Technical Meaning and Meanings Fixed by Law
| Author | Ruth Sullivan |
| Pages | 73-95 |
73
CHA PTER 5
TECHNICAL MEANING
AND MEANINGS
FIXEDBY LAW
In statutory interpretation the expression “ordinary mean ing” 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 th at 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 otherwi se declared by the legislature, this meaning prevai ls
over the ordinary mea ning to the extent of any inconsistency. Second,
some words or expressions have technical as well as ordinar y 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. PR ESUMP TIONS APPLIC A BLE TO
TECHNICA L ME ANING
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
STATUT ORY INTER PRETATION74
precise and functional way. To other insiders, technical mean ings are
clear and present little inter pretative challenge; they facilitate accurate,
efficient communication. To outsiders, however, such mean ings are ob-
scure and unnatura l.
Because technica l 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. Ex perts may also be relied on to establish whether a term ha s
a technical meaning within a given speci alization.3
It is important to distinguish technical ter ms from technical mean-
ings. Technical terms are words or expre ssions that have a technical
meaning only. In such cases, the pos sibility of ambiguity between tech-
nical and ordinar y meaning cannot arise, and there is no need for a
presumption. A court determines t he meaning of technical ter ms by
receiving relevant exper t 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 me aning. In such cases, a
court must decide which meaning should prevail. In addition to the
usual techniques for resolv ing ambiguity, such as purposive and conse-
quential analysi s, the courts draw on two rule s. 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 meani ng that would be under-
stood by the audience to which the legislation is addressed, given the
matter dealt with. When legi slation is addressed to the public at large,
these presumptions complement one another, but where legislation is
addressed to a speci alized 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 t he appellant was a “derivative” of tetracycline
within the mea ning of the Customs Tariff Act. The ordinary meaning of
and 12.
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 [Pfize r]. 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 .
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