Statutory Interpretation

• Author: Vern Krishna
• Profession: Professor of Common Law, University of Ottawa Barrister at Law
• Pages: 32-47

32

CHAPTER 2

STATUTORY

INTERPRETATION

“The diff‌iculties of so- called interpretation ar ise when the Legislature

has had no meaning at all; when the question which i s raised on the

statute never occurred to it; when what the judges have to do is, not

to determine what the legislature did mean on a point which was

present to its mind, but to guess what it would have intended on a

point not present to its mind, if the point had been present.”1

A. INTRODUCTION

In this chapter, we set out the rules of the road in interpreting tax law.

Tax interpretation is not static; it evolves, particularly in the context of

provisions designed to control tax avoidance, as we shift from literal to

purposive construction.

The primary purpose of statutory interpretation is to unlock legis-

lative intent. In addition to the ordinar y rules, constitutional traditions

also play an important role in the interpretation of tax law. Tax legis-

lation is the product of elected legislatures. The language of the Act

ref‌lects the constitutional will of the people through its elected repre-

sentatives. Thus, interpretation of tax law requires careful attention to

1 John Chipman Gray, Nature and Sources of th e Law: Statutes, 2d ed (New York:

Macmillan, 1921).

Statutory Inte rpretation33

the words of the statute. There is a lesser role for judicial rulem aking in

tax law, than there is, for example, in constitutional law.2

B. THE

INTERPRETATION ACT

The construction of the Act is a question of law. Section 12 of the Inter-

pretation Act states:3

Every enactment is deemed remedial, and shall be given such fair,

large and liberal construction and interpretation as best ensures the

attainment of its object s.

Thus, we must interpret tax law in such a fair and liberal manner

as best ensures the attainment of its purpose as articulated in the stat-

ute. The tension is in interpreting statutory language as expressed by

Parliament according to the context and purpose (often unarticulated)

of provisions.

C. GENERAL PRINCIPLES

The general principle of modern statutory construction is to interpret

statutes in context, in harmony and within the scheme of the legisla-

tion. Dr Driedger, in the second edition of his work, Construction of

Statutes, stated the principle as follows:4

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 w ith the scheme of the Act, the object of

2 See Stewart v Canada, 2002 SCC 46 [Stewart]; Lu dco Enterprises Ltd v Cana da,

2001 SCC 62 [Ludco].

3 Interpretation Act, RSC 1985, c. I-21, as amended. Section 3 re ads:

(1) Every provision of this Act appl ies, unless a contrar y intention appears,

to every enact ment, whether enacted before or afte r the commencement

of this Act.

(2) The provisions of this Act apply to t he interpretation of this Act .

(3) Nothing in this Act exclude s the application to an enactment of a r ule of

construct ion applicable to that enactment and n ot inconsistent with thi s

Act.

4 Elmer A Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983)

at 87. See also Canada v Antosko, [1994] 2 SCR 312 at paras 24–25, 29 & 30 [An-

tosko].