Town of Caledon v. Eagle Demolition & Excavation Inc.

CITATION: Caledon (Town) v. Eagle Demolition & Excavation Inc., 2022 ONCJ 335

DATE: July 20, 2022

Court File #: 0661-999-20-3574

IN THE MATTER OF

Town of Caledon Zoning Bylaw #2006-50

and

the Planning Act, R.S.O. 1990, c. P.13,

and

Between

The Town of Caledon

Prosecutor

and

Eagle Demolition & Excavation Inc.,

Gurdev SIDHU,

and

Jaskaran SIDHU

(No. 2)

Defendants

Ontario Court of Justice

Caledon, Ontario

Quon J. P.

Reasons for the ruling on whether the legislative drafting error or

mistake in s. 11.1 of Zoning Bylaw #2006-50 should be corrected by

the court or left to the Town Council for The Town of Caledon to fix

Issue argued:

Ruling released:

June 15, 2022

July 20, 2022

Counsel:

R. Stracina, prosecutor for the Town of Caledon.

D. Allen, legal representative for the defendants, Eagle Demolition & Excavation Inc.,

Gurdev SIDHU and Jaskaran SIDHU

Cases Considered or Referred To:

Air Canada v. Ontario (Minister of Revenue), [1996] O.J. No. 831, 28 O.R. (3d) 97 (Ont.

C.A.), Morden A.C.J.O., Goodman and Weiler JJ.A.

Aliant Telecom Inc. v. Prince Edward Island (Regulatory and Appeals Commission), [2004]

P.E.I.J. No. 6, 2004 PESCAD 1 (P.E.I.C.A.).

Association of Parents for Fairness in Education, Grand Falls District 50 Branch v. Minority

Language School Board No. 50, [1987] N.B.J. No. 544, 40 D.L.R. (4th) 704 (N.B.C.A.).

Botham Holdings Ltd. (Trustee of) v. Braydon Investments Ltd., [2009] B.C.J. No.

2315 (B.C.C.A.).

Caledon (Town) v Eagle Demolition & Excavation Inc., [2022] O.J. No 2342, 2022 ONCJ

241 (Ont. C.J.), Quon J.P.

Century Services Inc. v. Canada (Attorney General), [2010] S.C.J. No. 60 (S.C.C.).

Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 at 549

(H.L.)

Fleming v. Luxton, [1968] A.J. No. 45, 63 W.W.R. 522 (Alta. Dist. Ct.).

Kehoe v. Artis Builders, [2019] S.J. No. 35 (Sask. C.A.).

Ontario (Minister of Transport) v. Phoenix Assurance Co. of Canada, [1973] O.J. No. 2135,

39 D.L.R. (3d) 481 (Ont. C.A.), Schroeder J.A., affd (1975), 54 D.L.R. (3d) 768, 5 N.R. 73

(S.C.C.)

Morguard Properties Ltd. v. Winnipeg (City), [1983] S.C.J. No. 84 (S.C.C.).

Morishita v. Richmond (Township), [1990] B.C.J. No. 634, 44 B.C.L.R. (2d) 390 (B.C.C.A.).

R. v. Day, [1985] O.J. No. 1798 (Ont. Dist. Ct.), Hurley J.

R. v. DeSousa, [1992] S.C.J. No. 77 (S.C.C.).

R. v. McIntosh, [1995] 1 S.C.R. 686 (S.C.C.).

Rennie's Car Sales and R. G. Hicks v. Union Acceptance Corp. Ltd. [1955] A.J. No. 59, 4

D.L.R. 822 (Alberta Supreme Court, Appellate Division).

ii

Riley v. Columbia Shuswap (Regional District), [2002] B.C.J. No. 1354, 2002 BCCA 374

(B.C.C.A.).

Stock v. Frank Jones (Tipton) Ltd., [1978] 1 All E.R. 948 (H.L.).

Strata Plan BCS 1721 v. Watson, [2018] B.C.J. No. 173 (B.C. Supreme Ct.), Pearlman J.

Summerside (City of) v. Maritime Electric Co. Ltd., [2011] P.E.I.J. No. 24, 2011 PECA 13

(P.E.I. C.A.).

United States of America v. Allard, [1991] S.C.J. No. 30 (S.C.C.).

University Hospital Board v. Boros, [1985] S.J. No. 913, 24 D.L.R. (4^th) 628 (Sask. C.A.).

Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue), [2010] F.C.J. No. 1686,

2010 FCA 294 (F.C.A.), Mainville J.A.

Statutes, Regulations, Bylaws and Rules Cited:

Planning Act, R.S.O. 1990, c. P.13, s. 67.

Provincial Offences Act, R.S.O. 1990, c. P.33, s. 36 and 36(2).

Town of Caledon (Zoning) Bylaw #2006-50, ss. 3.2, 11, 11.1, 11.2, 11.3 and Table 11.1.

www.caledon.ca<<https://www.caledon.ca/en/town-services/resources/Documents/business-

planning-development/zoning-by-law/March-24-2022/Section-11-ACCESSIBLE.pdf.>>

Reference Material Considered or Cited:

Drinkwalter, W.D. and Ewart, J.D. Ontario Provincial Offences Procedure (Toronto,

Canada: The Carswell Company Limited, 1980).

Sullivan, R. Sullivan on the Construction of Statutes, 7th ed. (Markham, Ont.: LexisNexis,

June 2022).

merriam-webster.com:

Dictionary,

online:

merriam-webster.com

website

<<https://www.merriam-webster.com/dictionary/personal>>, definition for “personal”.

iii

iv

REASONS FOR THE RULING ON WHETHER THE LEGISLATIVE

DRAFTING ERROR OR MISTAKE IN S. 11.1 SHOULD BE CORRECTED BY

THE COURT OR LEFT TO THE TOWN COUNCIL FOR THE TOWN OF

CALEDON TO FIX

1. S. 11.1 OF THE TOWN OF CALEDON ZONING BYLAW #2006-50 CONTAINS A

LEGISLATIVE DRAFTING ERROR OR MISTAKE

[1]

Now, if you were to be charged with committing a municipal zoning bylaw offence

under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50, and then downloaded

that bylaw from the Town of Caledon website on the internet to see what the actual

wording of the charge states, you would see the following wording for s. 11.1:

11.1 GENERAL PROHIBITION

No personal shall, within any Environmental Policy Area Zone, use any land, or

erect, alter, enlarge, use or maintain any building or structure for any use other than

as permitted in Table 11.1 of Subsection 11.2 and in accordance with the standards

contained in Table 11.2 of Subsection 11.3, the General Provisions contained in

Section 4 and the Parking, Loading & Delivery Standards contained in Section 5.

[2]

From this downloaded version of the Town of Caledon Zoning Bylaw, you would see

that you have been charged with contravening a municipal bylaw that states, “’No

personal’ shall, within any Environmental Policy Area Zone, use any land, or erect,

alter, enlarge, use or maintain any building or structure for any use other than as

permitted in Table 11.1 of Subsection 11.2 …”. But now after reading the wording of

the prohibition stated in s. 11.1, you would be likely be scratching your head and

wondering what the phrase “ no personal” means in the context of that provision, so

you then look at the definitions section in s. 3.2 of that downloaded Zoning Bylaw, but

there is no definition for the word, “personal”, set out in that section. The closest word

that you find to the word “personal” is the word “Person” which is defined in s. 3.2, as

“any human being, association, firm, partnership, incorporated company, corporation,

agent or trustee, and the heirs, executor or other legal representatives of a person to

whom the context can apply”. However, s. 11.1 does not refer to the noun “person”

but to an adjectival word, “personal”. But if the word “personal” were to be used as a

noun in s. 11.1, then as found in the Merriam-Webster online dictionary¹, it would

1

merriam-webster.com: Dictionary, online: merriam-webster.com website <<https://www.merriam-

webster.com/dictionary/personal>>, definition for “personal”:

personal adjective

per·son·al | \ ˈpərs-nəl , ˈpər-sə-nəl \

Definition of personal

(Entry 1 of 2)

1

mean, “a short newspaper paragraph relating to the activities of a person or a group

or to personal matters” or “a short personal communication in a special column of the

classified ads section of a newspaper or periodical”. However, you may be pondering

that s. 11.1 seems to be about prohibiting uses of land in an Environmental Policy

Area Zone in the Town of Caledon unless the use is specifically listed in s. 11.2 of the

Zoning Bylaw, but that s. 11.1 as it is worded does not appear to have any connection

to a short newspaper paragraph or related to a short communication being used as a

classified ad.

[3]

However, under s. 3.2 there is also the term, “Personal Service Shop”, defined as “a

premises where health and grooming services are provided and may include a spa, a

barber shop, a beauty salon, a dressmaking shop, a tailor, a pet grooming facility, a

photographic studio, or similar use.” If s. 11.1 were to be about “Personal Service

Shops” then s. 11.1 would be an intelligible and plausible provision. Ergo, was the

intention of Town Council for the Town of Caledon for s. 11.1 to be about Personal

Service Shops as the entities that were required to comply with s. 11.1, but due to the

drafting error or mistake, the two words, “Service Shop” were mistakenly omitted after

the word “personal”?

[4]

But to you, s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 in its present form

is nonsensical. You must also be wondering if you could be convicted under a

municipal bylaw containing wording that makes no sense. The answer to that

question is not black-and-white and will depend on whether the court can legally

correct the legislative drafting error or mistake in that provision by effectively rewriting

s. 11.1 so that the intention of the municipal or town council who enacted that

impugned bylaw can be properly expressed for s. 11.1, if their intention can be actually

determined. Furthermore, the court’s jurisdiction to correct such drafting errors or

mistakes by essentially redrafting the impugned statutory provision is also legally

1 : of, relating to, or affecting a particular person : private, individual personal ambition personal financial gain

2a : done in person without the intervention of another also : proceeding from a single person

b : carried on between individuals directly a personal interview

3 : relating to the person or body

4 : relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive

manner a personal insult

5a : being rational and self-conscious personal, responsive government is still possible— John Fischer

b : having the qualities of a person rather than a thing or abstraction a personal devil

6 : of, relating to, or constituting personal property a personal estate

7 : denoting grammatical person

8 : intended for private use or use by one person a personal stereo

Personal noun

Definition of personal (Entry 2 of 2)

1 : a short newspaper paragraph relating to the activities of a person or a group or to personal matters

2 : a short personal communication in a special column of the classified ads section of a newspaper or periodical

3 : personal foul

2

uncertain and this legal uncertainty will be explained later in these reasons by a review

of caselaw and academic writing on this subject.

[5]

Ergo, the question for the court in this proceeding, where the 3 defendants, Eagle

Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU, have been each

charged with contravening s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 on

4 different dates, is how this court should treat or deal with the legislative drafting error

or mistake contained in s. 11.1 of the Zoning Bylaw. If the trial of the charges against

the defendants were to continue with the wording of s. 11.1 as it stands presently, is

there even an offence known in law that the prosecution could even prove beyond a

reasonable doubt that the defendants had committed? Or is s. 11.1 a defective and

badly-worded bylaw that should be sent back to the legal department of the Town of

Caledon to properly draft and for the Town Council for the Town of Caledon to amend

so that s. 11.1 would be a properly worded bylaw? Or should this court, if there is the

jurisdiction to do so, and for practical purposes, effectively redraft the wording of s.

11.1 so that the intention of the Town Caledon council in enacting s. 11.1, if

determinable, will be properly expressed in s. 11.1?

[6]

Consequently, is s. 11.1 the result of a legislative drafting error or mistake for which

this court would have the legal jurisdiction to correct, but should not correct since this

court should not usurp the legislative role of the Town Council for the Town of Caledon

and that it should be rightly left for the Town of Caledon’s Council to amend and

correct their defective bylaw? Or is it a simple typographical error made by someone

typing out the statutory provision for the Town of Caledon to enact as a bylaw and for

which the intention of the Town Council for Caledon can be determined, and in which

this court should now correct by effectively redrafting s. 11.1?

[7]

Before the issue of the legislative drafting error or mistake in s. 11.1 was raised by

this court on June 15, 2022, this court had asked the prosecution for a certified copy

of the Town of Caledon Zoning Bylaw #2006-50, in order to see if the drafting error or

mistake in s. 11.1 was also clearly visible on the certified or official copy of the Town

of Caledon Zoning Bylaw and not just on the version of the Zoning Bylaw that is

available online on the Town of Caledon website. The prosecution replied that there

is not a physical certified or official copy of the Zoning Bylaw in the courthouse, but

that the Zoning Bylaw #2006-50 which is found on the Town of Caledon website is an

official, certified, and registered copy of Zoning Bylaw #2006-50 and is one that can

be downloaded from the Town of Caledon website: https://www.caledon.ca/en/town-

services/resources/Documents/business-planning-development/zoning-by-

law/March-24-2022/Section-11-ACCESSIBLE.pdf. Accordingly, the version of the

Town of Caledon Zoning Bylaw #2006-50 that is found on the Town of Caledon

website will be treated as an official, certified, and registered copy of the Zoning

Bylaw. Ergo, the official copy of the Town of Caledon Zoning Bylaw #2006-50 does

contain a drafting mistake or error in s. 11.1, which is the section under which the

defendants have been charged with committing an offence on 4 different days.

3

[8]

In respect to how this court should deal with the word “personal” that is used in s.

11.1, the prosecution contends that the word is basically a “scrivener’s error” and that

the proper meaning of s. 11.1 as intended by the Town Council for the Town of

Caledon can be found by looking at the overall purpose and spirit of the Zoning Bylaw

and by looking at other provisions in the Bylaw and to also look at the words used or

found in s. 11, which the prosecution contends does expressly refer to a “person”

everywhere in the Zoning Bylaw. Accordingly, the prosecution submits that the court

should interpret and read the word “personal” as the word “person” in s. 11.1 to

properly articulate the intention of the Town of Caledon Town Council for s. 11.1.

[9]

On the other hand, the defendants contend that since s. 11.1 is a provision contained

in a municipal bylaw enacted by a municipality and not a provision that is found in a

statute or regulation passed by the Parliament of Canada or the Legislature of Ontario,

then the intention of the Town of Caledon in respect to s. 11.1 cannot be actually

ascertained by looking to or referring to “Hansard” or a written legislative record, as

no such written record for the enactment of the Town of Caledon Zoning Bylaw #2006-

50 would be publicly available. In addition, the defendants argue that it would not be

fair to them for the court to second guess what the Town Council for the Town of

Caledon had intended when they chose and used or included the word “personal” in

s. 11.1 or for the court to look at various parts of the Zoning Bylaw to interpret the

meaning of the word “personal” in the context of s. 11.1.

[10] In respect to the use or appearance of the word “person” in s. 11 of the Town of

Caledon Zoning Bylaw, the word “person” is only expressly used or found once in s.

11 of the Zoning Bylaw and that is found in s. 11.3, where that provision states:

11.3 ZONE STANDARDS

No person shall, within any Environmental Policy Area Zone, use any lot or erect,

alter, use any building or structure except in accordance with the following zone

provisions. A number(s) following the zone standard, zone heading or description

of the standard, indicates an additional Zone requirement. These additional

standards are listed at the end of Table 11.2.

[11] Section 11.1 and s. 11.3 have virtually the same wording in each provision for the first

9 words, except s. 11.1 contained the adjectival word “personal” while s. 11.3 contains

the noun “person”. However, the remaining wording after the first 9 words used in

both provisions are dissimilar and referred to different subject matters.

[12] In addition, municipal bylaws are the primary legislative instrument of municipalities

in Ontario.

4

2. HOW SHOULD A COURT DEAL WITH WHAT APPEARS TO BE A LEGISLATIVE

DRAFTING ERROR OR MISTAKE IN THE BYLAW UNDER WHICH THE

DEFENDANTS HAVE BEEN CHARGED?

(A) The Courts Have “Uncertain Jurisdiction” To Correct Legislative

Drafting Errors Or Mistakes

[13] In her most recent edition of the definitive textbook on the construction of statutes that

was recently published in June of 2022, Professor Ruth Sullivan in “Sullivan on the

Construction of Statutes”, 7th ed. (Markham, Ont.: LexisNexis, June 2022), in the 12^th

Chapter entitled “Correcting Mistakes, Filling Gaps, Defeating Avoidance”, opines that

there is an “uncertain jurisdiction” for the courts to fix imperfections in legislation by

effectively redrafting the impugned statutory provision. After a review of how

Canadian courts have dealt with drafting errors or mistakes in legislation, Professor

Sullivan did determine that this uncertainty in the jurisdiction for courts to correct

drafting mistakes is the result of some courts being quite prepared to effectively redraft

legislation to produce a sensible result while others have taken the opposite view that

defects in legislation must be left to the legislature to fix [emphasis is mine below]:

This chapter looks at the uncertain jurisdiction of the courts to fix imperfections in

legislation by effectively redrafting it. In this respect, it is closely related to the chapter

on plausible meaning, which considers how far the concept of linguistic plausibility

can be stretched before it breaks. It is also closely related to the chapter on

consequential analysis, which looks at the range of permissible responses to

absurdity. While it is never easy to predict how courts will respond to hard cases, it

is especially difficult to make predictions when it comes to tampering with the

legislative text. Some courts are quite prepared to do so to produce a sensible result,

while others take the view that defects in legislation must be left to the legislature to

fix.

More specifically, this chapter considers the circumstances in which suspected

mistakes may be corrected, the difference between a drafting mistake and a

legislative gap and the reasons why courts decline to fill gaps. It also looks at the

doctrine of jurisdiction by necessary implication. It ends with a review of the measures

available to courts to defeat avoidance strategies.

(B) There Is A “Presumption Of Perfection” In Respect To Enacted

Legislation

[14] Professor Sullivan also began her commentary on how courts should handle or deal

with legislative drafting errors or mistakes by stating in section 12.01(1) of her 7^th

edition textbook that there is a “presumption of perfection” in the drafting of legislation,

which means that legislation is presumed to be accurate and well-drafted and that the

legislature does not make slips of the pen [emphasis is mine below]:

Presumption of perfection

5

Legislation is presumed to be accurate and well-drafted; it is presumed that the

legislature does not make slips of the pen. In Commissioners for Special Purposes

of the Income Tax v. Pemsel, Lord Halsbury wrote:

... I do not think it is competent to any Court to proceed upon the assumption

that the legislature has made a mistake. Whatever the real fact may be, I think

a Court of Law is bound to proceed upon the assumption that the legislature

is an ideal person that does not make mistakes.

In theory, this idealization of the legislative drafter’s work can be justified. The greater

the effort invested in the preparation of a text, the more appropriate it is for readers

to assume that errors have been eliminated and that the text in its final form

expresses the author’s intended meaning. In the case of statutes, knowledge of the

seriousness of legislation and of the care that has gone into its preparation leads

courts to discount the “accidents” of expression. What in other texts or in speech

would be understood as error, inadvertence or ellipsis is in legislation taken to be

intended, deliberate and complete.

[15] But more importantly, Professor Sullivan has also noted in section 12.01(1) of her 7^th

edition textbook that Lord Halsbury’s reluctance in Commissioners for Special

Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 at 549 (H.L.), to allow for

error or accident in the drafting of legislation has too been shared by Canadian courts.

As an example of this view by Canadian courts, Professor Sullivan specifically

referred to the Supreme Court of Canada’s decision in Morguard Properties Ltd. v.

Winnipeg (City), [1983] S.C.J. No. 84 (S.C.C.), in which Estey J. emphasized that the

Legislature is guided and assisted by a well-staffed and ordinarily very articulate

Executive and that a court must be slow to presume oversight or inarticulate intentions

due to resources that are available in the preparation and enactment of legislation. In

addition, Estey J. explained that the Legislature has complete control of the process

of legislation, and when it has not for any reason clearly expressed itself, it has all the

resources available to correct that inadequacy of expression. Furthermore, Professor

Sullivan commented that even though Estey J. was speaking about tax legislation in

Morguard Properties Ltd. v. Winnipeg (City) and a citizen’s right to have a municipal

property assessment reviewed, Estey J.’s remarks would also apply to all legislation

prepared by government. Moreover, Professor Sullivan further noted that because of

the skills and resources invested in the drafting process, “[t]he Court must, in general,

assume that the Legislature has said what it meant and meant what it has said”

[emphasis is mine below]:

Lord Halsbury’s reluctance to allow for error or accident in the drafting of legislation

is shared by Canadian courts. In Morguard Properties Ltd. v. Winnipeg (City), Estey

J. wrote:

... the Legislature is guided and assisted by a well-staffed and ordinarily very

articulate Executive. The resources at hand in the preparation and enactment of

legislation are such that a court must be slow to presume oversight or inarticulate

intentions.... The Legislature has complete control of the process of legislation, and

when it has not for any reason clearly expressed itself, it has all the resources

6

available to correct that inadequacy of expression. This is more true today than ever

before in our history of parliamentary rule.

Although Estey J. was speaking here of tax legislation and a citizen’s right to have a

municipal property assessment reviewed, his remarks apply to all legislation

prepared by government. Given the skills and resources invested in the drafting

process, “[t]he Court must, in general, assume that the Legislature has said what it

meant and meant what it has said”.

[16] In Morguard Properties Ltd. v. Winnipeg (City), Estey J. also held that in order to

adversely affect a citizen's right, whether as a taxpayer or otherwise, the Legislature

must do so expressly and that truncation of such rights may be legislatively

unintended or even accidental, but the courts must look for express language in the

statute before concluding that these rights have been reduced. Furthermore, Estey

J. explained that this principle of construction becomes even more important and more

generally operative in modern times because the Legislature is guided and assisted

by a well-staffed and ordinarily very articulate Executive [emphasis is mine below]:

In more modern terminology the courts require that, in order to adversely affect a

citizen's right, whether as a taxpayer or otherwise, the Legislature must do so

expressly. Truncation of such rights may be legislatively unintended or even

accidental, but the courts must look for express language in the statute before

concluding that these rights have been reduced. This principle of construction

becomes even more important and more generally operative in modern times

because the Legislature is guided and assisted by a well-staffed and ordinarily very

articulate Executive. The resources at hand in the preparation and enactment of

legislation are such that a court must be slow to presume oversight or inarticulate

intentions when the rights of the citizen are involved. The Legislature has complete

control of the process of legislation, and when it has not for any reason clearly

expressed itself, it has all the resources available to correct that inadequacy of

expression. This is more true today than ever before in our history of parliamentary

rule.

[17] And, even though Professor Sullivan had concluded in section 12.01(1) of her 7^th

edition textbook that Estey J.’s assumptions about legislative drafting have been

reasonably accurate, at least at the federal level, she also pointed out that presently

these assumptions are no longer accurate since there is under-funding at all levels of

government which has increased the pressure on drafters to produce ever more text

in ever less time in order to meet the government’s deadlines. And as a consequence

of this underfunding and pressure to meet deadlines, Professor Sullivan surmised that

errors and oversights in the drafting of legislation would be inevitable. Professor

Sullivan also noted that private members’ bills and amendments drafted by legislative

committees are another source of inconsistency and incoherence in legislation. In

addition, Professor Sullivan also found that in bilingual jurisdictions, occasional

discrepancies between the French and English versions of legislation would be

unavoidable. And, because such mistakes are bound to occur in the drafting of

legislation, Professor Sullivan propounds that the presumption of perfection should be

7

readily rebutted and that it should also be a normal part of the judicial function to

review legislation and in appropriate cases correct mistakes [emphasis is mine below]:

In the 1980s, when the Morguard Properties case was decided, Estey J.’s

assumptions about legislative drafting were reasonably accurate, at least at the

federal level. However, these assumptions are no longer accurate. Under-funding at

all levels of government has increased the pressure on drafters to produce ever more

text in ever less time. The government’s deadlines must be met, however unrealistic

they may be. As a result, errors and oversights are inevitable. Private members’ bills

and amendments drafted by legislative committees are another source of

inconsistency and incoherence in legislation. Finally, in bilingual jurisdictions,

occasional discrepancies between the French and English versions of legislation are

unavoidable. Because mistakes are bound to occur, the presumption of perfection

should be readily rebutted. It is a normal part of the judicial function to review

legislation and in appropriate cases correct mistakes.

[18] In Summerside (City of) v. Maritime Electric Co. Ltd., [2011] P.E.I.J. No. 24, 2011

PECA 13 (P.E.I. C.A.), at para. 130, Jenkins C.J.P.E.I., who was dissenting in part,

had recognized that there is a “presumption of perfection” in respect to the drafting of

legislation and held that in relying on this presumption as a guide for analyzing the

text of the statutory provision in question, there is the assumption that the provision in

question is accurate and well-drafted, and that the Legislature did not make a slip of

the pen. However, referring to pp. 172-173 of the textbook, “Sullivan on the

Construction of Statutes, 5^thed.”, Jenkins C.J.P.E.I. also indicated that this

presumption is rebuttable if it should ultimately be revealed that the words chosen by

the drafter are meaningless, contradictory, or incoherent; or the provision as drafted

leads to a result that cannot have been intended [emphasis is mine below]:

At this early stage of textual analysis, it remains unclear why the Legislature used a

variety of language -- "in the area;" "of the area;" "in the province, or part of the

province;" "in all areas of the province" -- in sections 2.1 and 2.2. Being guided by

the presumption of perfection, I proceed on the assumption that the provisions are

accurate and well-drafted, and that the Legislature did not make a slip of the pen.

This presumption is rebuttable, should it ultimately be revealed that the words chosen

by the drafter are meaningless, contradictory, or incoherent; or the provision as

drafted leads to a result that cannot have been intended: Sullivan on the Construction

of Statutes, at p. 172-173.

(C) Does A Court Have The Legal Jurisdiction To Correct Legislative

Drafting Errors Or Mistakes?

[19] Despite the uncertain jurisdiction of courts to correct legislative drafting errors or

mistakes, Professor Sullivan, in section 12.01(2) of her 7^thedition textbook, indicates

thatcourts have on occasion recognized and acknowledged their jurisdiction to correct

legislative drafting errors or mistakes when there is reason to believe that the text of

legislation does not express the rule that the legislature had intended to enact,

especially where the court finds “the words of the text are meaningless, contradictory,

8

or incoherent” or finds “the provision as drafted states a rule or leads to a result that

cannot have been intended”. Furthermore, Professor Sullivan also surmised that

where a court finds that it is impossible to make sense of a legislative text, so as to

determine whether or how it applies to the facts in question, then the courts would

have no choice but to engage in remedial drafting of that defective provision

[emphasis is mine below]:

Jurisdiction to correct mistakes

Most courts acknowledge their jurisdiction to correct drafting mistakes when there is

reason to believe that the text of legislation does not express the rule that the

legislature intended to enact. This breakdown of communication is generally

signalled in one of the following ways:

 the words of the text are meaningless, contradictory, or incoherent, or

 the provision as drafted states a rule or leads to a result that cannot have

been intended.

When it is impossible to make sense of a legislative text so as to determine whether

or how it applies to the facts in question, the courts have no choice but to engage in

remedial drafting. This can be a fairly straightforward exercise. In Morishita v.

Richmond (Township), for example, the Court was concerned with a provision in a

municipal by-law which directed the Municipal Clerk to “proceed as provided ... in

section 4 of this By-law”. Because s. 4 dealt with the duties of the planning committee

and made no mention of the Municipal Clerk, the reference to s. 4 was senseless.

However, as Southin J.A. noted, the corresponding provision in the former by-law,

which was repealed and replaced when the new by-law came into effect, directed the

Municipal Clerk to “proceed as provided in section 5.” In both the former and the new

by-law, s. 5 set out certain duties to be performed by the Municipal Clerk. In these

circumstances, Southin J.A. had no difficulty in concluding that the reference to s. 4

was a mistake which should be corrected by substituting a reference to s. 5.

A more striking example of remedial drafting by courts is found in Association of

Parents for Fairness in Education, Grand Falls District 50 Branch v. Minority

Language School Board No. 50. In that case, the New Brunswick Court of Appeal

was asked to interpret provisions governing the language of instruction in New

Brunswick’s Schools Act. Section 3.2 provided that a school board organized to teach

in one of New Brunswick’s official languages may “provide for persons of the other

official language classes or schools in which the language of instruction is that other

official language”. The Court found that the phrase “persons of the other official

language” was impossible to interpret and served no discernible purpose in the

legislative scheme. After reviewing the difficulties encountered in trying to make

sense of the concept “person of a language”, Angers J.A. wrote:

There are rare circumstances where the court may remove or substitute words so that

the meaning of an Act is intelligible and to ensure that it can be put to practical use....

I believe that such circumstances exist in the case before us.

9

The Court solved the problem by striking the words “persons of the other official

language” from the statute. Although this amounted to a dramatic redrafting of the

provision, in the view of the Court it was necessary to make sense of the Act.

[20] Professor Sullivan also commented, in section 12.01(5) of her 7^thedition textbook,

that nearly all judges accept that some straining of ordinary meaning is acceptable in

some circumstances (provided the meaning attributed to the text is sufficiently

plausible) and nearly all accept that mistakes may be corrected in some

circumstances (if the intended meaning is obvious enough) [emphasis is mine below]:

In principle, there are bright-line distinctions between strained interpretations,

implausible interpretations and corrected mistakes.

implausible

interpretation

(amendment)

corrected

drafting

mistake

strained

interpretation

acceptable

not acceptable

acceptable

In practice, these distinctions are not consistently drawn. Nearly all judges accept

that some straining of ordinary meaning is acceptable in some circumstances

(provided the meaning attributed to the text is sufficiently plausible) and nearly all

accept that mistakes may be corrected in some circumstances (if the intended

meaning is obvious enough). However, there is no consensus on where the lines

should be drawn. To the extent that the acceptable forms of interpretation — strained

interpretation and correction of drafting mistakes — are broadly conceived and

applied, the category of implausible interpretation is narrowed and potentially

disappears. Conversely, when strained interpretation and correction of drafting

mistakes are narrowly understood, the court has many opportunities to reject

interpretations on grounds of linguistic implausibility.

[21] In addition, in R. v. McIntosh, [1995] 1 S.C.R. 686, at paras. 26 to 29 and 34 to 38,

Lamer C.J., writing for the majority of the Supreme Court of Canada, had agreed with

the general rule that “the judge's task is to interpret the statute, not to create it”, and

as such, Lamer C.J. emphasised that the interpretation of the statute does not mean

that terms should be added to that law. Lamer C.J. had also agreed with the

presumption that legislation is deemed to be well drafted and expresses completely

what the legislator had wanted to say. In addition, Lamer C.J. also commented that

for a court to read words into a statutory provision that were not there would be

tantamount to amending the provision, which is a legislative and not a judicial function

[emphasis is mine below]:

… the contextual approach allows the courts to depart from the common

grammatical meaning of words where this is required by a particular context, but it

does not generally mandate the courts to read words into a statutory provision. It is

only when words are "reasonably capable of bearing" a particular meaning that they

10

may be interpreted contextually. I would agree with Pierre-André Côté's observation

in his book The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 231,

that:

Since the judge's task is to interpret the statute, not to create it, as a general rule,

interpretation should not add to the terms of the law. Legislation is deemed to be

well drafted, and to express completely what the legislator wanted to say. . . .

The Crown is asking this Court to read words into s. 34(2) which are simply not there.

In my view, to do so would be tantamount to amending s. 34(2), which is a legislative

and not a judicial function. The contextual approach provides no basis for the courts

to engage in legislative amendment.

Third, in this case we cannot lose sight of the overriding principle governing the

interpretation of penal provisions. In Marcotte v. Deputy Attorney General for

Canada, [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as

follows, at p. 115:

Even if I were to conclude that the relevant statutory provisions were ambiguous and

equivocal . . . I would have to find for the appellant in this case. It is unnecessary to

emphasize the importance of clarity and certainty when freedom is at stake. No

authority is needed for the proposition that if real ambiguities are found, or doubts of

substance arise, in the construction and application of a statute affecting the liberty

of a subject, then that statute should be applied in such a manner as to favour the

person against whom it is sought to be enforced.

Section 34(2), as a defence, acts as a "subtraction" from the liability which would

otherwise flow from the criminal offences contained in the Criminal Code. Criminal

Code provisions concerning offences and defences both serve to define criminal

culpability, and for this reason they must receive similar interpretive treatment.

This principle was eloquently stated by La Forest J.A. (as he then was) in New

Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201, at p. 210:

There is no doubt that the duty of the courts is to give effect to the intention of the

Legislature as expressed in the words of the statute. And however reprehensible

the result may appear, it is our duty if the words are clear to give them effect. This

follows from the constitutional doctrine of the supremacy of the Legislature when

acting within its legislative powers. The fact that the words as interpreted would give

an unreasonable result, however, is certainly ground for the courts to scrutinize a

statute carefully to make abundantly certain that those words are not susceptible of

another interpretation. For it should not be readily assumed that the Legislature

intends an unreasonable result or to perpetrate an injustice or absurdity.

This scarcely means that the courts should attempt to reframe statutes to suit their

own individual notions of what is just or reasonable.

It is a principle of statutory interpretation that where two interpretations of a provision

which affects the liberty of a subject are available, one of which is more favourable

to an accused, then the court should adopt this favourable interpretation. By this

same reasoning, where such a provision is, on its face, favourable to an accused,

then I do not think that a court should engage in the interpretive process advocated

11

by the Crown for the sole purpose of narrowing the provision and making it less

favourable to the accused. Section 34(2), on its face, is available to the respondent.

It was, with respect, an error for the trial judge to narrow the provision in order to

preclude the respondent from relying on it.

…

I am of the view that the Crown's argument linking absurdity to ambiguity cannot

succeed. I would adopt the following proposition: where, by the use of clear and

unequivocal language capable of only one meaning, anything is enacted by the

legislature, it must be enforced however harsh or absurd or contrary to common

sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29).

The fact that a provision gives rise to absurd results is not, in my opinion, sufficient

to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.

In Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379

(H.L.), Lord Macmillan criticized the view that absurdity alone would justify the

rejection of a literal interpretation of a statutory provision. He emphasized that an

"absurdity approach" is generally unworkable because of the difficulty of developing

criteria by which "to judge whether a particular enactment, if literally read, is so

absurd that Parliament cannot have intended it to be so read . . ." (p. 388). He then

proceeded, at p. 388, to outline what I believe to be the correct approach to statutory

interpretation where absurdity is alleged:

. . . if the language of an enactment is ambiguous and susceptible of two meanings,

one of which is consonant with justice and good sense while the other would lead to

extravagant results, a court of law will incline to adopt the former and to reject the

latter, even although the latter may correspond more closely with the literal reading

of the words employed.

Thus, only where a statutory provision is ambiguous, and therefore reasonably open

to two interpretations, will the absurd results flowing from one of the available

interpretations justify rejecting it in favour of the other. Absurdity is a factor to

consider in the interpretation of ambiguous statutory provisions, but there is no

distinct "absurdity approach".

However, assuming for the moment that absurdity by itself is sufficient to create

ambiguity, thus justifying the application of the contextual analysis proposed by the

Crown, I would still prefer a literal interpretation of s. 34(2).

As stated above, the overriding principle governing the interpretation of penal

provisions is that ambiguity should be resolved in a manner most favourable to

accused persons. Moreover, in choosing between two possible interpretations, a

compelling consideration must be to give effect to the interpretation most consistent

with the terms of the provision. As Dickson J. noted in Marcotte, supra, when

freedom is at stake, clarity and certainty are of fundamental importance. He

continued, at p. 115:

If one is to be incarcerated, one should at least know that some Act of Parliament

requires it in express terms, and not, at most, by implication.

12

[22] Sometimes a court is faced with a drafting anomaly or statutory lacuna or gap in the

legislation, so in order to avoid having to correct or repair the defective statutory

provision by effectively rewriting the statutory provision, a court may resolve the

apparent conflict through interpretation in a manner that does not produce an

anomalous outcome. An example of the situation where a drafting mistake had

apparently caused the words of a statutory provision to be contradictory or in conflict

with another statutory provision and which was resolved by the court through

interpretation is found in the case of Century Services Inc. v. Canada (Attorney

General), [2010] S.C.J. No. 60 (S.C.C.). In that case, at paras. 10 to 11 and 50,

Deschamps J. for the Supreme Court of Canada held that Parliament may have

inadvertently succumbed to a drafting anomaly with the enactment of the Companies'

Creditors Arrangement Act and the Excise Tax Act, which had created a facial conflict

and a statutory lacuna in the Excise Tax Act. However, Deschamps J. held that as is

often the case, the apparent conflict can be resolved through interpretation in a

manner that does not produce an anomalous outcome [emphasis is mine below]:

The first issue concerns Crown priorities in the context of insolvency. As will be seen,

the ETA provides for a deemed trust in favour of the Crown in respect of GST owed

by a debtor "[d]espite ... any other enactment of Canada (except the Bankruptcy and

Insolvency Act)" (s. 222(3)), while the CCAA stated at the relevant time that

"notwithstanding any provision in federal or provincial legislation that has the effect

of deeming property to be held in trust for Her Majesty, property of a debtor company

shall not be [so] regarded" (s. 18.3(1)). It is difficult to imagine two statutory

provisions more apparently in conflict. However, as is often the case, the apparent

conflict can be resolved through interpretation.

In order to properly interpret the provisions, it is necessary to examine the history of

the CCAA, its function amidst the body of insolvency legislation enacted by

Parliament, and the principles that have been recognized in the jurisprudence. It will

be seen that Crown priorities in the insolvency context have been significantly pared

down. The resolution of the second issue is also rooted in the context of the CCAA,

but its purpose and the manner in which it has been interpreted in the case law are

also key. After examining the first two issues in this case, I will address Tysoe J.A.'s

conclusion that an express trust in favour of the Crown was created by the court's

order of April 29, 2008.

…

It seems more likely that by adopting the same language for creating GST deemed

trusts in the ETA as it did for deemed trusts for source deductions, and by

overlooking the inclusion of an exception for the CCAA alongside the BIA in s. 222(3)

of the ETA, Parliament may have inadvertently succumbed to a drafting anomaly.

Because of a statutory lacuna in the ETA, the GST deemed trust could be seen as

remaining effective in the CCAA, while ceasing to have any effect under the BIA,

thus creating an apparent conflict with the wording of the CCAA. However, it should

be seen for what it is: a facial conflict only, capable of resolution by looking at the

broader approach taken to Crown priorities and by giving precedence to the statutory

language of s. 18.3 of the CCAA in a manner that does not produce an anomalous

outcome.

13

[23] Furthermore, Fish J. in Century Services Inc. v. Canada (Attorney General), at para.

95, also commented that a drafting anomaly or statutory lacuna in legislation may be

properly subject to judicial correction or repair [emphasis is mine below]:

Parliament has in recent years given detailed consideration to the Canadian

insolvency scheme. It has declined to amend the provisions at issue in this case.

Ours is not to wonder why, but rather to treat Parliament's preservation of the

relevant provisions as a deliberate exercise of the legislative discretion that is

Parliament's alone. With respect, I reject any suggestion that we should instead

characterize the apparent conflict between s. 18.3(1) (now s. 37(1)) of the CCAA

and s. 222 of the ETA as a drafting anomaly or statutory lacuna properly subject to

judicial correction or repair.

[24] Moreover, in Ontario (Minister of Transport) v. Phoenix Assurance Co. of Canada,

[1973] O.J. No. 2135, 39 D.L.R. (3d) 481 at 486 (Ont. C.A.), affd (1975), 54 D.L.R.

(3d) 768, (S.C.C.), which involved a statutory provision that had been missing words

that would have made the provision sensical if they had been included, the Court of

Appeal for Ontario decided to correct the legislative drafting mistake by reading the

missing words into the provision in order to fulfill the Legislature’s intention. At para.

6 to 9 of Ontario (Minister of Transport) v. Phoenix Assurance Co. of Canada,

Schroeder J.A. for the Court of Appeal emphasized that the Court must, in general,

assume that the Legislature has said what it meant and meant what it has said, but if

the intention of the Legislature is however deemed to be defective or not plainly

evident in the statutory provision then the Court on ethical grounds would not be

warranted in attempting to correct it on such grounds, for to do so would be to arrogate

to itself legislative powers. In addition, Schroeder J.A. held that in applying the

provisions of enacted law, the duty of the Court is to discover and to act upon the true

intention of the Legislature, and that in ordinary cases the Courts must be content to

accept the letter of the law as the exclusive and conclusive evidence of the true

intention of the legislators. But then, in respect to the defective statutory provision

that had been at issue before the Court of Appeal and which had omitted some

wording, Schroeder J.A. held that despite the defect in the wording of the legislation

the intention of the Legislature is nonetheless plainly evident so that the defective

statutory provision may and should be made logically perfect by the court (by reading

into the statutory provision those missing words), in order to give effect to the

legislative intention [emphasis is mine below]:

In applying the provisions of enacted law the duty of the Court is to discover and to

act upon the true intention of the Legislature. In all ordinary cases the Courts must

be content to accept the letter of the law as the exclusive and conclusive evidence

of the true intention of the legislators. The Court must, in general, assume that the

Legislature has said what it meant and meant what it has said. To this general

principle there are exceptions which must, however, be sparingly applied since

certainty and uniformity of the law should not be sacrificed by loose and arbitrary

construction, while on the other hand care must be exercised to ensure that the true

intent of the law-givers is not sacrificed to the tyranny of language.

14

It is contended by counsel for the respondent that in the legislation under review the

text is neither ambiguous nor inconsistent; that it is logically complete and workable

without the inclusion of an act by an insurer whereby insurance protection is diverted

from one vehicle, in this case a 1955 Chevrolet, to another vehicle, here the 1957

Studebaker. It is incontrovertible that when the endorsement effecting the change

was delivered by the insurer to the insured and accepted by the latter, the insurance

coverage quoad the 1955 Chevrolet was terminated in as complete a sense as if

notice of cancellation had been given and received. Thus while there is no ambiguity

or inconsistency in the text, nevertheless it may well be said that there is a gap by

reason of which it fails to express a logically complete idea. The legislation makes

provision for one case but it is silent as to the other so far as the actual language is

concerned. There is a genuine and perfect intention lying behind the text of the

enactment in question. In substance it is this: If the insurer does anything by reason

of which a motor vehicle liability policy, for which a certificate has been issued,

ceases to exist with respect to the designated vehicle, the insurer shall notify the

Registrar of that fact, whether it can be denominated a cancellation or expiry or be

expressed by some term having substantially the same meaning, at least 10 days

before the cessation of the insurance coverage, otherwise the policy remains in full

force and effect.

In my respectful opinion, the letter of this enactment may be said to be logically

defective. Manifestly there is a genuine and perfect intention lying behind this

defective language, as I have endeavoured to point out. Can it be doubted that the

Legislature would have expressed this intention had the omission been called to its

attention?

It is plain to my mind that this is a case in which the true and perfect intention of the

legislative body has received imperfect expression. If the intention of the Legislature

is deemed to be defective on ethical grounds the Court would not be warranted in

attempting to correct it on such grounds, for to do so would be to arrogate to itself

legislative powers. But here what may be called the dormant or latent intention of the

Legislature plainly appears, 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 despite the imperfection or incompleteness of the language

in which the enactment is couched.

[25] In addition, in Kehoe v. Artis Builders, [2019] S.J. No. 35, at para. 24, the

Saskatchewan Court of Appeal confirmed that courts have a very limited authority to

correct drafting mistakes where it is clear that the statutory language does not reflect

legislative intention [emphasis is mine below]:

Courts have a very limited authority to correct drafting mistakes where it is clear

that the statutory language does not reflect legislative intention. Justice Lamer

(as he then was) put it this way in R v Paul, [1982] 1 SCR 621 at 662:

Courts have always been reluctant to giving statutes exceptional construction.

This is well illustrated in the reported cases on the subject. But this reluctance

did not stop courts from departing from the ordinary rules of construction if

15

through their application the law were to become what Dickens' Mr. Bumble

said it sometimes could be, "a ass, a idiot" (Dickens, Oliver Twist).

[26] Furthermore, in Morishita v. Richmond (Township), [1990] B.C.J. No. 634, 44 B.C.L.R.

(2d) 390, which had involved a statutory provision that had made no sense when it

had referred to “s. 4” in that provision, the British Columbia Court of Appeal in that

case had decided to correct the legislative drafting mistake instead of leaving it to the

Township of Richmond to fix the defective provision, by effectively rewriting the

statutory provision by substituting the term “s. 5” for the term “s. 4”, so that it made

sense. In deciding to engage in the remedial drafting of that statutory provision,

Southin J.A., for the British Columbia Court of Appeal, had reviewed the previous

version of that statutory provision which had been repealed and concluded that the

current statutory provision did not make any sense because of the drafting mistake

contained in it and that the incorrect reference to “s. 4”, which should have been in

actuality a reference to “s. 5” that had been the term that had been contained in the

repealed version of the statutory provision. Southin J.A. found that by substituting the

term “s. 5” for the term “s. 4” it would then make the current statutory provision

sensical, as it had been for the repealed version of that statutory provision [emphasis

is mine below]:

The difficulty arising on s. 8 is its reference to s. 4.

The simple fact is, the reference to s. 4 makes no sense at all.

Because it made no sense, I asked counsel for the municipality if he could provide

a copy of bylaw no. 3797 which was the antecedent procedural bylaw and which

was repealed on the 13th April, 1987, when the present bylaw came into effect.

He did supply it and the section in pari materia said this:

8.

If the Council refers the proposed Development Permit back to the

Planning Committee or Director of Planning pursuant to section 6 of this By-law,

without specifying a time and a place at which the Planning Committee or Director

of Planning shall report back to a subsequent Council meeting, the Planning

Committee shall, in reporting on the referral, proceed as provided, mutatis

mutandis, in section 4 of this By-law, and, the Municipal Clerk shall, upon receipt

of the Planning Committee's or Director of Planning's report on the referral,

proceed as provided, mutatis mutandis, in section 5 of this By-law.

Section 5 of the bylaw 3797 was essentially the same as s. 5 of the present bylaw

and s. 4 dealt with the duties of the Planning Committee and the Director of

Planning.

I think the only rational conclusion is that the reference to s. 4 in the present s. 8

is a mistake. The section intended to be referred to is s. 5.

16

(i) Jurisdiction to correct drafting errors or mistakes when the

words of the text are meaningless, contradictory, or incoherent

[27] In Botham Holdings Ltd. (Trustee of) v. Braydon Investments Ltd., [2009] B.C.J. No.

2315, at paras. 70 to 73, the British Columbia Court of Appeal had corrected the

drafting mistake in the statutory provision by striking out the words "by collusion, guile,

malice or fraud" from the provision in order that the Act would make sense [emphasis

is mine below]:

However, for many years, and certainly since the repeal of the penal provisions in

1987, the purpose and scheme of the B.C. Fraudulent Conveyance Act has been

to provide a civil remedy to creditors. Its purpose is to protect creditors where

property dispositions by debtors "... were effected for the purpose of defeating the

legitimate claims of creditors" per Sykes (supra). As a result, the words "by

collusion, guile, malice or fraud" no longer perform a meaningful function in the

text.

Thus, as stated in Sullivan on the Construction of Statutes, 5th ed. (Markham:

LexisNexis, 2008) at pp. 178-179, in circumstances where:

... courts encounter words in a legislative text for which no satisfactory

interpretation can be offered ... courts may strike out the offending language if the

text makes sense without it. ... In effect, the court must conclude that the words to

be struck perform no meaningful function in the text, contrary to the presumption

against tautology; their presence is simply a mistake.

The Act not only makes sense after removal of these words, but accords with the

modern purpose and scheme of the Act. Therefore, the words "by collusion, guile,

malice or fraud" should be struck.

The only intent now necessary to avoid a transaction under the modern version of

the Act is the intent to "put one's assets out of the reach of one's creditors" (per

RBC v. Clarke). No further dishonest or morally blameworthy intent is required.

[28] In addition, in Rennie's Car Sales and R. G. Hicks v. Union Acceptance Corp. Ltd.,

[1955] A.J. No. 59, 4 D.L.R. 822, the Alberta Court of Appeal, at para. 3, had corrected

the statutory provision which had contained typographical errors by interchanging the

words "by" and "of" which had been transposed in the provision, so that the provision

would then make sense [emphasis is mine below]:

It is agreed by all that the section as printed in the 1952 Statutes contains

typographical errors, the words "by" and "of" being transposed. With these words

interchanged the section reads: ". . . . a copy of the mortgage and of all affidavits

and documents accompanying or relating to the mortgage proved to be a true copy

by the affidavit of some person who has compared the same with the original."

17

(ii) Jurisdiction to correct drafting errors or mistakes when the provision

as drafted states a rule or leads to a result that cannot have been

intended

[29] In Stock v. Frank Jones (Tipton) Ltd., [1978] 1 All E.R. 948 (H.L.), Lord Scarman held

that if the words used by Parliament are plain, then there would be no room for the

'anomalies' test, unless the consequences are so absurd that, without going outside

the statute, one can see that Parliament must have made a drafting mistake. And,

Lord Scarman then said that if words 'have been inadvertently used', it is legitimate

for the court to substitute what is apt to avoid the intention of the legislature being

defeated. Furthermore, Lord Scarman explained that if a study of the statute as a

whole leads inexorably to the conclusion that Parliament has erred in its choice of

words, for example, used 'and' when 'or' was clearly intended, then the courts can,

and must, eliminate the error by interpretation. However, Lord Scarman, also

concluded that mere 'manifest absurdity' is not enough and that it must be an error of

commission or omission, which in its context defeats the intention of the Act [emphasis

is mine below]:

My Lords, I also have had the advantage of reading in draft the speech of my noble

and learned friend, Viscount Dilhorne. I agree with it. The words used by

Parliament admit of no ambiguity, and, for the reasons given by him, I would

dismiss this appeal.

I wish, however, to add a few words of my own on the 'anomalies' argument.

Counsel for the appellants sought to give the words a meaning other than their

plain meaning by drawing attention to what he called the 'anomalies' which would

result from giving effect to the words used by Parliament. If the words used be

plain, this is, I think, an illegitimate method of statutory interpretation unless it can

be demonstrated that the anomalies are such that they produce an absurdity which

Parliament could not have intended, or destroy the remedy established by

Parliament to deal with the mischief which the Act is designed to combat.

It is not enough that the words, though clear, lead to a 'manifest absurdity': per

Lord Esher MR in R v City of London Court Judge ([1892] 1 QB 273). Lord Atkinson

put the point starkly in Vacher & Sons Ltd v London Society of Compositors ([1913]

AC 107, [1911–13] All ER Rep 241):

'If the language of a statute be plain, admitting of only one meaning, the Legislature

must be taken to have meant and intended what it has plainly expressed, and

whatever it has in clear terms enacted must be enforced though it should lead to

absurd or mischievous results.'

The reason for the rule was given by Lord Tenterden CJ in Brandling v

Barrington ((1827) 6 B & C 467 at 475) in a passage in which he was considering

the so-called 'equity of a statute'; he commented—

'… that is so much safer and better to rely on and abide by the plain words,

although the Legislature might possibly have provided for other cases had their

attention been directed to them.'

18

As Lord Moulton said in Vacher's case ([1913] AC 107, [1911–13] All ER Rep 241):

'The argument ab inconvenienti is one which requires to be used with great

caution. There is a danger that it may degrade into mere judicial criticism of the

propriety of the acts of the Legislature.'

If the words used by Parliament are plain, there is no room for the 'anomalies' test,

unless the consequences are so absurd that, without going outside the statute,

one can see that Parliament must have made a drafting mistake. If words 'have

been inadvertently used', it is legitimate for the court to substitute what is apt to

avoid the intention of the legislature being defeated: per MacKinnon LJ

in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd (No 2) ([1937] 4 All

ER 405, [1938] Ch 174). This is an acceptable exception to the general rule that

plain language excludes a consideration of 'anomalies', ie mischievous or absurd

consequences. If a study of the statute as a whole leads inexorably to the

conclusion that Parliament has erred in its choice of words, e g used 'and' when

'or' was clearly intended, the courts can, and must, eliminate the error by

interpretation. But mere 'manifest absurdity' is not enough: it must be an error (of

commission or omission) which in its context defeats the intention of the Act.

[1978] 1 All ER 948 at 956

Nothing of the sort has been demonstrated in this case. One may doubt whether

the challenged para 8 of Sch 1 to the 1974 Act has covered all possible

consequences. I should be surprised if it has. But undeniably its plain terms are

wholly consistent with the Act's intention to prevent victimisation of workers on

strike; and it matters not that this purpose could have been fulfilled in other ways

and with different consequences.

[30] Also, in Air Canada v. Ontario (Minister of Revenue), [1996] O.J. No. 831, 28 O.R.

(3d) 97 (Ont. C.A.), at paras. 47 to 48, Morden A.C.J.O. held that the situation before

the Court of Appeal had been one of those relatively rare cases where the court may

properly "correct" the drafting error and read s. 4(3)(b) as referring to the whole of s.

2. In deciding to correct the drafting error in the legislation, Morden A.C.J.O. found

there had been a clear drafting error in the statutory provision and that what had been

clearly intended in s. 4(3)(b) was to refer to the whole of s. 2 -- so that it would include

the tax relating to aviation fuel which is dealt with in s. 2(2). To arrive at this conclusion

Morden A.C.J.O. reviewed the legislation before the 1989 amendment (Gasoline Tax

Act, R.S.O. 1980, c. 186, s. 4(1)) and that after it (S.O. 1991, c. 13, vol. 2, s. 3, re-

enacting s. 4(3)(b)), which made the Legislature’s intention clear. Morden A.C.J.O.

also relied on the explanatory note in respect to s. 4 set out in Bill 24, which became

S.O. 1989, c. 45, that had stated that the amendment sets out the collection and

remittance obligations of importers and requires importers who are not collectors to

account for the tax they are obliged to collect or to pay at the point of entry into Ontario

to officials authorized by the Minister [emphasis is mine below]:

The airlines have submitted that it is not open to this court to come to a like

conclusion on the basis of the legislation in this case. They submit that it is difficult

to imply a time for payment of the tax on aviation fuel when the statute expressly

19

deals with the time for payment of tax on gasoline by virtue of ss. 4(3)(b) and 2(1).

In my view, it is clear that there was a drafting error in s. 4(3)(b) in the reference to

s-s. 2(1) only. What clearly was intended in s. 4(3)(b) was to refer to the whole of s.

2 -- so that it would include the tax relating to aviation fuel which is dealt with in s.

2(2). The legislation before the 1989 amendment (Gasoline Tax Act, R.S.O. 1980,

c. 186, s. 4(1)) and that after it (S.O. 1991, c. 13, vol. 2, s. 3, re-enacting s. 4(3)(b))

make this clear. Further, the explanatory note in Bill 24, which became S.O. 1989,

c. 45, to s. 4 states that:

This amendment sets out the collection and remittance obligations of importers

and requires importers who are not collectors to account for the tax they are

obliged to collect or to pay at the point of entry into Ontario to officials authorized

by the Minister.

This confirms the obvious fact that there was no intention to exclude the payment of

tax on aviation fuel.

I think that this is one of those relatively rare cases where the court may properly

"correct" the drafting error and read s. 4(3)(b) as referring to the whole of s. 2. See

Driedger on the Construction of Statutes, 3rd ed. (Markham: Butterworths, 1994), by

Ruth Sullivan at p. 106 et seq. In doing this s. 2(2) is covered and it is clear that the

time for payment is the time of entry of the aviation fuel into Ontario. This would be

consistent with the approach of Thurlow C.J. in dissent in British Columbia Railway

Co., with which I respectfully agree, and with Vanguard.

(iii) Courts have also refused to correct a legislative drafting error or

mistake in a statutory provision and have left it for the legislators

to fix

[31] In section 12.01(4) of her 7^thedition textbook, Professor Sullivan discusses and

provided examples of statutory provisions that contained legislative drafting errors or

mistakes where the courts had refused to correct the defective provision. These

cases support the notion about the “uncertainty” of a court’s jurisdiction to correct

legislative drafting errors or mistakes contained in statutory provisions. In addition,

Professor Sullivan observed that in cases where it is not entirely clear that the text is

erroneous or where the true intent of the legislature cannot be established with

confidence, the courts have generally declined to exercise their jurisdiction to correct

drafting errors [emphasis is mine below]:

Courts sometimes refuse to correct apparent drafting errors, for a variety of reasons.

In Riley v. Columbia Shuswap (Regional District),25 the British Columbia Court of

Appeal refused to do so, even though the provision as drafted made no sense and

the legislature’s intention was clear, because it doubted its jurisdiction to do so.

Levine J.A. wrote:

The question is whether the court may substitute the clearly intended words for the

word used in error. None of the authorities cited support what would amount to, in

effect, rewriting s. 3 to make it meaningful....26 While it is apparent that the definition

of “participating area” should have been used instead of “participant”, in my view it is

20

not the role of the court to correct obvious drafting errors, but only to interpret what

has been written. 27

In Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue),28 the

Federal Court of Appeal made somewhat similar remarks. Speaking for the Court,

Mainville J.A. wrote:

The appellants are basically asking this Court to redraft the legislation through

judicial fiat in order to meet the objectives which the appellants believe Parliament

had when it adopted Bill C-259. I am of the view that it is not the role of the judiciary

to carry out a substantial redraft of the legislation, nor to give the language of the

substantive provisions of the legislation a meaning which it cannot bear....

It is the responsibility of Parliament to correct any substantive errors in the legislation

it adopts if it deems proper to do so. 29

However, Mainville J.A. also noted and approved the reasoning of the trial judge,

which acknowledged a judicial jurisdiction to correct drafting errors but concluded

that this was not an appropriate case for a judicial fix. Mainville J.A. wrote:

... Though Beaudry J. agreed with the appellants “that the source of the error has

been demonstrated to the Court and that there was some absurdity which flows from

the application of the Act as written” ..., he was not convinced that the technical

drafting of Bill C-259 was a simple clerical error since “the Act as drafted is not

meaningless, contradictory or incoherent on its face” ..., nor could he “conclude with

confidence that had Bill C-259 been properly understood and presented in its final

stages, that it would indeed have been adopted to achieve the effect suggested by

the [appellants]”....30

In cases where it is not entirely clear that the text is erroneous or where the true

intent of the legislature cannot be established with confidence, the courts generally

decline to exercise their jurisdiction to correct drafting errors.

[32] In Riley v. Columbia Shuswap (Regional District), [2002] B.C.J. No. 1354, 2002 BCCA

374, the British Columbia Court of Appeal had to decide the question of whether the

court could substitute the clearly intended words for the word used in error in a

provision in a municipal bylaw. At paras. 27 to 30 in Riley v. Columbia Shuswap

(Regional District), the British Columbia Court of Appeal found that none of the

authorities cited had supported what would amount to, in effect, rewriting the statutory

provision in question to make it meaningful. Furthermore, the British Columbia Court

of Appeal had noted that even though it is apparent that the definition of "participating

area" should have been used instead of "participant", they did not view it should be

the court’s role to correct obvious drafting errors, but only to interpret what has been

written [emphasis is mine below]:

Section 3 of Bylaw No. 629 provides: "The participants in the named service are

portions of Electoral Areas 'B', 'E', and 'F'". The chambers judge found that both

the definition of "participant" in the Local Government Act and the dictionary

definition made no sense in the context of the bylaw.

21

I agree with the appellant that it is clear from the context that the District intended

to use the definition of "participating area" and not "participant" from the Act, and

that the dictionary meaning used by the chambers judge provides no meaning in

the context and does not assist in the interpretation of the section.

Applying the contextual approach from Perry, the "mischief", or in this context, the

purpose of the bylaws is to define the geographical areas in which the building

inspection service is provided. The bylaws have nothing to do with the persons or

people who will be involved. It is an error to "search for the lexicological possibilities

inherent in the word" "participant", as it cannot carry the intended meaning.

The question is whether the court may substitute the clearly intended words for the

word used in error. None of the authorities cited support what would amount to, in

effect, rewriting s. 3 to make it meaningful. While it is apparent that the definition

of "participating area" should have been used instead of "participant", in my view

it is not the role of the court to correct obvious drafting errors, but only to interpret

what has been written.

[33] Furthermore, in Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue),

[2010] F.C.J. No. 1686, 2010 FCA 294, at paras. 10 to 12, Mainville J.A., for the

Federal Court of Appeal, held that the inherent contradiction between the title and the

preamble of Bill C-259 and the technical drafting of the substantive provisions enacted

pursuant to that Bill is not a mere clerical error. In respect to whether the court should

redraft the legislation through judicial fiat in order to meet the objectives which the

appellants believe Parliament had when it adopted Bill C-259, Mainville J.A. decided

not to redraft the statutory provision to correct the contradiction to meet Parliament’s

objectives and reasoned it is not the role of the judiciary to carry out a substantial

redraft of the legislation, nor to give the language of the substantive provisions of the

legislation a meaning which it cannot bear. Moreover, Mainville J.A. held that it is the

responsibility of Parliament to correct any substantive errors in the legislation it adopts

if it deems proper to do so [emphasis is mine below]:

While I recognize that there is an inherent contradiction between the title and the

preamble of Bill C-259 and the technical drafting of the substantive provisions

enacted pursuant to that Bill, I agree with Beaudry J. that this is not a mere clerical

error. As drafted, Bill C-259 has a meaning which may not be the one stated in its

preamble, but which nevertheless is coherent.

The appellants are basically asking this Court to redraft the legislation through

judicial fiat in order to meet the objectives which the appellants believe Parliament

had when it adopted Bill C-259. I am of the view that it is not the role of the judiciary

to carry out a substantial redraft of the legislation, nor to give the language of the

substantive provisions of the legislation a meaning which it cannot bear (see by

analogy Exida.com Limited Liability Company v. The Queen, 2010 FCA 159, 2010

D.T.C. 5101 at paras. 28 to 32, and Stone v. Woodstock (Town), 2006 NBCA 71

at para. 21).

22

It is the responsibility of Parliament to correct any substantive errors in the

legislation it adopts if it deems proper to do so. In this case, I am of the view that

any perceived contradictions between the title and preamble of Bill C-259 and its

substantive provisions were addressed by Parliament in the Budget

Implementation Act, 2006 which repealed the excise tax on jewellery effective as

of May 2, 2006. Had Parliament intended to extend the repeal of this tax to

November 25, 2005, the date of the coming into force of Bill C-259, it could have

done so, but chose not to. The intent of Parliament is abundantly clear: the excise

tax on jewellery is fully repealed as of May 2, 2006. Notwithstanding the appellants'

assertions to the contrary, section 45 of the Interpretation Act, R.S.C. 1985, c. I-21

is not a bar to reaching such a conclusion: Silicon Graphics Ltd. v. Canada, 2002

FCA 260, [2003] 1 F.C. 447 at paras. 42-43.

[34] Also, in University Hospital Board v. Boros, [1985] S.J. No. 913, 24 D.L.R. (4th) 628,

at paras. 7 to 10 and 12 to 13, the Saskatchewan Court of Appeal had decided not

correct the apparent drafting error contained in the statutory provision that set out a

limitation period for bringing an action against a hospital, in order to fulfill the intention

of the legislators. In that case, the plaintiff Boros had been hired by the University

Hospital Board as an architect on January 1, 1978 and was dismissed without cause

effective January 8, 1983. Boros then commenced an action for damages against the

University Hospital Board on February 10th, 1984, claiming she had been given

insufficient notice of her dismissal. However, the University Hospital Board contended

that Boros’ action had run out of time by reason of section 15 of The Hospital

Standards Act which had set a limitation period of 3 months to bring an action against

the University Hospital Board from the date on which the damages had been

sustained, unless within one year from such date Boros had made an application for

leave to a judge of the Court of Queen's Bench to allow the claim to be made after the

3-months limitation period had expired. Boros’ claim had actually been brought after

the one year period had expired to seek leave from a judge of the Court of Queen's

Bench to commence an action. Although the Saskatchewan Court of Appeal had

reasoned that s. 15 as drawn may not represent the real intention of the legislature

that s. 15 would apply to all manner of actions for the recovery of damages against a

hospital, they were not prepared to correct the apparent drafting error contained in s.

15, and instead held that they must take the statute as they find it and give the words

in s. 15 their ordinary meaning [emphasis is mine below]:

While it is difficult to answer that question which rather suggests the legislature did

not intend s. 15 to apply to all manner of actions for the recovery of damages care

must be taken not to press this line of reasoning too far. The issue after all is not

the reasonableness of the provision. The issue is what did the legislature intend,

given the language it used?

Lord Reid in Westminister Bank Ltd. v. Zang, [1965] A.C. 182 at p. 222 observed

that

... no principle of interpretation of statutes is more firmly settled than the rule that

the court must deduce the intention of Parliament from the words used in the Act.

If those words are in any way ambiguous - if they are reasonably capable of more

23

than one meaning - or if the provision in question is contradicted by or is

incompatible with any other provision in the Act then the Court may depart from

the natural meaning of the words in question. But beyond that we cannot go.

And in Victoria (City) v. Bishop of Vancouver Island [1921] A.C. 384, Lord Atkinson

said:

In the construction of statutes their words must be interpreted in their ordinary

grammatical sense, unless there is something in the context, or in the object of the

statute in which they occur, or in the circumstances with reference to which they

are used, to show that they were used in a special sense different from their

ordinary grammatical sense.

I cannot fairly say there is anything in the circumstances of this case justifying a

principled departure from the ordinary meaning of the words of the section in issue. I

may say I would prefer it were otherwise because I do not regard the result as

altogether reasonable. I suspect, just as did Mr. Justice MacLeod in Swan, that the

section as drawn may not represent the real intention of the legislature, although I do

note that it would have been easy enough for the draftsman, had he wanted to do so,

to have narrowed its scope. For example, if, after the words of the section, "no action

shall be brought for the recovery of damages", there had been added the words "for

personal injury", even then their scope would have been considerably reduced.

…

Dreidger: Construction of Statutes (2nd ed. p. 57) notes that:

... where the meaning of a statute is in issue one must bear in mind that the court

always begins with rival constructions put forward by opposing counsel, for

otherwise there would be no lawsuit. The judge is at the outset, even before he

has construed the statute, likely to weigh the consequences of one construction

against those of the other, and if one strikes as being absurd, unjust, or

unreasonable according to his values, he will try to arrive at a construction that will

avoid those consequences. His proper function at that stage is not that of moulding

the statute to fit his feelings. His initial reaction ought only to serve as a warning to

read the statute closely and carefully ... Only where there are two reasonable

constructions and the issues cannot be resolved objectively by reference to the

intention and object of the statute as ascertained from a reading of it in its total

concept is it proper to make a choice on the basis of personal concepts of

reasonableness. [emphasis added]

I agree with those comments, and observe that Burton J. in Warburton v. Loveland

(1832) 2 Dow & CI 490; 6 E.R. 806 said much the same thing:

I admit that the generality of words may properly be restrained within the limits of

the declared or implied policy of the statute, the more especially if a construction,

to the full extent of its phrase, would lead to any repugnance or inconsistency in

its provisions. That policy is, however, I conceive, only to be looked for in the

statute itself, and not to be either enlarged or contracted, upon merely speculative

grounds - a mode of construction that always incurs the hazard, and has perhaps

in some instances, produced the effect of legislating in the form of exposition.

[emphasis added]

24

Having regard for all of this, I have come to the conclusion we must take the statute

as we find it and give the words their ordinary meaning. That means, of course, that

Mrs. Boros' action falls within s. 15 of the Act.

(D) What Are The Criteria For A Court To Find That It Has The Jurisdiction

To Correct A Legislative Drafting Error Or Mistake?

[35] As to when a court may correct a legislative drafting error or mistake, Professor

Sullivan in her 7^thedition textbook, in section 12.01(3), noted that when a court finds

that it is not possible to give meaning to a provision or when the court does find a

meaning in the provision but that the meaning is so absurd that, in the view of the

court, it cannot have been intended and there is no way to interpret the provision so

as to avoid the absurdity, then the court may consider that it has no choice but to

redraft. Professor Sullivan also emphasized that ideally in such cases of a statutory

provision having an absurd meaning it will be apparent to the court how the error came

about, for example, through careless amendment or bad translation; and ideally, it will

be also clear to the court what the legislature had in fact meant to say with that

impugned provision. Professor Sullivan also pointed out that when all three of the

following factors are present, namely (a) a manifest absurdity, (b) a traceable error,

and (c) an obvious correction, most courts would not hesitate to correct the drafting

mistake. However, in borderline cases, Professor Sullivan found that the response of

courts can be difficult to predict and much would depend on the individual court’s

conception of its institutional role [emphasis is mine below]:

Unacceptable absurdity

Sometimes it is possible to give meaning to a provision, but that meaning is so

absurd that, in the view of the court, it cannot have been intended. If there is no way

to interpret the provision so as to avoid the absurdity, the court may consider that it

has no choice but to redraft. Ideally in such cases it will be apparent how the error

came about — through careless amendment or “bad translation”, for example.

Ideally, too, it will be clear to the court what the legislature in fact meant to say. When

all three of these factors are present, namely (a) a manifest absurdity, (b) a traceable

error, and (c) an obvious correction, most courts do not hesitate to correct the

drafting mistake. In borderline cases, however, the response of courts can be difficult

to predict. Much depends on the individual court’s conception of its institutional role.

In University Hospital Board v. Boros, for example, the Court had to determine the

limitation period applicable to a wrongful dismissal suit brought by an architect

against a hospital. A provision in the Limitation Act established an exceptionally

short period for actions against hospitals. The issue was whether this provision

applied to the wrongful dismissal suit. Cameron J.A. noted that the provision was

designed to protect hospitals against malpractice suits and he doubted that the

legislature had intended it to apply to other types of actions; to do so made no sense.

“I suspect”, he wrote, “that the section as drawn may not represent the real intention

of the Legislature ...”. Despite this suspicion Cameron J.A. felt obliged to give effect

to the Act as written:

25

... care must be taken not to press this line of reasoning too far. The issue after all is

not the reasonableness of the provision. The issue is what did the Legislature intend,

given the language it used?

A less deferential attitude toward the legislative text is evident in Fleming v.

Luxton. The legislation considered in that case was an amendment to

Alberta’s Small Debts Act. Under the Act as originally drafted, persons who wished

to appeal were required to go through certain steps. The amendment in question

extended the period for carrying out the first step from five to 20 days but left the

periods for the other two steps at 10 days. Sellar D.C.J. wrote:

... I refuse to believe that the legislature, in wisely and fairly extending the time for

service of the magistrate to 20 days, intended to remove the significance and

usefulness of this beneficent amendment by leaving the time for filing the notice of

appeal and service of the respondent at 10 days only.

I therefore construe the words “before the expiration of ten days” in sec. 43(2) as

“before the expiration of thirty days”....

This response is perhaps surprising. As legislative provisions go, this one does not

seem so very absurd. And although it is easy to see how the error came about,

namely, through careless amendment, it is far from clear what the legislature in fact

meant to say. Sellar D.C.J. chose to extend the time for carrying out the final two

steps from 10 to 30 days, but he could as easily have chosen 25 days (on the

principle that the legislature intended to add 15 days to each period) or 40 (on the

principle that the legislature intended to multiply each period by four).

A more persuasive exercise of the court’s jurisdiction to correct errors is found in the

judgment of the Supreme Court of Canada in United States of America v. Allard,

addressing s. 34 of the Extradition Act. It provided that “[t]he list of crimes set out in

Schedule I shall be construed according to the law existing in Canada at the date of

the commission of the alleged crime ...”. Despite the limited focus of this provision,

the Court held that it applied to all extradition crimes, not just those listed in the

schedule. In effect, the Court rewrote the provision so that it said: “the list of crimes

set out in Schedule I and any other offences that are extradition crimes within the

meaning of the Act shall be construed” in the designated way. By revising the

provision in this manner, the Court ensured that the protection against the retroactive

application of penal law extended to all extraditable offences. In justifying the Court’s

interpretation, La Forest J. wrote:

It is true that s. 34 applies in terms only to crimes listed in Schedule I of the Act, but

it must not be forgotten that when s. 34 came into force, these crimes were the only

extradition crimes. The Canadian Act was closely modelled on the British statute

except that, unlike the latter, it provided for the addition of [new extradition] crimes

without adding to the Schedule. While the section was drafted in a rather clumsy

manner, the general principle is clearly apparent.

The absurdity here was obvious. There was no possible reason for subsequently

added extradition crimes to have been exempted from s. 34, which set out an

important protection. The origin of the error was also obvious. In preparing Canada’s

extradition legislation, the drafter blindly followed the British Extradition Act and

failed to make the changes required to reflect the adoption in Canada of a different

26

method of adding new extradition crimes to the Act. Finally, it was obvious what

should have been said. The section should have referred to all crimes considered

extradition crimes under the Act.

In Air Canada v. Ontario (Minister of Revenue), the issue was whether Ontario was

entitled to retain tax on aviation fuel it had collected even though the legislation under

which it was collected did not specify a time for payment of the tax. Subsection 2(1)

of the legislation imposed a tax on gasoline while s. 2(2) imposed a tax on aviation

fuel. Paragraph 4(3)(b) required importers of aviation fuel, gasoline or propane to

pay the tax required by s. 2(1) at the time of its entry into Ontario. Morden A.C.J.O.

wrote:

... In my view, it is clear that there was a drafting error in s. 4(3)(b) in the reference

to s-s. 2(1) only. What clearly was intended in s. 4(3)(b) was to refer to the whole of

s. 2 -- so that it would include the tax relating to aviation fuel which is dealt with in s.

2(2).

In reaching this conclusion he relied on a subsequent amendment to the legislation

that corrected the mistake and the explanatory note to the amendment to confirm

“the obvious fact that there was no intention to exclude the payment of tax on aviation

fuel.”

[36] In Strata Plan BCS 1721 v. Watson, [2018] B.C.J. No. 173 (B.C. Supreme Ct.), at

para. 112 to 119, Pearlman J. commented that Canadian courts are generally

reluctant to presume or correct errors in the drafting of legislation. However, Pearlman

J. did confirm that in the case of obvious absurdity, courts may intervene to correct a

drafting mistake. For the statutory provision before the court, Pearlman J. had applied

Professor Sullivan’s 3 criteria required for courts to correct legislative drafting

mistakes or errors, and had corrected that statutory provision because there had been

a manifest absurdity, a traceable error and an obvious correction, which the legislature

had since made [emphasis is mine below]:

Canadian courts are generally reluctant to presume or correct errors in the drafting

of legislation. As Estey J. observed in Morguard Properties Ltd. v. Winnipeg (City),

[1983] 2 SCR 493 at 509:

. . . the Legislature is guided and assisted by a well-staffed and ordinarily very

articulate Executive. The resources at hand in the preparation and enactment of

the legislation are such that a court must be slow to presume oversight or

inarticulate intentions. . . The Legislature has complete control of the process of

legislation, and when it has not for any reason clearly expressed itself, it has all

the resources available to correct that inadequacy of expression. This is more true

today than ever before in our history of parliamentary rule.

However, in the case of obvious absurdity, courts may intervene to correct a

drafting mistake.

In Sullivan on the Construction Statutes, 6th ed.,( Markham: Lexis Nexis Canada

Inc., 2014), Ruth Sullivan writes:

27

sec. 12.6 Jurisdiction to correct mistakes. Most courts acknowledge their

jurisdiction to correct drafting mistakes when there is reason to believe that the text

of legislation does not express the rule that the legislature intended to enact. This

breakdown of communication is generally signalled in one of the following ways:

*the words of the text are meaningless, contradictory, or incoherent, or

*the provision as drafted states a rule or leads to a result that cannot have been

intended.

. . .

sec. 12.8 Unacceptable absurdity. Sometimes it is possible to give meaning to a

provision, but that meaning is so absurd that, in the view of the court, it cannot

have been intended. If there is no way to interpret the provision so as to avoid the

absurdity, the court may consider that it has no choice but to redraft. Ideally in such

cases it will be apparent how the error came about - - through careless amendment

or "bad translation", for example. Ideally, too, it will be clear to the court what the

legislature in fact meant to say. When all three of these factors are present, namely

(a) a manifest absurdity, (b) a traceable error, and (c) an obvious correction, most

courts do not hesitate to correct the drafting mistake. In borderline cases, however,

the response of the courts can be difficult to predict. Much depends on the

individual court's conception of its institutional role.

In United States of America v. Allard, [1991] 1 SCR 861, the Court found and

corrected a manifest absurdity where the legislative draftsperson had followed

British precedent and failed to ensure the Extradition Act applied to all extradition

crimes, not just those listed in a schedule.

The words "section 3.6(2)(e) to (g)" render section 48.1(2), as it was in force at the

time of the proceedings before the CRT, manifestly absurd. The legislature clearly

did not intend to confer power on the CRT to make orders with respect to claims

excluded from its jurisdiction.

As the respondent submits, substitution of the phrase "section 3.6(1)(e) to (g)"

would be consistent with the description "[strata property claims within the

jurisdiction of the tribunal]" and would be harmonious with the purpose of s.

48.1(2), which is to prevent or remedy a significantly unfair action, decision or

exercise of voting rights.

Here, there was a manifest absurdity, a traceable error and an obvious correction,

which the legislature has since made. To the extent it is necessary for the

disposition of this appeal, I would adopt and apply the same correction to the

manifest clerical error in s. 48.1(2) as it was originally enacted as the legislature

has now made.

Accordingly, the CRT had, and continues to have jurisdiction to remedy significant

unfairness on the part a strata corporation.

[37] Furthermore, in Fleming v. Luxton, [1968] A.J. No. 45, 63 W.W.R. 522, at paras. 3 to

20, the Alberta District Court had concluded in respect to the statutory provision

setting out the time of 10 days for filing the notice of appeal and service on the

respondent from the date of pronouncement of judgment had been an absurdity, since

28

there had been no way of interpreting the present situation so as to give any sensible

or meaningful purpose or significance to the 1966 amendments other than to regard

the 10 days for filing the notice of appeal and serving the respondent as an obvious

drafting mistake in light of the statutory amendments that had extended the periods

for service and filing to 20 days on the magistrate. Furthermore, the Alberta District

Court commented that several obvious statutory errors have from time to time been

dealt with in this way by assigning to an offending word exactly the opposite meaning.

In respect to the statutory provision containing that absurdity or drafting mistake, the

Alberta District Court had refused to believe that the legislature, in wisely and fairly

extending the time for service of the magistrate to 20 days, had intended to remove

the significance and usefulness of this beneficent amendment by leaving the time for

filing the notice of appeal and service of the respondent at 10 days only. Accordingly,

the Alberta District Court corrected the legislative drafting mistake by then construing

the words "before the expiration of ten days" in sec. 43(2) as "before the expiration of

thirty days" and further construed "within ten days" in sec. 45(3) as "within thirty days"

[emphasis is mine below]:

The judgment having been duly entered, it was not detected by the appellant's

counsel until October 5. On October 6 both the respondent (plaintiff) and the learned

magistrate were served with the notice of appeal 17 days after the date on which

judgment was given. Proof of such service was filed on October 10. On October 6

application was made to the learned magistrate to set and collect security for costs

and a request was made for the record to be transmitted to the district court, but the

magistrate refused to perform these functions although, following service of notice

of appeal, he is apparently bound to do both under sec. 44 of the Act.

The Small Debts Act, sec. 43 (1) originally prescribed service on the magistrate

within five days after the date of judgment, and went on to provide that the magistrate

should thereupon fix an amount to be deposited by the appellant as security for

costs. The section then provided, upon such deposit, for the magistrate to endorse

upon the notice a memorandum regarding such deposit and the appellant was

required, before the expiry of 10 days from the date of pronouncement of judgment,

to file one of the copies of the notice of appeal with the clerk of the district court and

serve the other copy upon the opposing party.

Sec. 45 allowed the appellant, where, by reason of the death, resignation or absence

of the magistrate or by reason of any other cause beyond the control of the appellant,

he was unable to serve the magistrate, to file within two days after the expiration of

the said period of five days a written notice of his intention to appeal in the office of

the clerk or deputy clerk of the judicial district or sub-judicial district in which the

proceedings were carried on. In that event the appellant, within 10 days of such filing

or within such further period as a judge might allow, might apply to a judge for an

order for directions, as to the service of the notice of appeal on the respondent, the

amount and nature of the security to be filed or deposited and the time and method

of the hearing of the appeal.

All of this procedure, while fascinating no doubt, was quite involved for a layman or

the inexperienced lawyer who might ordinarily be implicated in matters of this

magnitude, and doubtless many potential appeals never got off the ground.

29

Sec. 50, which reads as follows:

"50.

No proceeding under this Act shall be deemed invalid for informality, if there

has been a substantial compliance with the requirements of this Act,"

was often hopefully scanned and quoted as a possible escape hatch from the

inexorable limitation of the five and ten days limitations, but this could not properly

be resorted to as the problem created by the time limitations was not one of

informality. It was a problem of the appellant usually being unable to qualify within

the ridiculously short periods provided for service after pronouncement of the

judgment; "after entry of the judgment" would have been bad enough.

In an amending statute, 1966, ch. 94, an effort was made to alleviate the situation.

Sec. 9 amends sec. 43 (1), and sec. 10 amends sec. 45 (2), in each instance by

striking out the words "five days" and by substituting the words "twenty days."

Nothing was done then or in the 1967 session of the legislature to amend the time

within which the respondent is to be served and, owing to what is believed to be an

oversight, if an appellant for some reason does not serve the magistrate within 10

days after pronouncement of the judgment, it is then too late to file the notice and

serve the opposing party.

A circular from the department of the attorney-general dated September 22, 1966,

stated as follows:

" * * * It appears evident that neither the 1965 nor the 1966 amendments to the Act

provided for any change in the words 'ten days' to read 'twenty' or 'thirty' days.

Inconsistent as it may sound, there appears to be no alternative but to follow the

procedure set out in the Section.

"Consideration has already been given to following the Summary Conviction

procedure for appeal, including the thirty day appeal period. I understand this will be

attended to at the next session of the Alberta Legislature."

Well, it was not and the courts and the public are left to labour under what cannot be

considered as anything less than an unintentional, ridiculous and stultifying

oversight. The fact that such oversights or errors on the part of statute draftsmen are

extremely rare occurrences and that this one will be rectified at some future time

makes the present situation all the more frustrating and intolerable.

There is no way of interpreting the present situation so as to give any sensible or

meaningful purpose or significance to the 1966 amendments other than to regard

the 10 days for filing the notice of appeal and serving the respondent as not being

so written. Several obvious statutory errors have from time to time been dealt with in

this way or by assigning to an offending word exactly the opposite meaning.

In Morris v. Structural Steel Co. [1917] 2 WWR 749, 24 BCR 59, the British Columbia

court of appeal dealt in this latter fashion with a draftsman's error whereby

"undertakers [of certain works] as hereinbefore defined" were later referred to as

30

"hereinafter defined" whereas it was only "hereinbefore" and not "hereinafter" that

the said definitions are given in the statute. Macdonald, C.J.A. states at p. 751:

"There can be no pretence that two definitions of undertakers were intended to be

contained in the Act. It is not a casus omissus but the using of the wrong word by

mere accident as I am firmly convinced.

"I am therefore of opinion that I am not precluded from reading the word 'hereinafter'

as meaning 'hereinbefore.'"

He later refers to Fowler v. Padget (1798) 4 RR 511, at 514, 101 ER 1103, wherein

the whole court consisting of Lord Kenyon, and Grose and Lawrence, JJ. concurred

in similar circumstances in reading the word "or" as if it were "and."

He continues at p. 752:

"Maxwell on Interpretation of Statutes, 5th ed., at p. 30, referring to the literal

construction of statutes and the impropriety of courts adding or omitting words, says:

"'The foregoing elementary rule of construction does not carry the interpreter far; for

it is confined to cases where the language is precise and capable of but one

construction, or where neither the history nor the cause of the enactment nor the

context nor the consequences to which the literal interpretation would lead, show that

that interpretation does not express the real intention.'

"And in the same volume, p. 373, he points out that where the language of the statute

in its ordinary meaning and grammar leads to a manifest contradiction of the

apparent purpose of the enactment, or to some absurdity or hardship, presumably

not intended, a construction may be put upon it which modifies the meaning of the

words, and even the structure of the sentence; that this be done under an irresistible

conviction that the Legislature could not possibly have intended what its words

signify, and that the modifications thus made are mere corrections of careless

language; that where the main object and intention of the statute are clear it must

not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law

except in cases of necessity owing to the absolute intractability of the language

used."

In United Steelworkers of Amer. v. Labour Relations Board (1953-54) 10 WWR (NS)

97 (B.C.), per Davey, J., it is held that the provision in question is meaningless in its

present form because the amendment made by the Industrial Conciliation and

Arbitration Act, 1947, Amendment Act, 1948, 1948, ch. 31, sec. 28, did not delete

the word "or" or make the appropriate changes in punctuation. The intent, however,

is reasonably clear from a consideration of the original text and the amending

legislation, and should not be defeated by the draftsman's mistake.

In Sask. Govt. Insur. Office v. Anderson (1966) 57 WWR 633 (Man.), Molloy, C.C.J.

dealt with a drafting error which caused a statute to read "judgment debtor" where it

was obvious that the term "judgment creditor" should have been used. It was stated

as follows:

"It must be admitted that the language of subsec. (6) is clear, without ambiguity or

any other apparent difficulty. The legislature has said quite plainly that it is for the

judgment debtor to show to the court that the judgment to be registered falls within

one or more of the seven clauses.

31

"Nevertheless, a literal reading may lead, in some instances, to absurdity or injustice,

* * * If it became known to the court, by perusing the material, questioning the

applicant or otherwise, that the original judgment was obtained by fraud, it is

inconceivable that the registering court would be helpless and obliged to grant the

application merely because the judgment debtor did not appear. Similar absurdities

or injustices come readily to mind under each of the clauses of subsec. (6) * * *.

"When a literal application of the statute, however plain its language may be, leads

to such absurdities and injustices as those referred to above, I cannot escape the

conclusion that the legislature never intended what it seems to have said. However

reluctant one must be to construe the apparently clear words of the legislature, I

conclude that I must do so in this instance, holding that subsec. (6) is to be read as

if its first clause did not contain the words 'by the judgment debtor.'

"There is, of course, ample authority for that approach, as set forth at p. 6 of Maxwell:

"'But judges are not always prepared to concede as plain language that which

involves absurdity and inconsistency.

"'In construing wills and, indeed, statutes and all written instruments, the grammatical

and ordinary sense of the words is to be adhered to, unless that would lead to some

absurdity, or some repugnancy 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 that absurdity and inconsistency, but no further. * * *.'

"We ought * * * to give to an Act of Parliament the plain, fair, literal meaning of its

words, where we do not see from its scope that such meaning would be inconsistent,

or would lead to manifest injustice."

In the case at bar, I refuse to believe that the legislature, in wisely and fairly extending

the time for service of the magistrate to 20 days, intended to remove the significance

and usefulness of this beneficent amendment by leaving the time for filing the notice

of appeal and service of the respondent at 10 days only.

I therefore construe the words "before the expiration of ten days" in sec. 43 (2) as

"before the expiration of thirty days" and further construe "within ten days" in sec. 45

(3) as "within thirty days."

In the case at bar the respondent was served with the notice of appeal before the

expiration of 30 days, and in this respect the service requirements of the Act, as

above construed, were complied with in so far as the respondent was concerned.

[38] Moreover, in United States of America v. Allard, [1991] S.C.J. No. 30, there had been

a drafting mistake contained in a statutory provision of the Extradition Act in which the

Supreme Court of Canada had been able to trace the cause of the drafting mistake.

As a result, LaForest J. for the Supreme Court of Canada effectively rewrote that

statutory provision to correct the drafting mistake so that crimes that were listed in the

treaty would also be included in Schedule 1 of the Extradition Act. LaForest J. held

at para. 8 in United States of America v. Allard, that even though the section was

drafted in a rather clumsy manner, the general principle is clearly apparent and that it

32

would be odd if a different rule were applied to crimes listed in Schedule I than to

those mentioned in the treaty only [emphasis is mine below]:

I turn now to the second proposition mentioned earlier, that the treaty applies to a

crime which did not exist under Canadian law when it was committed in the

requesting state. The courts are divided on the issue. Re United States of America

and Smith (1984), 15 C.C.C. (3d) 16 (Ont. Co. Ct.), supports Riopel J.'s opinion in

the present case that the treaty applies only to crimes existing under Canadian law

at the time of their commission; see also In re Counhaye (1873), L.R. 8 Q.B. 410. On

the other hand, the cases of United States of America v. Binder, (Ont. Dist. Ct.),

December 17, 1985, unreported, and California (State) v. Ogoshi (1989), 51 C.C.C.

(3d) 193 (B.C.S.C.), support the view that it is sufficient that the crime be recognized

in Canada at the time of the requisition. In my view, the latter cases do not give

sufficient attention to s. 34 of the Act, which prescribes the manner in which the list

of crimes set forth in Schedule I of the Act is to be interpreted. This section reads as

follows:

34. The list of crimes set out in Schedule I shall be construed according to the law

existing in Canada at the date of the commission of the alleged crime, whether by

common law or by statute, and as including only such crimes, of the description

comprised in the list, as are indictable offences under that law. [Emphasis added.]

It is true that s. 34 applies in terms only to crimes listed in Schedule I of the Act, but

it must not be forgotten that when s. 34 came into force, these crimes were the only

extradition crimes. The Canadian Act was closely modelled on the British statute

except that, unlike the latter, it provided for the addition of crimes without adding to

the Schedule. While the section was drafted in a rather clumsy manner, the general

principle is clearly apparent. It would be odd if a different rule were applied to crimes

listed in Schedule I than to those mentioned in the treaty only.

(E) Courts Will Treat A Gap In Legislation Resulting From Faulty Drafting

Differently From A Drafting Mistake Or Error That Is Found In The

Legislation

[39] In section 12.02(1) of her 7^thedition textbook, Professor Sullivan noted that while

courts may choose to correct drafting errors, it is generally accepted that they have

no jurisdiction to cure gaps in a legislative scheme. Professor Sullivan also observed

that historically courts have distinguished mistakes from gaps on the grounds that

mistakes are attributable to drafters in their failure to correctly express the true

intention of the legislature, whereas gaps are attributable to the legislature itself. And,

since it is not part of a court’s role to second guess the legislature, Professor Sullivan

commented that the primary reason that gaps in legislation cannot be filled by judicial

correction is that courts normally consider that they lack the jurisdiction to cure under-

inclusive legislation, regardless of the reasons for the under-inclusion [emphasis is

mine below]:

The difference between a mistake and a gap

33

While courts may correct drafting errors, it is generally accepted that they have no

jurisdiction to cure gaps in a legislative scheme. Historically, courts distinguished

mistakes from gaps on the grounds that mistakes are attributable to drafters, to their

failure to correctly express the true intention of the legislature, whereas gaps are

attributable to the legislature itself. Since it is no part of a court’s role to second guess

the legislature, gaps cannot be filled.

For obvious reasons, this explanation is inadequate. Some gaps may be the result

of a decision expressly considered and approved by the legislature, but many more

will be the result of inadvertence, faulty planning or faulty drafting. In preparing

primary legislation, the relevant policies and overall scheme are approved by

Cabinet, while the details are worked out by department officials and drafters working

together. What the legislature approves and makes its own, including any

amendments adopted during the legislative process, is the finished product.

It is not really possible to separate the legislature’s part from the drafter’s part. The

primary reason courts cannot cure gaps is that they are normally considered to lack

jurisdiction to cure under-inclusive legislation. This is so regardless of the reasons

for the under-inclusion.

[40] Professor Sullivan also explained, in section 12.02(2) of her 7^thedition textbook, that

when language is over-inclusive, it applies not only to circumstances within the

mischief the legislature sought to cure, but also to circumstances outside that mischief

and therefore outside the intended scope of the legislation. Over-inclusion, Professor

Sullivan noted, is cured by adding words of qualification which limit the legislation to

applications that are appropriate given the legislature’s intent. When legislation is

under-inclusive, it fails to apply to circumstances that need to be covered, or to

address a matter that must be dealt with, to achieve the intended goals. That is what

is meant by a gap in the legislative scheme. Although under-inclusion could also be

cured by the courts, they are generally unwilling to do so. As explained elsewhere,

reading down to cure over-inclusion is considered interpretation, provided it can be

justified, whereas reading in to cure under-inclusion is considered amendment and

must be left to the legislature [emphasis is mine below]:

Over-and under-inclusive legislation

In a perfect world all legislation would be drafted so that interpreting and

applying it to an unfolding reality would produce the effects sought by the

legislature. In an imperfect world there is often a divergence between the two,

resulting in over- or under-inclusiveness. When language is over-inclusive, it

applies not only to circumstances within the mischief the legislature sought to

cure, but also to circumstances outside that mischief and therefore outside

the intended scope of the legislation. Over-inclusion is cured by adding words

of qualification which limit the legislation to applications that are appropriate

given the legislature’s intent. When legislation is under-inclusive, it fails to

apply to circumstances that need to be covered, or to address a matter that

must be dealt with, to achieve the intended goals. That is what is meant by a

34

gap in the legislative scheme. Although under-inclusion could also be cured

by the courts, they are generally unwilling to do so. As explained elsewhere,

reading down to cure over-inclusion is considered interpretation, provided it

can be justified, whereas reading in to cure under-inclusion is considered

amendment and must be left to the legislature. This point is made in a telling

way by J.A. Corry in his seminal article on the interpretation of statutes. He

wrote:

[I]n many of these cases where the judges refuse to extend the operation of the

legislation, the particular expressions used are not at all capable of the extended

meaning which is sought and nothing short of the common-law technique of inducing

a general principle from the particulars would suffice. Therefore, one who holds that

words do impose limits cannot quarrel with many of these decisions.

As Corry points out, the words used in legislative text impose an outer limit

on meaning, and normally there is only limited room for expansion between

the ordinary meaning of a provision and the outer limit fixed by its words. If a

court wishes to go beyond that limit, it must add new words to the text to cover

the overlooked circumstance (i.e., words that expand the scope of the

legislation), replace the specific words with more general words or strike out

words of qualification. These are generally considered types of amendment

rather than interpretation.

(F) How Can A Court Correct A Legislative Drafting Error Or Mistake?

(i) The court may remove or substitute words so that the meaning of

the provision is intelligible and to fulfill the legislators’ intention

[41] To correct a legislative drafting error or mistake, a court may decide to remove or

substitute words in the statutory provision so that the meaning of the provision is

intelligible and to fulfill the legislators’ intention. In section 12.03(1) of her 7^thedition

textbook, Professor Sullivan indicated that where a court encounters words in a

legislative text for which no satisfactory interpretation can be offered, the court may

be justified in striking out the offending language if the text only makes sense without

it. In addition, Professor Sullivan also noted that striking words from a text is harder

to justify than adding words to the statutory provision, because the court cannot rely

on implicit meaning, since the court must conclude that the words to be struck perform

no meaningful function in the text and that their presence is simply a mistake

[emphasis is mine below]:

Effect of striking words

On occasion, courts encounter words in a legislative text for which no satisfactory

interpretation can be offered. In these circumstances, courts may be justified in

striking out the offending language if the text only makes sense without it. More often,

however, the problem to be solved by striking words from a text is over-or under-

35

inclusiveness. Just as adding words to a text can result in either narrowing or

enlarging the scope of the text, so too can the elimination of words.

If words in a provision have the effect of expanding its scope, then striking them

narrows the scope of the provision, as in reading down. Conversely, if the words

restrict the scope of a provision, then striking them expands the scope of the

provision, as in reading in. Striking words from a text is harder to justify than adding

words, because the court cannot rely on implicit meaning. In effect, the court must

conclude that the words to be struck perform no meaningful function in the text,

contrary to the presumption against tautology; their presence is simply a mistake.

This last point was emphasized by the Prince Edward Island Court of Appeal in Aliant

Telecom Inc. v. Prince Edward Island (Regulatory and Appeals Commission), where

the issue was the correct interpretation of the limitation period created by s. 38 of

regulations made under Prince Edward Island’s Revenue Tax Act. It provided that

no reassessment could be made for any “period prior to the four fiscal years

immediately preceding the date of assessment.” Speaking for the Court, McQuaid

J.A. wrote:

I am ... unable to adopt the interpretation propounded by Aliant. It requires that we

read out the word “fiscal.” Essentially the argument of Aliant is that the limitation

period of “four fiscal years” is to be interpreted as four twelve-month periods from the

date of the Notice of Assessment. If this was the intention of the legislators, I am at

a loss as to why they would use the word “fiscal.” One of the basic principles of

statutory interpretation is that words are used for a purpose and they are presumed

to have some meaning.

Since reliance on fiscal years was a plausible choice on the part of the law-maker,

there was no basis for reading it out of the provision.

[42] In Association of Parents for Fairness in Education, Grand Falls District 50 Branch v.

Minority Language School Board No. 50, [1987] N.B.J. No. 544, 40 D.L.R. (4th) 704,

Angers J.A. for the New Brunswick Court of Appeal had removed words which were

of no practical use from the statutory provision to correct the drafting mistake, in order

to make the provision intelligible. Angers J.A. also commented that in rare

circumstances, the court may delete or substitute words in order to make a statute

intelligible and workable [emphasis is mine below]:

In rare circumstances, the court may delete or substitute words in order to make a

statute intelligible and workable. See Pierre-André Côté, Interprétation des lois, p.

342; Drieger, Construction of Statutes (2nd ed., p. 94) and Federal Steam Navigation

Co. Ltd. v. Department of Trade and Industry, [1974] 1 W.L.R. 505. I believe that

such circumstances exist in this case.

Thus, if we delete from sections 3.2 and 3.3 of the Act the words "for persons of the

other official language", words which are of no practical use, the sections read as

follows :

36

3.2 Notwithstanding section 3.1 and subject to section 3.3, a school board for

a school district organized on the basis of one official language may provide

classes or schools in which the language of instruction is [the] other official

language.

3.3 Notwithstanding section 3.2, a school board (organized on the basis of one

official language) shall not provide classes or schools in which the

language of instruction is [the] other official language when

(a) school districts organized on the basis of different official languages

exist in the same geographical area, or

(b) there is in existence in the school district a school board established

under section 18.1.

Obviously, as mentioned earlier, a school board organized on the basis of one

language may offer second language courses to its clientele through immersion,

provided that the clientele requires it.

[43] Moreover, in Aliant Telecom Inc. v. Prince Edward Island (Regulatory and Appeals

Commission), [2004] P.E.I.J. No. 6, 2004 PESCAD 1 (P.E.I.C.A.), the Provincial

Treasury Department of Prince Edward Island had issued a Notice of Assessment to

Aliant Telecom Inc. on December 21, 2001 for purchases made by Aliant during the

1997 calendar year, and on March 28, 2002 for purchases made in the 1998 calendar

year. There had also been a limitation period under the regulations enacted pursuant

to the Revenue Tax Act which provided that the Commissioner of the Regulatory and

Appeals Commission could not consider a period prior to the four fiscal years

immediately preceding the date of the assessment. Aliant had argued to the

Commission that the limitation period applied to prevent collection of sales taxes for

the period from January 1 to December 20, 1997, and from January 1 to March 27,

1998. The Commission ruled that the term "fiscal years" referred to the fiscal years

of the person being assessed. Aliant then appealed to the P.E.I. Court of Appeal,

arguing that the Commission erred in its interpretation of the limitation period. Aliant

contended that the word "fiscal" in the limitation period referred to any 12-month

period. The P.E.I. Court of Appeal held that neither the Commission's nor Aliant's

interpretation of the limitation period was correct, since to adopt the Commission's

interpretation and read in the words "of the taxpayer" after "fiscal years" would create

a different regime for corporate and individual or unincorporated taxpayers, and result

in fluid limitation periods. On the other hand, the P.E.I. Court of Appeal held that to

adopt Aliant's interpretation would be to ignore the legislators' intentions with respect

to the word "fiscal". As a result, the P.E.I. Court of Appeal reasoned that in the

absence of a definition of "fiscal year" in the Revenue Tax Act, it was in compliance

with the legislative text of the Act to construe the phrase as meaning the fiscal year of

the province. At paras. 17 to 23, the P.E.I. Court of Appeal, in deciding not to add

words or to delete the word “fiscal” from the statutory provision to correct the

legislative drafting mistake, held that to adopt the interpretation of "fiscal year"

propounded by the Commissioner as being that of the taxpayer or the consumer

37

requires reading into the regulation the words "of the taxpayer" or the "of the

consumer", for which the consequences of doing so would lead to an uncertainty and

possibly even an absurdity. On the other hand the P.E.I. Court of Appeal decided not

to delete the word “fiscal” from the provision, since they were unable to adopt the

interpretation propounded by Aliant, that the limitation period of "four fiscal years" is

to be interpreted as four twelve-month periods from the date of the Notice of

Assessment, which would have required the Court of Appeal to read out the word

"fiscal" from the provision. Specifically, the P.E.I. Court of Appeal held that if this was

the intention of the legislators, then why did the legislators use the word "fiscal" in the

provision. In addition, the P.E.I. Court of Appeal also emphasized that one of the

basic principles of statutory interpretation is that words are used for a purpose and

they are presumed to have some meaning [emphasis is mine below]:

To adopt the interpretation of "fiscal year" propounded by the Commissioner as

being that of the taxpayer or the consumer requires reading into the regulation the

words "of the taxpayer" or the "of the consumer." Even if this were permissible, the

consequences of doing so lead to an uncertainty and possibly even an absurdity.

While corporate taxpayers or consumers have "fiscal years," unincorporated ones

do not. This interpretation results in there being no limitation period for the

assessment of sales tax allegedly due and owing by unincorporated taxpayers or

consumers. Given the importance of a limitation period both to the taxpayer and the

tax collector this interpretation creates a legally absurd result and it could not

possibly have been the intention of the drafters.

To fill this vacuum the Commissioner argues the applicable fiscal year would then

be the taxation year of an unincorporated taxpayer or consumer established

pursuant to the Income Tax Act which is the calendar year, January 1st to December

31st. If such had been the intention when s. 38 was enacted, I think it would have

been stated more clearly. The Commissioner's position leaves us to speculate as to

the interpretation thereby creating uncertainty.

Further uncertainty is created in the application of the Commissioner's interpretation

when one considers that the fiscal years of corporate taxpayers or consumers can

change as the result of corporate reorganizations and for other legitimate reasons.

This would have the effect of making the limitation period fluid.

I am also unable to adopt the interpretation propounded by Aliant. It requires that we

read out the word "fiscal." Essentially the argument of Aliant is that the limitation

period of "four fiscal years" is to be interpreted as four twelve-month periods from

the date of the Notice of Assessment. If this was the intention of the legislators, I am

at a loss as to why they would use the word "fiscal." One of the basic principles of

statutory interpretation is that words are used for a purpose and they are presumed

to have some meaning.

The purpose of the Revenue Tax Act is to give the Provincial Treasurer the authority

to collect revenue from the consumption of certain goods within the province. This

revenue is designated as "public money" and is accounted for in each fiscal year of

the province by the Provincial Treasurer in the public accounts which are placed

38

before the Legislature. The budget of the province detailing the projected revenue

and expenditures is also prepared and submitted to the Legislature based on the

fiscal year of the province which is the period beginning on April 1st in one year and

ending on March 31st in the next year. See: s-s. 1 (k), 1(q) and 61(2) of the Financial

Administration Act, R.S.P.E.I. 1988 Cap. F-9.

In the absence of a definition of "fiscal year" in the Revenue Tax Act, it would be in

compliance with the legislative text of the Act to construe the phrase as meaning the

fiscal year of the province as defined in s-s. 1(k) of the Financial Administration Act

supra. It would be consistent with the purpose and intent of the Revenue Tax Act to

conclude that any limitation as to the province's ability to collect unpaid sale tax could

be dictated by the parameter's of the province's fiscal year. The adoption of this

definition of "fiscal year" establishes a limitation period which is equally applicable to

incorporated and unincorporated taxpayers. It also promotes the legislative purpose

of the Act, and provides a result which is reasonable and just in the sense that s. 38

of the regulations will be void of uncertainty and ambiguity.

3. IN THE PRESENT PROCEEDING, SHOULD THIS COURT CORRECT THE

LEGISLATIVE DRAFTING ERROR OR MISTAKE CONTAINED IN S. 11.1 OF THE

ZONING BYLAW OR SHOULD IT BE LEFT TO THE TOWN COUNCIL FOR THE

TOWN OF CALEDON TO FIX?

(A) Are The Criteria Required For This Court To Find That It Has The

Jurisdiction To Correct The Legislative Drafting Error Or Mistake In S.

11.1 Present?

[44] Professor Sullivan in her 7^thedition textbook, in section 12.01(3), said that when the

3 criteria of (a) a manifest absurdity, (b) a traceable error, and (c) an obvious

correction are present then most courts would not hesitate to correct the drafting error

or mistake contained in the defective statutory provision.

(i) Is s. 11.1 of the Zoning Bylaw a manifest absurdity?

[45] As s. 11.1 is presently worded with the following, “No personal shall, within any

Environmental Policy Area Zone, use any land, or erect, alter, enlarge, use or maintain

any building or structure for any use other than as permitted in Table 11.1 of

Subsection 11.2 ..”, s. 11.1 makes no sense and is an absurdity:

No personal shall, within any Environmental Policy Area Zone, use any land, or

erect, alter, enlarge, use or maintain any building or structure for any use other

than as permitted in Table 11.1 of Subsection 11.2 and in accordance with the

standards contained in Table 11.2 of Subsection 11.3, the General Provisions

contained in Section 4 and the Parking, Loading & Delivery Standards contained

in Section 5.

[46] Ergo, the first criteria required for this court, if it chooses, to correct the legislative

drafting error or mistake contained in s. 11.1 of the Zoning Bylaw is present.

39

(ii) Is there traceable error in respect to the drafting of s. 11.1 of

the Zoning Bylaw?

[47] This court was not able to trace how the drafting mistake or error had occurred, since

an older or repealed copy or version of the Town of Caledon Zoning Bylaw (Bylaw

#87-250) is not available or been provided to the court. Accordingly, the second

criteria of a “traceable error” required for this court, if it chooses, to correct the

legislative drafting error or mistake contained in s. 11.1 of the Zoning Bylaw is not

present.

(iii) Is there an obvious correction in respect to the drafting of s.

11.1 of the Zoning Bylaw?

[48] If this court were to substitute the word “person” for the present word “personal”

contained in s. 11.1 of the Zoning Bylaw, that remedial rewriting would make the

provision in s. 11.1 sensical, and it would also likely convey the intention of the Town

Council for the Town of Caledon in enacting s. 11.1. Or, if the words, “Service Shop”

were added after the word “personal”, then s. 11.1 would likewise seem to be sensical

and a plausible intention of the Town Council for the Town of Caledon. Therefore,

there is one obvious correction and one other plausible one that would correct the

drafting error or mistake contained in s. 11.1 of the Zoning Bylaw. Hence, the third

criteria required for this court, if it chooses, to correct the legislative drafting error or

mistake contained in s. 11.1 of the Zoning Bylaw is present, albeit there may be two

possible corrections to s. 11.1 that would make the provision applicable to 2 different

types of entities.

(iv) The drafting error or mistake in s. 11.1 of the Zoning Bylaw

should be left for the Town Council of the Town of Caledon to

fix

[49] Under Professor Sullivan’s requirement of 3 conditions for a court to correct legislative

drafting errors or mistakes, only 2 of the 3 criteria are present in this case, namely that

the present wording of s. 11.1 contained in the official version of the Town Of Caledon

Zoning Bylaw #2006-50 is manifestly absurd and that there would be an obvious

correction to the wording of s. 11.1 that would make the provision sensical. However,

the third criteria of a “traceable error” is not present.

[50] In addition, the intention of the Town Council of the Town of Caledon in respect to s.

11.1 cannot be properly determined since a review of the repealed version of the Town

of Caledon Zoning Bylaw (Bylaw #87-250) could not be done. Nor is there available

to the court, a written record of the Town Council’s discussions about the enactment

of s. 11.1 of Zoning Bylaw #2006-50. Moreover, the intention of Town Council of the

Town of Caledon in respect to the enactment of s. 11.1 cannot be determined from

any other source, as none are readily available nor has any been made available or

accessible to the court.

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[51] Furthermore, judicial correction of the present form of s. 11.1 of the Zoning Bylaw by

substituting the word “personal” with the word “person”, if that were indeed the

intention of the Town Council of the Town of Caledon for that provision, would in effect

be rewriting or redrafting s. 11.1, which would be properly the jurisdiction of the Town

of Caledon to do.

[52] Accordingly, this court will not usurp the Town Council of the Town of Caledon’s

legislative role by correcting the legislative drafting error or mistake contained in s.

11.1 of the Town of Caledon Zoning Bylaw #2005-50 and will leave the defective

provision for the Town Council of the Town of Caledon to fix.

(B) If The Legislative Drafting Error Or Mistake Will Not Be Corrected By This

Court Then What Should Be Done With The Defendants’ Charges That

Are Before This Court?

[53] Because this court will not correct the legislative drafting error or mistake contained

in s. 11.1 of the Zoning Bylaw, as this court recognizes the institutional separation

between the lawmakers and the courts and that drafting legislation is the jurisdiction

of legislators, then what should be done with the defendants’ charges that are before

this court?

[54] Subsection 36(2) of the Provincial Offences Act, R.S.O. 1990, C. P.33, intended that

certificates and informations would not be quashed, unless amendments or particulars

would fail to satisfy the ends of justice. Ergo, the facial defects that had been

envisioned to make certificates or informations quashable under s. 36 would have to

be “apparent” defects that are easily identified, such as the missing signature of the

enforcement officer on the certificate or information, or obvious defects that go to the

jurisdiction of the court to hear the matter. Furthermore, this notion that there would

be very few defects that would have provided the basis for quashing a certificate or

information after the enactment of the Provincial Offences Act had been

acknowledged by Hurley J. in R. v. Day, [1985] O.J. No. 1798 (Ont. Dist. Ct.). At

paras. 21, 34, and 35 of that judgment, Hurley J. noted that in their textbook, “Ontario

Provincial Offences Procedure (1980)”, the authors, Drinkwalter and Ewart, had

commented that the presence of s. 36 had been a clear direction to the courts that

defective informations were not to be quashed except in unusual circumstances, and

that perhaps the only basis that remained for quashing an information is a failure to

relate to an offence known to law [emphasis is mine below]:

In R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in dealing with a duplicity argument,

Dickson J., as he then was, said this at p. 38:

"The rule developed during a period of extreme formality and technicality in the

preferring of indictments and laying of informations. It grew from the humane desire

of judges to alleviate the severity of the law in an age when many crimes were still

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classified as felonies, for which the punishment was death by the gallows. The

slightest defect made an indictment a nullity. That age has passed.

Parliament has made it abundantly clear in those sections of the Criminal Code

having to do with the form of indictments and informations that the punctilio of an

earlier age is no longer to bind us.

We must look for substance and not petty formalities."

…

The parallel sections of the Criminal Code and the Provincial Offences Act are

compared in Drinkwalter and Ewart, Ontario Provincial Offences Procedure (1980),

at p. 139, et seq., and at pp. 336-37. In the authors' view (at p. 143),

"The Act has mandated an entirely new philosophy on this subject, the application of

which governs, and is crucial to the interpretation of these provisions ... .

...

This section constitutes a clear, unequivocal direction to the courts that defective

informations are not to be quashed, except in unusual circumstances."

I extract two further quotations from that text, the first at p. 147 and the second at

p. 149:

"It is therefore clear that even in criminal matters defects in language do not make

informations void.

Perhaps the only basis now for quashing an information is a failure to relate to an

offence known to law. If it relates to an offence, but simply misdescribes it or leaves

out one or more essential elements or is duplicitous, an information is defective, but

is not a nullity. It can and should be amended.

...

Generally speaking it would appear that only types of defects which might not fall

within the ambit of s. 35 would be amendments to charge an entirely different

offence... ."

[55] Moreover, in R. v. DeSousa, [1992] S.C.J. No. 77, Sopinka J., writing for the Supreme

Court of Canada, noted at paras 14 to 16, that the main purpose behind the rule that

required an objection for a defect apparent on the face of the indictment be brought

before hearing any evidence in respect to the charge, had been to ensure that defects

that are curable by amendment are attacked before pleading, since if the defect is not

cured by a proposed amendment, then the defect may be considered to be waived by

the plea entered by the accused. On the other hand, he also acknowledged that

where the motion to quash challenges the validity of the law under which the accused

is charged, then the requirement to bring this motion before pleading has no

application, as such defect goes to the jurisdiction of the court to proceed with the

charge and would not be subject to that temporal restriction. Instead, Sopinka J.

confirmed that challenging the validity of the law could be brought at any time

[emphasis is mine below]:

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The respondent submits that the learned trial judge erred in ruling on the

application by the appellant to declare that s. 269 of the Criminal Code was of no

force or effect before hearing the evidence at trial. It is clear that as the liberty

interest of the appellant is ultimately at risk in this appeal, the appellant has the

right to question the constitutional validity of the provision under which he is

charged. This is the case even though the unconstitutional effects may not be

directed at the appellant per se (R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 63).

The appellant submits that this Court has the power and the duty to review the

elements of criminal offences and this is not disputed by the Crown. As the

elements of the offence necessarily affect adjudication under it, an accused has

standing to contest the elements of any provision under which he or she is charged.

While it is incumbent on a court to consider such issues at some point in its

deliberations, it is less clear in what circumstances this review must or should be

done prior to hearing evidence.

The general rule with respect to attacking an indictment by reason of a defect in

law is that a motion to quash the indictment for a defect apparent on the face

thereof must be made before pleading. This rule is subsumed in the provisions of

s. 601(1) of the Code, which requires the motion to be made before the plea, and

thereafter only with leave of the court. The main purpose of the rule, and of s.

601(1) to the extent that it embodies the rule, is to ensure that defects curable by

amendment are attacked before pleading, since if not cured by amendment they

may be waived by a plea. (See R. v. Côté, [1978] 1 S.C.R. 8, at p. 15; R. v.

Villeneuve (1984), 54 A.R. 265 (C.A.), at p. 267; R. v. Cook (1985), 20 C.C.C. (3d)

18 (B.C.C.A.), at pp. 30-31 and 40; R. v. R.I.C. (1986), 17 O.A.C. 354, at pp. 357-

58; R. v. Peremiczky (Zoly) (1973), 25 C.R.N.S. 399 (B.C.S.C.), at p. 400; and R.

v. Denton (1990), 100 N.S.R. (2d) 174 (Co. Ct.), at p. 176.)

The temporal requirement of moving before pleading has no application, however,

to a motion to quash which questions the validity of the law under which the

accused is charged. I expressly refrain from addressing the effect of a plea of guilty.

(See R. v. Tennen, [1959] O.R. 77 (C.A.), aff'd [1960] S.C.R. 302, at p. 83 O.R.,

and R. v. Sarson (1992), 73 C.C.C. (3d) 1 (Ont. Gen. Div.). Such a defect goes to

the jurisdiction of the court to proceed with the charge and is not subject to the

temporal restriction in s. 601(1). Such an application may be brought at any time.

Indeed, where the trial court is a court of inferior jurisdiction, a motion may be

brought before trial to prohibit the trial court from proceeding. See Canadian

Broadcasting Corp. v. Attorney-General for Ontario, [1959] S.C.R. 188, rev'g [1958]

O.R. 55 (C.A.), which aff'd [1957] O.R. 466 (H.C.). There is no question, therefore,

that the trial judge has jurisdiction to hear and dispose of a motion to quash the

indictment on the grounds of constitutional invalidity. Whether he or she is bound

to do so or whether as a matter of practice should do so is more problematic.

[56] Consequently, s. 11.1, as it is presently worded in the official version of the Town of

Caledon Zoning Bylaw #2006-50, is an absurdity, and as such, it does not relate to

an offence known to law. Ergo, since Information #0661-999-20-3574 contains 4

counts that charge the defendants with committing an offence under s. 11.1,

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Information #0661-999-20-3574 is quashed for its failure to relate to an offence known

to law.

(C)How Does This Ruling Accord With This Court’s Rulings Made Previously

On May 20, 2022?

[57] This court had ruled in Caledon (Town) v Eagle Demolition & Excavation Inc., [2022]

O.J. No 2342, 2022 ONCJ 241 (Ont. C.J.), that the 4 counts set out in Information

#0661-999-20-3574 were legally sufficient, as the 4 counts had expressly used

wording for the offence that is the same wording that is set out in the section or

statutory provision creating the offence, as well the section number of the statutory

provision creating the offence was also expressly referred to in all 4 counts, and that

all 4 counts stated an offence known to law, namely “use the land … for a use other

than as permitted in Table 11.1 of s. 1.2”, which contravenes s. 11.1 of the Town of

Caledon Zoning Bylaw. However, the legislative drafting error or mistake in s. 11.1 of

the Zoning Bylaw had not been raised earlier and this court in the previous rulings did

not know if the online version of Town of Caledon Zoning Bylaw #2006-50 was a

certified and official copy of the Zoning Bylaw and whether the drafting error or mistake

had only been on the online version of the Zoning Bylaw and not necessarily on the

certified and official copy of the Zoning Bylaw, but since the prosecution has admitted

that the version of Zoning Bylaw #2006-50 found on the Town of Caledon website is

an official certified and registered copy of the Zoning Bylaw, then s. 11.1 as presently

drafted is not related to an “offence known in law”.

4. RULING IN RESPECT TO THE LEGISLATIVE DRAFTING ERROR OR MISTAKE

CONTAINED IN S. 11.1 OF TOWN OF CALEDON ZONING BYLAW #2006-50 AND

DISPOSITION OF THE DEFENDANTS’ CHARGES

[58] The legislative drafting error or mistake contained in s. 11.1 will not be corrected by

this court and that the Town Council of the Town of Caledon, if it desires to, will have

to amend s. 11.1 of Caledon Zoning Bylaw #2006-50, so that it will contain a properly

worded offence. Consequently, Information #0661-999-20-3574, which contains 4

counts and which charge the defendants, Eagle Demolition & Excavation Inc., Gurdev

SIDHU and Jaskaran SIDHU with committing offences under s. 11.1 of the Town of

Caledon Zoning Bylaw #2006-50 will be quashed as the charges do not contain or

relate to an offence known in law.

Dated at the Town of Caledon on July 20, 2022.

____________________________

QUON J.P.

Ontario Court of Justice

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