Technical Meaning and Meanings Fixed by Law

• Author: Ruth Sullivan
• Pages: 73-95

73

CHAPTER 5

TECHNICAL MEANING

AND MEANINGS

FIXEDBY LAW

In statutory interpretation the expression “ordinary meaning” is used in

two overlapping but distinguish able sense s. In the presumption in favour

of ordinary meaning, examined in Chapter 4, “ordinary meaning” re-

fers to the meaning that spontaneously comes to the mind of an inter-

preter when he or she reads a legislative text. In thi s chapter, “ordinary

meaning” refers to the popular, non-technical meaning of a word or ex-

pression contained in a legislative text.

Generally speak ing, it is presumed that words should be given their

ordinary, non-technical meani ng subject to two exceptions. First, when

words are def‌ined in an Act or regulation, or when the mean ing of legis-

lation is otherwise declared by the legislature, this meaning prevails

over the ordinary meaning to the extent of any inconsistency. Second,

some words or expressions have technical as well as ordinary mean-

ings, and on occasion it is the technical rather than the ordinary mean-

ing that the law maker intends to use. Some technical meanings are

legal, derived from common law, the Civil Code, or commercial usage.

A.PRESUMPTIONS APPLICABLE TO

TECHNICAL MEANING

A technical meaning is a meaning understood by a group of speakers

who are engaged in a specialized activity. Technical meanings are help-

ful because they permit insiders to refer to aspects of their activity in a

STATUTORY INTER PRETATION74

precise and functional way. To other insiders, technical meanings are

clear and present little interpretative challenge; they facilitate accurate,

eff‌icient communication. To outsiders, however, such meanings are ob-

scure and unnatural.

Because technical meanings are not famili ar to the average language

user, they do not meet the test for judicial notice.1 They must be proven

through the testimony of expert witnesses. In R v Perka,2 for example,

to prove the meaning of “Cannibis sativa L” in the Narcotic Control Act,

both the Crown and the defence relied on the testimony of professional

botanists. Experts may also be relied on to establish whether a term has

a technical meaning within a given specialization.3

It is important to distinguish technical terms from technical mean-

ings. Technical terms are words or expressions that have a technical

meaning only. In such cases, the possibility of ambiguity between tech-

nical and ordinary meaning cannot arise, and there is no need for a

presumption. A court determines the meaning of technical terms by

receiving relevant expert evidence and making a f‌inding of fact.4

A more diff‌icult problem arises when legislation contains words

that have both a technical and an ordinary meaning. In such cases, a

court must decide which meaning should prevail. In addition to the

usual techniques for resolving ambiguity, such as purposive and conse-

quential analysis, the courts draw on two rules. The f‌irst is a presump-

tion in favour of the ordinary, non-technical meaning of words. The

other is a presumption in favour of the meaning that would be under-

stood by the audience to which the legislation is addressed, given the

matter dealt with. When legislation is addressed to the public at large,

these presumptions complement one another, but where legislation is

addressed to a specialized audience, they may be at odds.

The presumption in favour of ordinary, non-technical meaning was

applied by the Supreme Court of Canada in Pf‌izer Co v Deputy Minister of

National Revenue (Customs & Excise).5 The issue in the case was wheth-

er the drug imported by the appellant was a “derivative” of tetracycline

within the meaning of the Customs Tariff Act. The ordinary meaning of

1 For an explanat ion of judicial notice, see R v Find, 2001 SCC 32, and Chapt ers 4

and 12.

2 [1984] 2 SCR 232.

3 See, for example, Cana dian Pacif‌ic Ltd v Canada, [1994] FCJ No 933 (CA).

4 The ordinary or t echnical meaning of a word or ex pression is considered to be

a matter of fact; whet her that is the meaning i ntended by the legislature i s a

matter of law.

5 [1977] 1 SCR 456 [Pf‌izer]. See also Canada (Natio nal Revenue) v Meyers Norris

Penny Limited, 2014 ABCA 176 at para 20; Harmony Consulting Lt d v GA Foss

Transport Ltd, 2012 FCA 226 at para 72 .