Achieving Unity in the Interpretation of Federal Private Law:
Legal Framework and Fragments of Judicial Discourse

I. Interpretation of Federal Legislation in the Absence of
Formal Unity of Federal Private Law

B. Seeking Unity: Interpretation of Federal Private Law Legislation by the Judiciary

The application of provincial private law as suppletive law in the absence of an explicit reference by Parliament calls for action on the part of the interpreter. The interpreter is dealing with a private law provision in which there is a gap, and thus determines, in order to apply an enactment, that reference must be had to sources of provincial law. While there is an historical and constitutional basis for referring to that law, the practical necessity is essentially based on the situation in the enactment itself and the judgment of the interpreter. When dealing with an uncertain or incomplete private law provision, someone interpreting federal legislation enjoys a degree of latitude, or even a degree of power, in determining the sources of federal private law. The interpreter may determine the meaning of the norm by following various interpretational methods, relating to various systems of reference. However, that latitude is not complete, and is nonetheless guided by issues of jurisdiction or authority. In Section (1), we will discuss how a reader interprets a private law provision where it is uncertain or incomplete, and in what cases the reader must refer to provincial law; in particular, we will examine the relationship between the ordinary procedures and those that are specific to complementarity. In Section (2), we will consider the prerequisites for judicial interpretation, in order to establish the limits on the power of the courts in respect of the unification of federal private law notwithstanding the principle of complementarity.

1. Applicable Principles of Interpretation

Parliament cannot foresee everything. When dealing with an uncertain or incomplete private law provision, the reader must interpret it in order to determine its meaning.[170] To that end, they will interpret the provision in light of various factors or indicators relating to, for example, the wording or the historical or legislative context. However, the question arises of whether or when in this process the interpreter will decide that reference must be had to provincial law as suppletive law, and in particular what the relationship is between the ordinarily applicable principles of interpretation and the principles relating to the complementarity of provincial private law. As we will see, the answer to that question is important, because it establishes the extent of the interpreter's power to determine the degree of autonomy of the federal legislation, by establishing what latitude is available to the interpreter in dealing with the text before referring to extrinsic sources of provincial law. In Section (a), we will examine how the comprehensive approach to interpretation, which is now the rule in Canadian law, can be integrated with the principles relating to the complementarity of bodies of law. In Section (b), we will examine three specific difficulties in relation to the principles of interpretation that could modify the outcome of this integrated approach.

(a) Integrated Comprehensive and Complementary Approach

A federal private law provision is subject to the same principles of interpretation as any other provision of federal legislation. For the purposes of this study, it is not necessary to explain in detail the principles that are ordinarily applicable to legislation. They are in fact very numerous, and given that there is no exhaustive codification or compilation of these principles,[171] it would certainly be presumptuous to attempt any statement of them. Because our objective is primarily to consider how the principle of complementarity is integrated into that body of rules, we prefer to limit our preliminary comments to the most general principles of interpretation as recognized by the courts or in the Interpretation Act[172] It should also be noted that these "principles", as such, have no undeniable mandatory effect, notwithstanding that they are recognized by the courts, and serve mainly to provide a process to be followed, an "approach", in determining the meaning of a provision. In short, we prefer, in this context, to think of and discuss them as methods of interpretation rather than as "rules", properly speaking, in spite of the fact that they are described as such in the Interpretation Act.[173]

Very broadly, we can think of statutory interpretation as operating along two main axes. The first provides a way of separating the intrinsic from the extrinsic, by basing the interpretation on either the text of the provision or its specific or general context, respectively. The second provides a way of separating the origin and the objects, by basing the interpretation on either the intention of Parliament (what motivations, reasons or plans the provision involved when it was originated) or the object of the provision (the effect it tends to produce; its impact and effects when it is applied), respectively.[174] In any event, we find this kind of dual perspective in the formula that is followed today, setting the general parameters for the so-called "modern" approach to interpretation. That approach, which originates in the literature, as stated by Elmer Driedger and repeatedly recognized and applied by the Supreme Court, essentially states that a text must be interpreted in light of its principal dimensions:

Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[175]

Thus, under this formula, the words of an enactment cannot be interpreted solely on the basis of "their grammatical and ordinary sense"; the "entire context" of the words in the provision must be considered, "to be read ... harmoniously" with the scheme of the Act, the object of the Act and the intention of Parliament.[176]

That multidimensional conception of interpretation has been expressed, in different form, in two principles laid down by the Parliament of Canada in the Interpretation Act.[177] The first, which is set out in Section 10, states that the law shall be considered as always speaking, and provides that it "shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning".[178] The second, which is set out in Section 12, is essentially intended to guarantee a fair and large interpretation of enactments that are remedial in respect of the situations in issue:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

As may be seen, the Interpretation Act contains principles similar to those stated in Driedger's formula. Those principles, and in particular the principle stated in Section 12, promote an open and multidimensional interpretation of enactments. They reaffirm the importance of considering legislation not only in terms of its literal meaning, but also in terms of its overall context (in this case represented by its "spirit" and "intent") and considerations of fairness and effectiveness.

Must we then conclude that we can ignore the complementarity of provincial law in interpreting federal legislation? That it is possible, using that broader approach, to identify the meaning of a private law provision otherwise than by referring to provincial law that applies as suppletive law? The question of the relationship between the ordinary principles of interpretation and the principles relating to complementarity did not arise until recently, in spite of the fact that complementarity had been in operation before those principles were recognized.[179] In reality, the question of the practical articulation of the principle of complementarity in the context of the general principles of interpretation has been raised to good effect since the enactment of sections 8.1 and 8.2 of the Interpretation Act.[180] A brief discussion of those new sections is therefore essential. First, for a general method of interpreting federal legislation that might involve a reference to provincial law, Section 8.1 of the Interpretation Act provides as follows:

... unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.[181]

Moreover, Section 8.2 sets out a rule that specifically addresses the interpretation of private law terminology in federal legislation. It provides that "unless otherwise provided by law", that terminology must be understood in a sense that is compatible with the civil law or the common law of the province in which it is being applied.[182] That rule provides a sort of practical method for applying the principle of complementarity recognized in Section 8.1.[183]

In our view, these newly-stated principles of interpretation should not be considered separately from the existing ordinary principles. Although the principle of complementarity refers to sources of law that originate in separate legal systems, it actually differs only in appearance from the comprehensive, multidimensional approach referred to earlier. The complementarity principle can easily be incorporated into the comprehensive approach, which ultimately seeks to unify the various ways of determining the meaning of a provision.[184] The existence in an enactment of an implicit reference to provincial law (s. 8.2), the need to refer to that law as suppletive law (the last portion of s. 8.1) and the availability, in systemic terms, of an autonomous body of private law in the provincial sphere (introductory portion of s. 8.1) can all be considered to be components of the "overall context" of the legislation, the "intention" of Parliament or the attainment of the "object" of the legislation. Ultimately, it seems to us to be reasonable to say that the plurality of formal sources of federal private law does not engender any break or disconnect in the interpretive process. The search for meaning is not limited by the same formal constraints that apply to the legislative order, and may operate across, if not above, the positive law legal systems, provided only that, for constitutional reasons, reference must be made to the suppletive provincial private law, where necessary, in order to apply the enactment.[185]

Thus the application of provincial sources cannot always be considered as running counter to the objectives of the legislation.[186] As Professors Brisson and Morel have shown, complementarity is often applied precisely to allow the objects of the legislation to be attained and its end results achieved. They further demonstrated that federal private law legislation is superimposed on pre-existing legal relationships governed by provincial law, for example in relation to bankruptcy or taxation.[187] When the "overall context" of the legislation must be considered, the total fabric out of which the legislation or regulation has been fashioned, and of which the supplementary provincial law is, on the periphery, an integral part, must be taken into account.[188] As a further illustration, we can consider linguistic or terminological references to provincial law, even if implicit, as expressions of the intention of Parliament to effect such a reference. That intention, whether implicit or presumed, would essentially reflect the intention of Parliament to leave a normative void in the legislation and refer to extrinsic sources for the purpose of applying a provision.[189] As a background canvas, it would also imply de facto recognition of the equality of the legal traditions and the suppletive nature of the provincial private law.[190] Because general jurisdiction over private law is assigned to the provinces, a desire to rely on the diverse sources of private law seems to us, and this is the least that can be said, to be as valid and acceptable as a presumption of the intention that federal legislation must apply uniformly in all the provinces.[191]

(b) Specific Problems: Circumscribing Complementarity

Although interpretation of federal private law provisions takes place on a continuum, there are still traps to avoid and problems to solve. On this point, there are three aspects that we find to be particularly problematic that should be clarified before analyzing the power of the courts to unify the sources of federal private law in interpreting legislation. The first problem arises from the grammatical method of interpretation; by stressing the ordinary meaning of words, it tends to cut off private law provisions from the overall context in which they are laid down. The second is more general, and involves the sequential or logical order to be followed in the process of interpreting federal private law provisions. The third arises where federal legislation, being statute law, is envisioned as being in an oppositional relationship with a common law system.

(1) Grammatical Method

Section 8.1 of the Interpretation Act provides for the application of the "rules, principles or concepts" of a province's private law if "it is necessary to refer" to them. The word "necessary" is particularly important here; in fact, it has been central to a number of decisions that have sometimes concluded there was no relationship of complementarity.[192] While the meaning determined from the context of a provision, the objective of the statute or other considerations may assist in determining whether it is necessary to refer to the suppletive law, more immediate recourse may be had to a textual approach to determine if it is necessary to do so.[193] The grammatical method of interpretation, which is one element among others in the comprehensive approach, provides that, as a rule, words must be given their ordinary meaning to understand a provision.[194] It assumes that Parliament speaks in common language, and accordingly tends to favour that language rather than technical language.[195] It is sometimes also accompanied by another rule of strict textual interpretation, the "plain meaning rule", which holds that it is not necessary to consider the context of a provision where the meaning of the provision is clear on its face.[196]

On the question of implicit references to provincial private law, the issue is then whether the use of the ordinary meaning of ordinary language, or a plain reading, will avoid referring to provincial law as suppletive law. There has been some dispute regarding that issue[197] and it is not certain, indeed, that a provision that uses words in their ordinary sense implies that such a reference is necessary. While we recognize from experience that there are numerous grey areas and the line between language and law is not always clear in reality,[198] we believe that the occurrence of the ordinary meaning of ordinary language in fact obviates the need to refer to provincial law as suppletive law, since provincial law is needed, in theory, when the meaning of a provision is unclear to the reader.[199] That is in fact what the new rules of interpretation, in particular Section 8.2, provide; they stress the technical aspects of provincial private law and refer to the meaning that is affiliated with or inherent in that law.[200] There is therefore no need to refer to the specialized "dictionary" of provincial private law when a provision uses terms in the ordinary sense or when their meaning is clear.[201] With respect to the aspects determined by the "texture" of the norm, we commented earlier on the importance of basing complementarity on the visible, if implicit, presence of certain forms of reference to provincial law.[202] Those linguistic references, as indicators of meaning to be found extrinsically, are most often at the centre of harmonious interaction between federal legislation and provincial private law.[203]

(2) Logical Sequence of Interpretation

Based on this conclusion, we can foresee a second methodological problem. What order should be followed in analyzing private law provisions to determine their meaning and normative content? Several approaches have been proposed, that take different routes.[204] The main problem is determining whether to start by characterizing the provision as a private law provision, adopting the theory of complementarity of provincial law, before doing a literal or contextual analysis to determine whether the legislation is an exceptional case of "dissociation" from provincial private law. That problem, which reveals different preconceptions of the interpretation of federal legislation, may have practical importance, as some judgments have shown.[205]

It seems to us, from a perspective that incorporates complementarity into the overall interpretation process, that it is self-evident that we must refer first to the legislation to look for the meaning, before considering the application of any suppletive source. While complementarity, at the fundamental legal level, relies on the general jurisdiction of the provinces in relation to property and civil rights, it is nonetheless itself a premise in the process of interpretation. In other words, it cannot be validly argued that there is complementarity in principle, in the interpretation of federal legislation, because there is no complementarity unless the legislation is incomplete. On this point, we concur in the position take by Professors Brisson and Morel, who are careful to allow the judge sufficient latitude in interpreting:

"Whenever a federal statutory provision uses a private law concept without defining it or otherwise assigning some specific meaning to it, and whenever a statute falls short of comprehensively governing a question of private law or lacks a formal incorporating provision, the omission must be remedied by referring ..." (emphasis added). [206]

Thus the interpreter should first examine the provision in its grammatical and ordinary sense, in particular in order to identify any technical concepts that call for specialized definitions. In the comprehensive approach, the interpreter will then refer to the other dimensions of interpretation, for example by tracing concentric circles from interior to exterior (the law - the legislative corpus - extrinsic sources), and from origin to end results (history - objectives - effects). When the interpreter is unable to determine the meaning of a provision on its face or in its specific (immediate or relative) context, when a legislative vacuum is found to exist, then they will refer to extrinsic suppletive sources, which must, under the Constitution, be found in provincial law, where the issue is one of private law.[207] When seen in this way, while complementarity is based on the general jurisdiction of the provinces, it appears to be an exception rather than the rule, if we rely on the process of interpretation only and if we further consider the paramount legislative authority of Parliament.[208] In fact, in our opinion, that is what the expression "if . it is necessary" in Section 8.1 of the Interpretation Act implies; that expression acts as the pivot for interpretation, between complementarity and dissociation, and would undoubtedly have been theoretically sufficient to identify the boundaries of federal legislation (in respect of which the expression "unless otherwise provided by law" seems to play a dual role).[209]

(3) Federal Law as opposed to Jus Commune

Similarly, a third interpretation problem arises if we conceive of federal legislation, as statute law, in terms of a dichotomy with a common law system. Earlier, we concluded that there is no federal common law and that complementarity, strictly speaking, calls for the application of provincial private law as suppletive law in applying federal legislation. This complementarity is analogous to the relationship between, for example, the Civil Code of Quebec and other specific legislation. However, it is not identical, and the analogy, as we demonstrated earlier,[210] is essentially limited to the mechanism operating in the suppletive relationship. However, in the process of interpretation, confusion may set in, and the legislation may be interpreted in reference to, or in opposition with, some supposed common law. We know that the interpretation of statute law is subject to specific principles of interpretation, more specifically in the common law system.[211] The conception of the relationship between federal private law legislation and the common law as a dichotomy may therefore lead to unexpected consequences when a private law provision is interpreted, and might render the interpretation at odds. In fact, those consequences derive from an often unconscious logical backdrop present in the mind of the interpreter.

From a perspective that is predetermined by a systemic vision of the law, the interpreter will then, for example, assign considerable weight to the fact that federal legislation is paramount (in relation to the provincial suppletive law), or presume that the law is closed to the general law by constituting an "exhaustive code".[212] As well, it has been argued in the literature that the interpreter may rely, in terms of suppletive sources, on a form of unenacted federal common law that is discovered by the courts.[213] The perceived dichotomy between statute law and common law has also been cited in proposing that federal legislation enjoys a degree of autonomy, the argument being that federal legislation does not always correspond to "reform legislation", but may also be an expression of "program legislation".[214] In our view, this kind of reasoning is incorrect and creates problems in that it reveals an organic, or unitary, vision of federal private law and is based on an intra-systemic or mono-systemic intellectual premise. That vision leads to a drift in the interpretation of federal enactments toward autonomous sources, and fails to consider the logical process based on constitutional principles that mandate[215] recognition of the plurality of formal sources and reference, if it is necessary, to suppletive sources of provincial law, by operation of complementarity.

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