Overlap and Conflict
| Author | Ruth Sullivan |
| Profession | Faculty of Law, University of Ottawa |
| Pages | 303-320 |
303
CHAP TER 15
OVERLAP AND
CONFLICT
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 legi slation and the common law. Such overlaps
are governed b y complex rule s, derived p artly f rom constit utional law
principles such as t he sovereignt y of Parliament and pa rtly from com-
mon law presumptions about draft ing and legislative intent.
A. OVERL AP W ITH OTHER LEGISLATION
When two (or more) legislative provisions apply to t he same facts, 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 might conflict, but the confl ict is avoid-
ed through legislative fi at or judicial interpretation.
3) The overlapping provisions do not conflict, but the court concludes
that one of the provisions wa s meant to be exhaustive and therefore
applies to the exclusion of the other.
4) The overlapping provisions conflict and, in order to resolve the
conflict, the court applies a paramountcy rule.
STATUTORY INTERPRETATION304
1) Overlap without Conflict
The courts rarely comment on harmonious overlap among prov isions
because normal ly it is not a problem. The overlapping provisions are
simply applied in accordance with t heir terms. For example, the use of
rented premises for operating a daycare centre might simultaneously
be subject to provisions in the Landlord and Tenants Act, the Occupier’s
Liability Act, the Professional Child Care Act, various municipal by-laws,
and more. Although these provis ions would impose dispa rate and over-
lapping obligations on the operator, this in itsel f would not amount to
con flict. The co urts have r epea tedly held t hat p rovi sions do not c onfli ct
simply because they dea l differently with the same facts. A conflict
arises only i f it would be impossible, contradictor y, or contrary to legis-
lative intent to apply them all together. In the absence of conflict, the
presumption is that t hey all apply.
This presumption is illustrated in the judgment of the Federa l
Court of Appeal in Canada (Attorney Gene ral) v. Michael.1 The court
was asked to review a r uling by the Unemployment Insurance Commis-
sion concerning a claim for benefit under the Unemployment Insurance
Act. The commission found that the claimant had frivolously rejected
two job offers. This meant, under section 14 of the Act, that she lost her
entitlement to benefits for the relevant period and, under section 27(1),
that she was subject to a six-week disquali fication for each refusal. The
claimant argued that these provisions were mutually exclusive and that
the commission erred i n applying both. The court upheld the commis-
sion. It affirmed that where the fact s of a case come withi n two or more
provisions, and the prov isions do not conflict, the pre sumption is that
they all apply. There is nothing problematic, inappropri ate, or even un-
usual in attaching more than one legal consequence to a fact or a set of
facts. While the pres umption may be rebutted, usually by evidence that
one of the overlapping provisions was me ant to be exhaustive, there
was nothing in the scheme or wording of the legislation or its under-
lying policies to rebut the pres umption here.
2) Conflict Avoidance
a) Legislative Fiat
In the complete statute book of a jurisdict ion, whether federal, provin-
cial, or municipal, there is inevitably a signi ficant potential for conflict
between provisions. Par t of the job of a legislative drafter, when draft-
1 (1994), 175 N.R. 325 (Fed. C.A.).
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