Plausible interpretation, Gaps, and Mistakes

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 112-127

CHAP TER 7

PL AUSIBLE

INTERPRETATION,

GAPS, AND MISTAKES

A. THE PLAUSIBLE MEA NING RULE

Under the plausible meaning rule, a court may adopt an interpretation

that departs f rom the ordinary meaning of the legislat ive text, but the

interpretation adopted must be one that the text c an reasonably bear.

The following passage from the judgment of Estey J. in Be rna delli v.

Ontario Housing Corp. is ty pical of the many occ asions on which this

rule is invoked:

When one interpretat ion can be placed upon a stat utory provision

which would bring about a more workable and pr actical result , such

an interpretat ion should be preferred if the words i nvoked by the

Legislature c an reasonably bear it.1

It follows, as Arbour J. explains in Ruby v. Canada (Solicitor General),

that an interpretation that cannot reasonably be borne by the words of

the text must be rejected; there is no di scretion in the court to accept

such an interpretation:

[T]he Solicitor Genera l’s interpretation of s. 51(2)(a) is not one that

the statute can re asonably bear. Sect ion 51(2)(a) mandates that the

hearing … b e heard in camer a.… It is not open to the part ies, even

on consent, to bypass the mandatory in camera requirements of s.

1 [1979] 1 S.C.R. 275 at 284.

112

Plausible Interpr etation, Gaps, and Mistake s 113

51. Nor is open to a judge to conduct a hearing in open court i n dir-

ect contradiction to the req uirements of the statute, regardless of the

proposal put forth by the p arties. Unless the mand atory requirement

is found to be unconstitution al and the section i s “read down” as a

constitutional remedy, it cannot other wise be i nterpreted to byp ass

its mand atory nature.2

The notion of plausible meaning f‌igures other ways in statutory in-

terpretation and in admi nistrative law as well. In Bell ExpressVu Limited

Partnership v. Rex, for example, the Supreme Court of Canada offered

the following def‌inition of ambigu ity: “What, then, in law is an ambigu-

ity? To answer, an ambiguity must be ‘real’. … The words of the provi-

sion must be ‘reasonably capable of more than one meaning.’”3 In cases

involving applications for judicial review, the Supreme Court of Can-

ada has dist inguished among three standards of rev iew. Depending on

a number of factors, a decision of an i nferior tr ibunal must be set aside

by the reviewing cour t if it is (1) merely incorrect, (2) unreasonable, or

(3) patently unreasonable. As explained by Arbour J. in Moreau-Bérubé

v. New Brunswick (Judicial Council), an interpretation that is unrea son-

able or patentl y unrea sonable is one that t he words of t he text cannot

reasonably bear.4

The plausible meaning rule i s invoked by courts as a justif‌ica-

tion for rejecting an interpretation th at may be appropriate in some

respects — it may f‌it t he context or avoid bad consequences or other-

wise appear to have been intended. But it puts too great a str ain on the

words of the text. The court says, in effect, t hat because the leg islature

is a competent language user it would not have chosen these words to

express that me aning; i f that is what the legi slature meant, it would

have said so in di fferent terms or in a different way. In Forget v. Q uebec

(Attorney General), for example, in connection with section 35 of the

Charter of the French Language, Lamer J. wrote:

If the legislator h ad intended that knowledge of French be asse ssed by

only one method of proof … he would have stated t hat intent clea rly.

For example, the statute m ight have imposed … a dut y to measure

knowledge of French by holding a n examin ation …. [B]ut that is not

the case here. Sect ion 35 of the Act provides t hat the Off‌ice [de la lan-

gue françai se] may, but is not required to, hold an exam ination.5

2 [2002] 4 S.C.R. 3 at para. 58.

3 [2002] 2 S.C.R. 559 at para. 29. [Citations omitted. Empha sis added.]

4 See [2002] 1 S.C.R. 249, especially pa ras. 61–62.

5 [1988] 2 S.C.R. 90 at 106–7.