Overlap and Conflict
| Author | Ruth Sullivan |
| Pages | 317-338 |
317
CH AP TE R 19
OVERLAP AND
CONFLICT
A. OVERVIEW
Because of the pervasiveness of law in modern life, it is normal for a
single event or set of facts to be governed by more than one legislative
provision or by both legislation and the common law. For example, the
use of rented premises for operating a d aycare centre might simultan-
eously be subject to provisions in the Landlord and Tenants Act, the
Professional Child Care Act, the Employment Standards Act, various mu-
nicipal bylaws, as well as common law contr act, tort, and restitutionary
law, or the Civil Code of Québec. The rules governing overlap are der ived
partly from constitutiona l law principles such as the sovereignty of Par-
liament and partly from common law presumptions about drafting and
legislative intent. The most important of these is the presumption of
coherence, the presumption that the legislature knows its own statute
book and intends all additions to t hat statute book to produce con-
sistent rules and coherent schemes.
In Thibodeau v Air Canada,1 the Supreme Court of Canada recently
offered an overview of the methodology to be relied on in de aling with
overlapping provisions. The issue in the case was the jurisdiction of
the Federal Court to award dam ages for a breach of the appellants’ lan-
guage rights that occurred during international air travel. Subsection
77(4) of the Official Languages Act provided:
STATUT ORY INTERPR ETATION318
Where . . . t he Court concludes that a federal institut ion has failed to
comply with this Act , the Court may grant such remedy a s it consid-
ers appropriate and just in t he circumstances.
Air Canada cl aimed that an award of damages was barred by the Car-
riage by Air Act, which incorporated the Montreal Convention2 into Can-
adian law. As interpreted by the court, the Convention’s limitation on
claims for damages aga inst international air ca rriers did not permit an
award of damages for breach of langu age rights. Justice Cromwell wrote:
The appellants contend th at there is a conflict between two act s of
the same legisl ature . . . , that the exclus ion of damages during inter-
national air t ravel conflicts with the power to award an “appropri ate
and just” remedy.
The legal framework that govern s this question is not compli-
cated. First, court s take a restrictive approach to wh at constitutes
a conflict in thi s context. Second, courts find th at there is a conflict
only when the existence of t he conflict, in the restrictive se nse of the
word, cannot be avoided by inter pretation. Overlap, on its ow n, does
not constitute conflict in t his context, so that even where the a mbit
of two provisions overlaps, t here is a presumption that they b oth
are meant to apply, provided that they c an do so without producing
absurd result s. This presumption may be rebutted if one of the pro -
visions was i ntended to cover the subject matter exhaust ively. Third,
only where a conflict is unavoid able should the court resort to statu-
tory provis ions and pri nciple.3
This legal framework is exam ined in more detail below.
B. OVER LAP WIT H OTHER LEGISLATION
When two (or more) legislative provisions apply to the same fact s, there
are four possibilities:
1) The overlapping provisions do not conflict and, since both apply, the
court gives effect to both.
2) The overlapping provisions do not conflict, but the court concludes
that one of the provisions was mea nt to be exhaustive and therefore
applies to the exclusion of the other.
2 Convention for the Unificatio n of Certain Rules for Internatio nal Carriage by Air,
RSC 1985, c C-26.
3 Thibodeau, above note 1 at paras 91–92.
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