Legistics
There- words

Legistics est un recueil d’articles portant exclusivement sur les questions de rédaction en anglais des textes législatifs. La nature même de l’ouvrage fait en sorte qu’il n’est offert qu’en anglais.

Discussion

"There-" words are words that begin with "There-" and end with a preposition, usually "at", "for", "from", "in", "of", "to", "under" or "with". They have been said to be "thrown in gratuitously to give legal documents that musty legal smell".[1]

Instead of using "There-" words, legislative counsel should use the appropriate preposition with a noun or pronoun. In the case of "thereof", legislative counsel can use the possessive: for example, "unload any conveyance or open any part thereof" should be redrafted as "unload any conveyance or open any of its parts". In addition, "There-" words that refer to places can often simply be replaced by the word "there".

Redrafting is more difficult when "There-" refers to a noun phrase that is not explicitly stated but merely implied by another part of speech, such as a verb. Take for example "An Act to amend the XX Act and to amend other Acts in consequence thereof". To avoid "thereof", one must first think of the noun phrase to which "There-" refers, that is, amending the XX Act. The title therefore means "An Act to amend the XX Act and to amend other Acts in consequence of amending the XX Act", which can then be re-drafted as " An Act to amend the XX Act and to make consequential amendments to other Acts".

Avoiding "There-" words not only results in plainer language, but also often resolves ambiguities about their antecedents. A typical ambiguity is found in "a corporation with a subsidiary along with the directors thereof", in which it is unclear whether "thereof" is referring to "corporation" or "subsidiary". This provision should be redrafted as either "a corporation with a subsidiary along with the directors of the corporation", or "a corporation with a subsidiary along with the directors of the subsidiary", depending on the intended meaning.

Ambiguity may also arise when a plausible antecedent of a "There-" word is implied by a verb.

An example of this latter sort of ambiguity was addressed by the Supreme Court of Canada in Chrysler v. Competition Tribunal (1992), 92 D.L.R. (4th) 609 at 618, although the court itself cast doubt on the interpretation that the antecedent of the "There-" word was implied by the verbs "hear and determine", as had been argued. The Court was considering subsection 8(1) of the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.) which says:

8. (1) The Tribunal has jurisdiction to hear and determine all applications made under Part VIII of the Competition Act and any matters related thereto.

8. (1) Le Tribunal entend les demandes qui lui sont présentées en application de la partie VIII de la Loi sur la concurrence de même que toute question s'y rattachant.

Gonthier, J commented:

In English, the phrase "any matters related thereto" may refer to the applications or to their hearing and determination, though to my mind, the latter reading is constrained [sic] and does not reflect the natural meaning of the words, namely "… hear and determine all applications made under Part VIII of the Competition Act and hear and determine all matters related to the applications". In French, "s'y rattachant" can only refer to the noun "demandes", and not to the verb "entend", or otherwise the clause would read "toute question se rattachant aux auditions".

Although the Court was able to resolve the ambiguity, the issue would have been avoided altogether if "to the applications" had been used instead of "thereto".

Legislative counsel should also beware of situations in which redrafting to avoid "There-" words itself leads to ambiguity, which can happen when there is a modifying phrase following the "There-" word. For example,

"This Part applies to every Canadian corporation and to every subsidiary thereof that has more than three directors".

As drafted, this is not ambiguous. However, if this provision were redrafted as "…to every subsidiary of a Canadian corporation that has more than three directors", it would be ambiguous whether "that has more than three directors" applies to "Canadian corporation" or to "subsidiary", as in the original version. Further redrafting is needed:

  • "This Part applies to every Canadian corporation and, if such a corporation has more than three directors, to its subsidiaries".
  • "This Part applies to every Canadian corporation and, if a subsidiary of such a corporation has more than three directors, to the subsidiary".

Footnote

[1] B. Garner, A Dictionary of Modern Legal Usage (2nd ed.) (Oxford U. Press: 1995) at 401.

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