Tracing the Evolution and History of a Regulation

• Author: Susan Barker, Erica Anderson
• Pages: 229-245

229



chapter eleven

Tracing the Evolution and History of a

Regulation

As noted in Chapter 10, the rules of interpretation that apply to stat-

utes also apply to regulations:

A statutory provision must be read in its entire context, taking into

consideration not only the ordinary and grammatical sense of the

words, but also the scheme and object of the statute, and the inten-

tion of the legislature. is approach to statutory interpretation must

also be foowed, with necessary adaptations, in interpreting regulations.1

Even though the concept of legislative evolution refers to textual

changes within a statute or regulation, legislative evolution is con-

sidered to be an extrinsic aid to the interpretation of regulations.2 One

example of the use of the evolution of a regulation is the Nova Scotia

case Municipal Enterprises Ltd v Nova Scotia (Attorney General),3an

appeal case in which the “sole issue . . . is one of statutory interpret-

ation”4— specicay the intention of regulations under the Gasoline

and Diesel Oil Tax Act. During the course of the original trial, the trial

judge “traced the evolution of the GDOTA and its Regulations from

1 Glykis v Hydro ebec2004 SCC 60 at para 5 [emphasis added].

2 Ruth Suivan, Suivan on the Construction of Statutes, 6th ed (Markham, ON:

LexisNexis, 2014) at 661 [Suivan, Construction, 6th].

3 Municipal Enterprises Ltd v Nova Scotia (Aorney General), 2003 NSCA 10.

4 Ibid at para 2.

230  Researching Legislative Intent

1926 to 1981 to identify their original purpose and any trends reect-

ing new policies or whether they have remained constant.”5 As part

of their appeal, the appeants argued that the trial judge had given

“undue weight”6 to legislative history (including legislative evolution).

e appeal was dismissed. In her ndings, Glube CJNS explicitly

noted that in order to avoid an absurdity, “it was appropriate for the

trial judge to consider factors such as the debates from the Nova Sco-

tia House of Assembly; [and] the evolution of the act and its regulations.”7

A. LEGISLATIVE EVOLUTION

As with tracing the evolution of a statute, we wi use Suivan’s den-

ition of legislative evolution as the basis for researching the evolution

of a regulation:

Legislative evolution is “the evolution of a legislative provision [con-

sisting] of successive enacted versions from inception to the version

in place when the relevant facts occur.”8

1) Tracing the Evolution of a Regulation

Tracing the evolution of a regulation starts with the current regula-

tion and working backward, making note of any changes of meaning

or wording in a regulation and agging when those changes occurred,

as they can be used as the basis for locating the legislative history of

the regulation.

2) The Source Reference

One important tool to be aware of when tracing legislative evolution

is the source reference. Start by locating the current regulation, either

on the government websites or on CanLII (www.canlii.org). If the

jurisdiction you are researching uses source references, you wi see

5 Ibid at para 18.

6 Ibid at para 70.

7 Ibid at para 77 [emphasis added].

8 Suivan, Construction,6th, above note 2 at 660.