judicial deference to a subordinate decision maker's interpretation of "its own statute or statutes closely connected to its function" to recognize its expertise and familiarity with the legislation: Dunsmuir v New Brunswick, 2008 SCC 9 at para 54,  1 SCR 190.
(51) Sullivan, supra note 16 at vii.
(52) The interpretation of legislation by the judiciary also furthers the rule of law as it takes into account how citizens are likely to read the law from the statute book instead of focusing on a particular policy outcome: see e.g. the approach of Reid J. in one of the classic cases of statutory interpretation discussing whether a mushroom is a vegetable under employment standards regulations in Re Ontario Mushroom Co Ltd et al and Learie et al (1977), 15 OR (2d) 639 at 645, 76 DLR (3d) 431 (Div Ct), where he adopts an interpretive approach that looks to how legislation would be "commonly understood by the persons towards whom legislation is directed."
(53) RSC 1985, c S-26.
(54) See Bill C-4, A second act to implement certain provisions of the budget tabled in Parliament on March 21,2013 and other measures, 2nd Sess, 41st Pari, 2013, cls 471-72 (assented to 12 December 2013), SC 2013, c 40.
(55) For example, where the legislature institutes inquiries, requires the attendance of witnesses, orders the production of documents, or imposes a wide range of penalties (including imprisonment). These privileges are seen as important internal affairs of the legislature and are constitutionally protected from interference by the courts: see e.g. New Brunswick Broadcasting, supra note 11, Vaid, supra note 11.
Lorne Neudorf, Assistant Professor of Law, Thompson Rivers University, Faculty of Law; Member of the Law Society of Upper Canada.
|Printer friendly Cite/link Email Feedback|
|Publication:||University of British Columbia Law Review|
|Date:||Jan 1, 2014|
|Previous Article:||Municipalities and the duty to consult Aboriginal peoples: a case comment on Neskonlith Indian Band v Salmon Arm (City).|
|Next Article:||Policies & prejudice: the mandatory disclosure of liability insurance policies & policy limits in tort litigation in Canada.|