2022 ONCJ 335, 2022 ONCJ 335

IN THE MATTER OF Town of Caledon Zoning Bylaw #2006-50 and the Planning Act, R.S.O. 1990, c. P.13 , and Between The Town of Caledon Prosecutor and Eagle Demolition & Excavation Inc., Gurdev SIDHU, and Jaskaran SIDHU (No. 2) Defendants Ontario Court of Justice Caledon, Ontario Quon J. P. Reasons for the ruling on whether the legislative drafting error or mistake in s. 11.1 of Zoning Bylaw #2006-50 should be corrected by the court or left to the Town Council for The Town of Caledon to fix Issue argued: June 15, 2022 Ruling released: July 20, 2022 Counsel: R. Stracina, prosecutor for the Town of Caledon.

D. Allen, legal representative for the defendants, Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU Cases Considered or Referred To: Air Canada v. Ontario (Minister of Revenue), (ON CA), [1996] O.J. No. 831, 28 O.R. (3d) 97 (Ont. C.A.), MordenA.C.J.O., Goodman and Weiler JJ.A. Aliant Telecom Inc. v. Prince Edward Island (Regulatory and Appeals Commission), [2004] P.E.I.J. No. 6, 2004 PESCAD 1(P.E.I.C.A.). Association of Parents for Fairness in Education, Grand Falls District 50 Branch v. Minority Language School Board No. 50, (NB CA), [1987] N.B.J. No. 544, 40 D.L.R. (4th) 704 (N.B.C.A.).

Botham Holdings Ltd. (Trustee of) v. Braydon Investments Ltd., 2009 BCCA 521 , [2009] B.C.J. No. 2315 (B.C.C.A.). Caledon (Town) v Eagle Demolition & Excavation Inc., [2022] O.J. No 2342, 2022 ONCJ 241 (Ont. C.J.), Quon J.P. Century Services Inc. v. Canada (Attorney General), 2010 SCC 60 , [2010] S.C.J. No. 60 (S.C.C.). Commissioners for Special Purposes of the Income Tax v. Pemsel, 1891 CanLII 21 (FOREP), [1891] A.C. 531 at 549 (H.L.) Fleming v. Luxton, (AB KB), [1968] A.J. No. 45, 63 W.W.R. 522 (Alta. Dist. Ct.). Kehoe v. Artis Builders, [2019] S.J. No. 35 (Sask. C.A.). Ontario (Minister of Transport) v.

Phoenix Assurance Co. of Canada, (ON CA), [1973] O.J. No. 2135, 39 D.L.R. (3d)481 (Ont. C.A.), Schroeder J.A., affd (1975), (SCC), 54 D.L.R. (3d) 768, 5 N.R. 73 (S.C.C.) Morguard Properties Ltd. v. Winnipeg (City), (SCC), [1983] S.C.J. No. 84 (S.C.C.). Morishita v. Richmond (Township), (BC CA), [1990] B.C.J. No. 634, 44 B.C.L.R. (2d) 390 (B.C.C.A.). R. v. Day, [1985] O.J. No. 1798 (Ont. Dist. Ct.), Hurley J. R. v. DeSousa, (SCC), [1992] S.C.J. No. 77 (S.C.C.). R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686 (S.C.C.). Rennie's Car Sales and R. G. Hicks v. Union Acceptance Corp. Ltd. (AB CA), [1955] A.J.

No. 59, 4 D.L.R. 822(Alberta Supreme Court, Appellate Division). Riley v. Columbia Shuswap (Regional District), [2002] B.C.J. No. 1354, 2002 BCCA 374 (B.C.C.A.).

Stock v. Frank Jones (Tipton) Ltd., [1978] 1 All E.R. 948 (H.L.). Strata Plan BCS 1721 v. Watson, [2018] B.C.J. No. 173 (B.C. Supreme Ct.), Pearlman J. Summerside (City of) v. Maritime Electric Co. Ltd., [2011] P.E.I.J. No. 24, 2011 PECA 13 (P.E.I. C.A.). United States of America v. Allard, [1991] S.C.J. No. 30 (S.C.C.). University Hospital Board v. Boros, (SK CA), [1985] S.J. No. 913, 24 D.L.R. (4th) 628 (Sask. C.A.). Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue), [2010] F.C.J. No. 1686, 2010 FCA 294 (F.C.A.), Mainville J.A.

Statutes, Regulations, Bylaws and Rules Cited: Planning Act, R.S.O. 1990, c. P.13, s. 67. Provincial Offences Act, R.S.O. 1990, c. P.33, s. 36 and 36(2). Town of Caledon (Zoning) Bylaw #2006-50, ss. 3.2, 11, 11.1, 11.2, 11.3 and Table 11.1. www.caledon.ca<<https://www.caledon.ca/en/town-services/resources/Documents/business-planning-development/zoning-by-law/March-24-2022/Section-11-ACCESSIBLE.pdf.>> Reference Material Considered or Cited: Drinkwalter, W.D. and Ewart, J.D. Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980). Sullivan, R.

Sullivan on the Construction of Statutes, 7th ed. (Markham, Ont.: LexisNexis, June 2022). merriam-webster.com: Dictionary, online: merriam-webster.com website <<https://www.merriam-webster.com/dictionary/personal>>,definition for “personal”.

REASONS FOR THE RULING ON WHETHER THE LEGISLATIVE DRAFTING ERROR OR MISTAKE IN S. 11.1 SHOULD BE CORRECTED BY THE COURT OR LEFT TO THE TOWN COUNCIL FOR THE TOWN OF CALEDON TO FIX 1.

S. 11.1 OF THE TOWN OF CALEDON ZONING BYLAW #2006-50 CONTAINS A LEGISLATIVE DRAFTING ERROR OR MISTAKE [ 1 ] Now, if you were to be charged with committing a municipal zoning bylaw offence under s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50, and then downloaded that bylaw from the Town of Caledon website on the internet to see what the actual wording of the charge states, you would see the following wording for s. 11.1: 11.1 GENERAL PROHIBITION No personal shall, within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge, use or maintain any building or structure for any use other than as permitted in Table 11.1 of Subsection 11.2 and in accordance with the standards contained in Table 11.2 of Subsection 11.3, the General Provisions contained in

Section 4 and the Parking, Loading & Delivery Standards contained in

Section 5. [ 2 ] From this downloaded version of the Town of Caledon Zoning Bylaw, you would see that you have been charged with contravening a municipal bylaw that states, “’ No personal’ shall, within any Environmental Policy Area Zone, use any land, or erect, alter, enlarge, use or maintain any building or structure for any use other than as permitted in Table 11.1 of Subsection 11.2 …”. But now after reading the wording of the prohibition stated in s. 11.1, you would be likely be scratching your head and wondering what the phrase “ no personal” means in the context of that provision, so you then look at the

definitions

section in s. 3.2 of that downloaded Zoning Bylaw, but there is no definition for the word, “personal”, set out in that

section . The closest word that you find to the word “personal” is the word “Person” which is defined in s. 3.2, as “any human being, association, firm, partnership, incorporated company, corporation, agent or trustee, and the heirs, executor or other legal representatives of a person to whom the context can apply”. However, s. 11.1 does not refer to the noun “person” but to an adjectival word, “personal”.

But if the word “personal” were to be used as a noun in s. 11.1, then as found in the Merriam-Webster online dictionary [1] , it would mean, “ a short newspaper paragraph relating to the activities of a person or a group or to personal matters” or “a short personal communication in a special column of the classified ads

section of a newspaper or periodical ”.

However, you may be pondering that s. 11.1 seems to be about prohibiting uses of land in an Environmental Policy Area Zone in the Town of Caledon unless the use is specifically listed in s. 11.2 of the Zoning Bylaw, but that s. 11.1 as it is worded does not appear to have any connection to a short newspaper paragraph or related to a short communication being used as a classified ad. [ 3 ] However, under s. 3.2 there is also the term, “Personal Service Shop”, defined as “ a premises where health and grooming services are provided and may include a spa, a barber shop, a beauty salon, a dressmaking shop, a tailor, a pet grooming facility, a photographic studio, or similar use .” If s. 11.1 were to be about “Personal Service Shops” then s. 11.1 would be an intelligible and plausible provision.

Ergo, was the intention of Town Council for the Town of Caledon for s. 11.1 to be about Personal Service Shops as the entities that were required to comply with s. 11.1, but due to the drafting error or mistake, the two words, “Service Shop” were mistakenly omitted after the word “personal”? [ 4 ] But to you, s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 in its present form is nonsensical. You must also be wondering if you could be convicted under a municipal bylaw containing wording that makes no sense.

The answer to that question is not black-and-white and will depend on whether the court can legally correct the legislative drafting error or mistake in that provision by effectively rewriting s. 11.1 so that the intention of the municipal or town council who enacted that impugned bylaw can be properly expressed for s. 11.1, if their intention can be actually determined. Furthermore, the court’s jurisdiction to correct such drafting errors or mistakes by essentially redrafting the impugned statutory provision is also legally uncertain and this legal uncertainty will be explained

later in these reasons by a review of caselaw and academic writing on this subject. [ 5 ] Ergo, the question for the court in this proceeding, where the 3 defendants, Eagle Demolition & Excavation Inc., Gurdev SIDHU and Jaskaran SIDHU, have been each charged with contravening s. 11.1 of the Town of Caledon Zoning Bylaw #2006-50 on 4 different dates, is how this court should treat or deal with the legislative drafting error or mistake contained in s. 11.1 of the Zoning Bylaw.

If the trial of the charges against the defendants were to continue with the wording of s. 11.1 as it stands presently, is there even an offence known in law that the prosecution could even prove beyond a reasonable doubt that the defendants had committed? Or is s. 11.1 a defective and badly-worded bylaw that should be sent back to the legal department of the Town of Caledon to properly draft and for the Town Council for the Town of Caledon to amend so that s. 11.1 would be a properly worded bylaw?

Or should this court, if there is the jurisdiction to do so, and for practical purposes, effectively redraft the wording of s. 11.1 so that the intention of the Town Caledon council in enacting s. 11.1, if determinable, will be properly expressed in s. 11.1? [ 6 ] Consequently, is s. 11.1 the result of a legislative drafting error or mistake for which this court would have the legal jurisdiction to correct, but should not correct since this court should not usurp the legislative role of the Town Council for the Town of Caledon and that it should be rightly left for the Town of Caledon’s Council to amend and correct their defective bylaw?

Or is it a simple typographical error made by someone typing out the statutory provision for the Town of Caledon to enact as a bylaw and for which the intention of the Town Council for Caledon can be determined, and in which this court should now correct by effectively redrafting s. 11.1? [ 7 ] Before the issue of the legislative drafting error or mistake in s. 11.1 was raised by this court on June 15, 2022, this court had asked the prosecution for a certified copy of the Town of Caledon Zoning Bylaw #2006-50, in order to see if the drafting error or mistake in s. 11.1 was also clearly visible on the certified or official copy of the Town of Caledon Zoning Bylaw and not just on the version of the Zoning Bylaw that is available online on the Town of Caledon website.

The prosecution replied that there is not a physical certified or official copy of the Zoning Bylaw in the courthouse, but that the Zoning Bylaw #2006-50 which is found on the Town of Caledon website is an official, certified, and registered copy of Zoning Bylaw #2006-50 and is one that can be downloaded from the Town of Caledon website: https://www.caledon.ca/en/town-services/resources/Documents/business-planning-development/zoning-by-law/March- 24-2022/Section-11-ACCESSIBLE.pdf .

Accordingly, the version of the Town of Caledon Zoning Bylaw #2006-50 that is found on the Town of Caledon website will be treated as an official, certified, and registered copy of the Zoning Bylaw. Ergo, the official copy of the Town of Caledon Zoning Bylaw #2006-50 does contain a drafting mistake or error in s. 11.1, which is the

section under which the defendants have been charged with committing an offence on 4 different days. [ 8 ] In respect to how this court should deal with the word “personal” that is used in s. 11.1, the prosecution contends that the word is basically a “scrivener’s error” and that the proper meaning of s. 11.1 as intended by the Town Council for the Town of Caledon can be found by looking at the overall purpose and spirit of the Zoning Bylaw and by looking at other provisions in the Bylaw and to also look at the words used or found in s. 11, which the prosecution contends does expressly refer to a “person” everywhere in the Zoning Bylaw.

Accordingly, the prosecution submits that the court should interpret and read the word “personal” as the word “person” in s. 11.1 to properly articulate the intention of the Town of Caledon Town Council for s. 11.1. [ 9 ] On the other hand, the defendants contend that since s. 11.1 is a provision contained in a municipal bylaw enacted by a municipality and not a provision that is found in a statute or regulation passed by the Parliament of Canada or the Legislature of Ontario, then the intention of the Town of Caledon in respect to s. 11.1 cannot be actually ascertained by looking to or referring to “Hansard” or a written legislative record, as no such written record for the enactment of the Town of Caledon Zoning Bylaw #2006-50 would be publicly available.

In addition, the defendants argue that it would not be fair to them for the court to second guess what the Town Council for the Town of Caledon had intended when they chose and used or included the word “personal” in s. 11.1 or for the court to look at various parts of the Zoning Bylaw to interpret the meaning of the word “personal” in the context of s. 11.1. [ 10 ] In respect to the use or appearance of the word “person” in s. 11 of the Town of Caledon Zoning Bylaw, the word “person” is only expressly used or found once in s. 11 of the Zoning Bylaw and that is found in s. 11.3, where that provision states: 11.3 ZONE STANDARDS No person shall, within any Environmental Policy Area Zone , use any lot or erect, alter, use any building or structure except in accordance with the following zone provisions.

A number(

s) following the zone standard, zone heading or description of the standard, indicates an additional Zone requirement. These additional standards are listed at the end of Table 11.2 .

[ 11 ]

Section 11.1 and s. 11.3 have virtually the same wording in each provision for the first 9 words, except s. 11.1 contained the adjectival word “personal” while s. 11.3 contains the noun “person”. However, the remaining wording after the first 9 words used in both provisions are dissimilar and referred to different subject matters. [ 12 ] In addition, municipal b ylaws are the primary legislative instrument of municipalities in Ontario. 2. HOW SHOULD A COURT DEAL WITH WHAT APPEARS TO BE A LEGISLATIVE DRAFTING ERROR OR MISTAKE IN THE BYLAW UNDER WHICH THE DEFENDANTS HAVE BEEN CHARGED? (

A) The Courts Have “Uncertain Jurisdiction” To Correct Legislative Drafting Errors Or Mistakes [ 13 ] In her most recent edition of the definitive textbook on the construction of statutes that was recently published in June of 2022, Professor Ruth Sullivan in “Sullivan on the Construction of Statutes”, 7th ed. (Markham, Ont.: LexisNexis, June 2022), in the 12 th

Chapter entitled “ Correcting Mistakes, Filling Gaps, Defeating Avoidance ”, opines that there is an “uncertain jurisdiction” for the courts to fix imperfections in legislation by effectively redrafting the impugned statutory provision.

After a review of how Canadian courts have dealt with drafting errors or mistakes in legislation, Professor Sullivan did determine that this uncertainty in the jurisdiction for courts to correct drafting mistakes is the result of some courts being quite prepared to effectively redraft legislation to produce a sensible result while others have taken the opposite view that defects in legislation must be left to the legislature to fix [ emphasis is mine below ]: This

chapter looks at the uncertain jurisdiction of the courts to fix imperfections in legislation by effectively redrafting it . In this respect, it is closely related to the

chapter on plausible meaning, which considers how far the concept of linguistic plausibility can be stretched before it breaks. It is also closely related to the

chapter on consequential analysis, which looks at the range of permissible responses to absurdity. While it is never easy to predict how courts will respond to hard cases, it is especially difficult to make predictions when it comes to tampering with the legislative text. Some courts are quite prepared to do so to produce a sensible result, while others take the view that defects in legislation must be left to the legislature to fix . More specifically, this

chapter considers the circumstances in which suspected mistakes may be corrected, the difference between a drafting mistake and a legislative gap and the reasons why courts decline to fill gaps. It also looks at the doctrine of jurisdiction by necessary implication. It ends with a review of the measures available to courts to defeat avoidance strategies. (

B) There Is A “Presumption Of Perfection” In Respect To Enacted Legislation [ 14 ] Professor Sullivan also began her commentary on how courts should handle or deal with legislative drafting errors or mistakes by stating in

section 12.01(1) of her 7 th edition textbook that there is a “presumption of perfection” in the drafting of legislation, which means that legislation is presumed to be accurate and well-drafted and that the legislature does not make slips of the pen [ emphasis is mine below ]: Presumption of perfection Legislation is presumed to be accurate and well-drafted; it is presumed that the legislature does not make slips of the pen . In Commissioners for Special Purposes of the Income Tax v. Pemsel , Lord Halsbury wrote: ...

I do not think it is competent to any Court to proceed upon the assumption that the legislature has made a mistake . Whatever the real fact may be, I think a Court of Law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes . In theory, this idealization of the legislative drafter’s work can be justified. The greater the effort invested in the preparation of a text, the more appropriate it is for readers to assume that errors have been eliminated and that the text in its final form expresses the author’s intended meaning.

In the case of statutes, knowledge of the seriousness of legislation and of the care that has gone into its preparation

leads courts to discount the “accidents” of expression. What in other texts or in speech would be understood as error, inadvertence orellipsis is in legislation taken to be intended, deliberate and complete. [15] But more importantly, Professor Sullivan has also noted in

section 12.01(1) of her 7th edition textbook that Lord Halsbury’sreluctance in Commissioners for Special Purposes of the Income Tax v. Pemsel, 1891 CanLII 21 (FOREP), [1891] A.C. 531 at 549(H.L.), to allow for error or accident in the drafting of legislation has too been shared by Canadian courts. As an example of this view byCanadian courts, Professor Sullivan specifically referred to the Supreme Court of Canada’s decision in Morguard Properties Ltd. v.Winnipeg (City), (SCC), [1983] S.C.J.

No. 84 (S.C.C.), in which Estey J. emphasized that the Legislature is guided andassisted by a well-staffed and ordinarily very articulate Executive and that a court must be slow to presume oversight or inarticulateintentions due to resources that are available in the preparation and enactment of legislation. In addition, Estey J. explained that theLegislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all theresources available to correct that inadequacy of expression.

Furthermore, Professor Sullivan commented that even though Estey J. wasspeaking about tax legislation in Morguard Properties Ltd. v. Winnipeg (City) and a citizen’s right to have a municipal propertyassessment reviewed, Estey J.’s remarks would also apply to all legislation prepared by government.

Moreover, Professor Sullivanfurther noted that because of the skills and resources invested in the drafting process, “[t]he Court must, in general, assume that theLegislature has said what it meant and meant what it has said” [emphasis is mine below]: Lord Halsbury’s reluctance to allow for error or accident in the drafting of legislation is shared by Canadian courts. In MorguardProperties Ltd. v. Winnipeg (City), Estey J. wrote: ... the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive.

The resources at hand in thepreparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions.... TheLegislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all theresources available to correct that inadequacy of expression. This is more true today than ever before in our history of parliamentary rule.

Although Estey J. was speaking here of tax legislation and a citizen’s right to have a municipal property assessment reviewed, hisremarks apply to all legislation prepared by government. Given the skills and resources invested in the drafting process, “[t]he Courtmust, in general, assume that the Legislature has said what it meant and meant what it has said”. [16] In Morguard Properties Ltd. v.

Winnipeg (City), Estey J. also held that in order to adversely affect a citizen's right, whether as ataxpayer or otherwise, the Legislature must do so expressly and that truncation of such rights may be legislatively unintended or evenaccidental, but the courts must look for express language in the statute before concluding that these rights have been reduced.

Furthermore, Estey J. explained that this principle of construction becomes even more important and more generally operative in moderntimes because the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive [emphasis is mine below]: In more modern terminology the courts require that, in order to adversely affect a citizen's right, whether as a taxpayer or otherwise, theLegislature must do so expressly.

Truncation of such rights may be legislatively unintended or even accidental, but the courts must lookfor express language in the statute before concluding that these rights have been reduced. This principle of construction becomes evenmore important and more generally operative in modern times because the Legislature is guided and assisted by a well-staffed andordinarily very articulate Executive. The resources at hand in the preparation and enactment of legislation are such that a court must beslow to presume oversight or inarticulate intentions when the rights of the citizen are involved.

The Legislature has complete control ofthe process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct thatinadequacy of expression. This is more true today than ever before in our history of parliamentary rule. [17] And, even though Professor Sullivan had concluded in

section 12.01(1) of her 7th edition textbook that Estey J.’s assumptionsabout legislative drafting have been reasonably accurate, at least at the federal level, she also pointed out that presently theseassumptions are no longer accurate since there is under-funding at all levels of government which has increased the pressure on draftersto produce ever more text in ever less time in order to meet the government’s deadlines. And as a consequence of this underfunding andpressure to meet deadlines, Professor Sullivan surmised that errors and oversights in the drafting of legislation would be inevitable.

Professor Sullivan also noted that private members’ bills and amendments drafted by legislative committees are another source ofinconsistency and incoherence in legislation. In addition, Professor Sullivan also found that in bilingual jurisdictions, occasionaldiscrepancies between the French and English versions of legislation would be unavoidable.

And, because such mistakes are bound tooccur in the drafting of legislation, Professor Sullivan propounds that the presumption of perfection should be readily rebutted and that itshould also be a normal part of the judicial function to review legislation and in appropriate cases correct mistakes [emphasis is minebelow]:

In the 1980s, when the Morguard Properties case was decided, Estey J.’s assumptions about legislative drafting were reasonably accurate, at least at the federal level. However, these assumptions are no longer accurate . Under-funding at all levels of government has increased the pressure on drafters to produce ever more text in ever less time . The government’s deadlines must be met, however unrealistic they may be. As a result, errors and oversights are inevitable. Private members’ bills and amendments drafted by legislative committees are another source of inconsistency and incoherence in legislation.

Finally, in bilingual jurisdictions, occasional discrepancies between the French and English versions of legislation are unavoidable. Because mistakes are bound to occur, the presumption of perfection should be readily rebutted. It is a normal part of the judicial function to review legislation and in appropriate cases correct mistakes . [ 18 ] In Summerside (City of) v. Maritime Electric Co. Ltd. , [2011] P.E.I.J. No. 24 , 2011 PECA 13 (P.E.I.

C.A.) , at para. 130 , Jenkins C.J.P.E.I., who was dissenting in part, had recognized that there is a “presumption of perfection” in respect to the drafting of legislation and held that in relying on this presumption as a guide for analyzing the text of the statutory provision in question, there is the assumption that the provision in question is accurate and well-drafted, and that the Legislature did not make a slip of the pen.

However, referring to pp. 172-173 of the textbook, “ Sullivan on the Construction of Statutes, 5 th ed.” , Jenkins C.J.P.E.I. also indicated that this presumption is rebuttable if it should ultimately be revealed that the words chosen by the drafter are meaningless, contradictory, or incoherent; or the provision as drafted leads to a result that cannot have been intended [ emphasis is mine below ]: At this early stage of textual analysis, it remains unclear why the Legislature used a variety of language -- "in the area;" "of the area;" "in the province, or part of the province;" "in all areas of the province" -- in sections 2.1 and 2.2.

Being guided by the presumption of perfection, I proceed on the assumption that the provisions are accurate and well-drafted, and that the Legislature did not make a slip of the pen . This presumption is rebuttable, should it ultimately be revealed that the words chosen by the drafter are meaningless, contradictory, or incoherent; or the provision as drafted leads to a result that cannot have been intended : Sullivan on the Construction of Statutes, at p. 172-173. (

C) Does A Court Have The Legal Jurisdiction To Correct Legislative Drafting Errors Or Mistakes? [ 19 ] Despite the uncertain jurisdiction of courts to correct legislative drafting errors or mistakes, Professor Sullivan, in

section 12.01(2) of her 7 th edition textbook, indicates that courts have on occasion recognized and acknowledged their jurisdiction to correct legislative drafting errors or mistakes when there is reason to believe that the text of legislation does not express the rule that the legislature had intended to enact, especially where the court finds “the words of the text are meaningless, contradictory, or incoherent” or finds “ the provision as drafted states a rule or leads to a result that cannot have been intended”.

Furthermore, Professor Sullivan also surmised that where a court finds that it is impossible to make sense of a legislative text, so as to determine whether or how it applies to the facts in question, then the courts would have no choice but to engage in remedial drafting of that defective provision [ emphasis is mine below ]: Jurisdiction to correct mistakes Most courts acknowledge their jurisdiction to correct drafting mistakes when there is reason to believe that the text of legislation does not express the rule that the legislature intended to enact .

This breakdown of communication is generally signalled in one of the following ways: • the words of the text are meaningless, contradictory, or incoherent , or • the provision as drafted states a rule or leads to a result that cannot have been intended . When it is impossible to make sense of a legislative text so as to determine whether or how it applies to the facts in question, the courts have no choice but to engage in remedial drafting . This can be a fairly straightforward exercise. In Morishita v.

Richmond (Township) , for example, the Court was concerned with a provision in a municipal by-law which directed the Municipal Clerk to “proceed as provided ... in

section 4 of this By-law”. Because s. 4 dealt with the duties of the planning committee and made no mention of the Municipal Clerk, the reference to s. 4 was senseless . However, as Southin J.A. noted, the corresponding provision in the former by-law , which was repealed and replaced when the new by-law came into effect, directed the Municipal Clerk to “proceed as provided in

section 5 .” In both the former and the new by-law, s. 5 set out certain duties to be performed by the Municipal Clerk . In these circumstances, Southin J.A. had no difficulty in concluding that the reference to s. 4 was a mistake which should be corrected by substituting a reference to s. 5 .

A more striking example of remedial drafting by courts is found in Association of Parents for Fairness in Education, Grand Falls District50 Branch v. Minority Language School Board No. 50. In that case, the New Brunswick Court of Appeal was asked to interpretprovisions governing the language of instruction in New Brunswick’s Schools Act.

Section 3.2 provided that a school board organized toteach in one of New Brunswick’s official languages may “provide for persons of the other official language classes or schools in whichthe language of instruction is that other official language”. The Court found that the phrase “persons of the other official language”was impossible to interpret and served no discernible purpose in the legislative scheme. After reviewing the difficulties encountered intrying to make sense of the concept “person of a language”, Angers J.A. wrote: There are rare circumstances where the court may remove or substitute words so that the meaning of

an Act is intelligible and to ensurethat it can be put to practical use.... I believe that such circumstances exist in the case before us. The Court solved the problem by striking the words “persons of the other official language” from the statute. Although this amounted toa dramatic redrafting of the provision, in the view of the Court it was necessary to make sense of the Act. [20] Professor Sullivan also commented, in

section 12.01(5) of her 7th edition textbook, that nearly all judges accept that somestraining of ordinary meaning is acceptable in some circumstances (provided the meaning attributed to the text is sufficiently plausible)and nearly all accept that mistakes may be corrected in some circumstances (if the intended meaning is obvious enough) [emphasis ismine below]: In principle, there are bright-line distinctions between strained

interpretations, implausible

interpretations and corrected mistakes. strainedinterpretation implausibleinterpretation(amendment) correcteddraftingmistakeacceptable not acceptable acceptable In practice, these distinctions are not consistently drawn. Nearly all judges accept that some straining of ordinary meaning is acceptablein some circumstances (provided the meaning attributed to the text is sufficiently plausible) and nearly all accept that mistakes may becorrected in some circumstances (if the intended meaning is obvious enough). However, there is no consensus on where the lines shouldbe drawn. To the extent that the acceptable forms of

interpretation — strained

interpretation and correction of drafting mistakes — arebroadly conceived and applied, the category of implausible

interpretation is narrowed and potentially disappears. Conversely, whenstrained

interpretation and correction of drafting mistakes are narrowly understood, the court has many opportunities to rejectinterpretations on grounds of linguistic implausibility. [21] In addition, in R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, at paras. 26 to 29 and 34 to 38, Lamer C.J., writingfor the majority of the Supreme Court of Canada, had agreed with the general rule that “the judge's task is to interpret the statute, not tocreate it”, and as such, Lamer C.J. emphasised that the

interpretation of the statute does not mean that terms should be added to that law. Lamer C.J. had also agreed with the presumption that legislation is deemed to be well drafted and expresses completely what thelegislator had wanted to say.

In addition, Lamer C.J. also commented that for a court to read words into a statutory provision that werenot there would be tantamount to amending the provision, which is a legislative and not a judicial function [emphasis is mine below]: … the contextual approach allows the courts to depart from the common grammatical meaning of words where this is required by aparticular context, but it does not generally mandate the courts to read words into a statutory provision. It is only when words are"reasonably capable of bearing" a particular meaning that they may be interpreted contextually.

I would agree with Pierre-AndréCôté's observation in his book The

Interpretation of Legislation in Canada (2nd ed. 1991), at p. 231, that: Since the judge's task is to interpret the statute, not to create it, as a general rule,

interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say. . . . The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount toamending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engagein legislative amendment.

Third, in this case we cannot lose sight of the overriding principle governing the

interpretation of penal provisions. In Marcotte v.Deputy Attorney General for Canada, (SCC), [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle asfollows, at p. 115: Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal . . . I would have to find for the appellantin this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed forthe proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affectingthe liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to beenforced. Section 34(2), as a defence, acts as a "subtraction" from the liability which would otherwise flow from the criminal offences contained inthe Criminal Code.

Criminal Code provisions concerning offences and defences both serve to define criminal culpability, and for thisreason they must receive similar interpretive treatment. This principle was eloquently stated by La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), (NB CA), 44 N.B.R. (2d) 201, at p. 210: There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect.

This follows from theconstitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words asinterpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to makeabundantly certain that those words are not susceptible of another

interpretation. For it should not be readily assumed that theLegislature intends an unreasonable result or to perpetrate an injustice or absurdity. This scarcely means that the courts should attempt to reframe statutes to suit their own individual notions of what is just or reasonable. It is a principle of statutory

interpretation that where two

interpretations of a provision which affects the liberty of a subject areavailable, one of which is more favourable to an accused, then the court should adopt this favourable

interpretation. By this samereasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in theinterpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to theaccused. Section 34(2), on its face, is available to the respondent. It was, with respect, an error for the trial judge to narrow theprovision in order to preclude the respondent from relying on it. … I am of the view that the Crown's argument linking absurdity to ambiguity cannot succeed.

I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must beenforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the

Interpretation of Statutes, supra, at p.29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upona broad-ranging interpretive analysis. In Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.), Lord Macmillan criticized the view thatabsurdity alone would justify the rejection of a literal

interpretation of a statutory provision. He emphasized that an "absurdityapproach" is generally unworkable because of the difficulty of developing criteria by which "to judge whether a particular enactment, ifliterally read, is so absurd that Parliament cannot have intended it to be so read . . ." (p. 388). He then proceeded, at p. 388, to outlinewhat I believe to be the correct approach to statutory

interpretation where absurdity is alleged: . . . if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and goodsense while the other would lead to extravagant results, a court of law will incline to adopt the former and to reject the latter, evenalthough the latter may correspond more closely with the literal reading of the words employed. Thus, only where a statutory provision is ambiguous, and therefore reasonably open to two

interpretations, will the absurd resultsflowing from one of the available

interpretations justify rejecting it in favour of the other. Absurdity is a factor to consider in the

interpretation of ambiguous statutory provisions, but there is no distinct "absurdity approach". However, assuming for the moment that absurdity by itself is sufficient to create ambiguity, thus justifying the application of thecontextual analysis proposed by the Crown, I would still prefer a literal

interpretation of s. 34(2). As stated above, the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved in amanner most favourable to accused persons. Moreover, in choosing between two possible

interpretations, a compelling considerationmust be to give effect to the

interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte, supra, whenfreedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115: If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, byimplication. [22] Sometimes a court is faced with a drafting anomaly or statutory lacuna or gap in the legislation, so in order to avoid having tocorrect or repair the defective statutory provision by effectively rewriting the statutory provision, a court may resolve the apparentconflict through

interpretation in a manner that does not produce an anomalous outcome. An example of the situation where a draftingmistake had apparently caused the words of a statutory provision to be contradictory or in conflict with another statutory provision andwhich was resolved by the court through

interpretation is found in the case of Century Services Inc. v. Canada (Attorney General), 2010SCC 60 , [2010] S.C.J. No. 60 (S.C.C.). In that case, at paras. 10 to 11 and 50, Deschamps J. for the Supreme Court of Canadaheld that Parliament may have inadvertently succumbed to a drafting anomaly with the enactment of the Companies' CreditorsArrangement Act and the Excise Tax Act, which had created a facial conflict and a statutory lacuna in the Excise Tax Act. However,Deschamps J. held that as is often the case, the apparent conflict can be resolved through

interpretation in a manner that does not producean anomalous outcome [emphasis is mine below]: The first issue concerns Crown priorities in the context of insolvency.

As will be seen, the ETA provides for a deemed trust in favour ofthe Crown in respect of GST owed by a debtor "[d]espite ... any other enactment of Canada (except the Bankruptcy and Insolvency Act)"(s. 222(3)), while the CCAA stated at the relevant time that "notwithstanding any provision in federal or provincial legislation that hasthe effect of deeming property to be held in trust for Her Majesty, property of a debtor company shall not be [so] regarded" (s. 18.3(1)).It is difficult to imagine two statutory provisions more apparently in conflict.

However, as is often the case, the apparent conflict can beresolved through

interpretation. In order to properly interpret the provisions, it is necessary to examine the history of the CCAA, its function amidst the body ofinsolvency legislation enacted by Parliament, and the principles that have been recognized in the jurisprudence. It will be seen thatCrown priorities in the insolvency context have been significantly pared down. The resolution of the second issue is also rooted in thecontext of the CCAA, but its purpose and the manner in which it has been interpreted in the case law are also key.

After examining thefirst two issues in this case, I will address Tysoe J.A.'s conclusion that an express trust in favour of the Crown was created by the court'sorder of April 29, 2008. … It seems more likely that by adopting the same language for creating GST deemed trusts in the ETA as it did for deemed trusts for sourcedeductions, and by overlooking the inclusion of an exception for the CCAA alongside the BIA in s. 222(3) of the ETA, Parliament mayhave inadvertently succumbed to a drafting anomaly.

Because of a statutory lacuna in the ETA, the GST deemed trust could be seen asremaining effective in the CCAA, while ceasing to have any effect under the BIA, thus creating an apparent conflict with the wording ofthe CCAA. However, it should be seen for what it is: a facial conflict only, capable of resolution by looking at the broader approachtaken to Crown priorities and by giving precedence to the statutory language of s. 18.3 of the CCAA in a manner that does not producean anomalous outcome. [23] Furthermore, Fish J. in Century Services Inc. v.

Canada (Attorney General), at para. 95, also commented that a drafting anomalyor statutory lacuna in legislation may be properly subject to judicial correction or repair [emphasis is mine below]: Parliament has in recent years given detailed consideration to the Canadian insolvency scheme. It has declined to amend the provisionsat issue in this case. Ours is not to wonder why, but rather to treat Parliament's preservation of the relevant provisions as a deliberate

exercise of the legislative discretion that is Parliament's alone. With respect, I reject any suggestion that we should instead characterizethe apparent conflict between s. 18.3(1) (now s. 37(1)) of the CCAA and s. 222 of the ETA as a drafting anomaly or statutory lacunaproperly subject to judicial correction or repair. [24] Moreover, in Ontario (Minister of Transport) v. Phoenix Assurance Co. of Canada, (ON CA), [1973] O.J. No.2135, 39 D.L.R. (3d) 481 at 486 (Ont.

C.A.), affd (1975), (SCC), 54 D.L.R. (3d) 768, (S.C.C.), which involved astatutory provision that had been missing words that would have made the provision sensical if they had been included, the Court ofAppeal for Ontario decided to correct the legislative drafting mistake by reading the missing words into the provision in order to fulfillthe Legislature’s intention. At para. 6 to 9 of Ontario (Minister of Transport) v.

Phoenix Assurance Co. of Canada, Schroeder J.A. forthe Court of Appeal emphasized that the Court must, in general, assume that the Legislature has said what it meant and meant what it hassaid, but if the intention of the Legislature is however deemed to be defective or not plainly evident in the statutory provision then theCourt on ethical grounds would not be warranted in attempting to correct it on such grounds, for to do so would be to arrogate to itselflegislative powers.

In addition, Schroeder J.A. held that in applying the provisions of enacted law, the duty of the Court is to discoverand to act upon the true intention of the Legislature, and that in ordinary cases the Courts must be content to accept the letter of the lawas the exclusive and conclusive evidence of the true intention of the legislators.

But then, in respect to the defective statutory provisionthat had been at issue before the Court of Appeal and which had omitted some wording, Schroeder J.A. held that despite the defect in thewording of the legislation the intention of the Legislature is nonetheless plainly evident so that the defective statutory provision may andshould be made logically perfect by the court (by reading into the statutory provision those missing words), in order to give effect to thelegislative intention [emphasis is mine below]: In applying the provisions of enacted law the duty of the Court is to discover and to act upon the true intention of the Legislature.

In allordinary cases the Courts must be content to accept the letter of the law as the exclusive and conclusive evidence of the true intention ofthe legislators. The Court must, in general, assume that the Legislature has said what it meant and meant what it has said. To thisgeneral principle there are exceptions which must, however, be sparingly applied since certainty and uniformity of the law should not besacrificed by loose and arbitrary construction, while on the other hand care must be exercised to ensure that the true intent of the law-givers is not sacrificed to the tyranny of language.

It is contended by counsel for the respondent that in the legislation under review the text is neither ambiguous nor inconsistent; that it islogically complete and workable without the inclusion of

an act by an insurer whereby insurance protection is diverted from one vehicle,in this case a 1955 Chevrolet, to another vehicle, here the 1957 Studebaker. It is incontrovertible that when the endorsement effectingthe change was delivered by the insurer to the insured and accepted by the latter, the insurance coverage quoad the 1955 Chevrolet wasterminated in as complete a sense as if notice of cancellation had been given and received. Thus while there is no ambiguity orinconsistency in the text, nevertheless it may well be said that there is a gap by reason of which it fails to express a logically completeidea.

The legislation makes provision for one case but it is silent as to the other so far as the actual language is concerned. There is agenuine and perfect intention lying behind the text of the enactment in question.

In substance it is this: If the insurer does anything byreason of which a motor vehicle liability policy, for which a certificate has been issued, ceases to exist with respect to the designatedvehicle, the insurer shall notify the Registrar of that fact, whether it can be denominated a cancellation or expiry or be expressed bysome term having substantially the same meaning, at least 10 days before the cessation of the insurance coverage, otherwise the policyremains in full force and effect. In my respectful opinion, the letter of this enactment may be said to be logically defective.

Manifestly there is a genuine and perfectintention lying behind this defective language, as I have endeavoured to point out. Can it be doubted that the Legislature would haveexpressed this intention had the omission been called to its attention? It is plain to my mind that this is a case in which the true and perfect intention of the legislative body has received imperfect expression.If the intention of the Legislature is deemed to be defective on ethical grounds the Court would not be warranted in attempting to correctit on such grounds, for to do so would be to arrogate to itself legislative powers.

But here what may be called the dormant or latentintention of the Legislature plainly appears, and the logically defective letter of the enacted law may and should be made logicallyperfect so as to give effect to the legislative intention which is clearly evident despite the imperfection or incompleteness of the languagein which the enactment is couched. [25] In addition, in Kehoe v. Artis Builders, [2019] S.J.

No. 35, at para. 24, the Saskatchewan Court of Appeal confirmed that courtshave a very limited authority to correct drafting mistakes where it is clear that the statutory language does not reflect legislative intention[emphasis is mine below]: Courts have a very limited authority to correct drafting mistakes where it is clear that the statutory language does not reflect legislative

intention. Justice Lamer (as he then was) put it this way in R v Paul, (SCC), [1982] 1 SCR 621 at 662: Courts have always been reluctant to giving statutes exceptional construction. This is well illustrated in the reported cases on the subject.But this reluctance did not stop courts from departing from the ordinary rules of construction if through their application the law were tobecome what Dickens' Mr. Bumble said it sometimes could be, "a ass, a idiot" (Dickens, Oliver Twist). [26] Furthermore, in Morishita v. Richmond (Township), (BC CA), [1990] B.C.J.

No. 634, 44 B.C.L.R. (2d) 390,which had involved a statutory provision that had made no sense when it had referred to “s. 4” in that provision, the British ColumbiaCourt of Appeal in that case had decided to correct the legislative drafting mistake instead of leaving it to the Township of Richmond tofix the defective provision, by effectively rewriting the statutory provision by substituting the term “s. 5” for the term “s. 4”, so that itmade sense.

In deciding to engage in the remedial drafting of that statutory provision, Southin J.A., for the British Columbia Court ofAppeal, had reviewed the previous version of that statutory provision which had been repealed and concluded that the current statutoryprovision did not make any sense because of the drafting mistake contained in it and that the incorrect reference to “s. 4”, which shouldhave been in actuality a reference to “s. 5” that had been the term that had been contained in the repealed version of the statutoryprovision.

Southin J.A. found that by substituting the term “s. 5” for the term “s. 4” it would then make the current statutory provisionsensical, as it had been for the repealed version of that statutory provision [emphasis is mine below]: The difficulty arising on s. 8 is its reference to s. 4. The simple fact is, the reference to s. 4 makes no sense at all. Because it made no sense, I asked counsel for the municipality if he could provide a copy of bylaw no. 3797 which was the antecedentprocedural bylaw and which was repealed on the 13th April, 1987, when the present bylaw came into effect. He did supply it and the

section in pari materia said this: 8. If the Council refers the proposed Development Permit back to the Planning Committee or Director of Planning pursuant tosection 6 of this By-law, without specifying a time and a place at which the Planning Committee or Director of Planning shall report backto a subsequent Council meeting, the Planning Committee shall, in reporting on the referral, proceed as provided, mutatis mutandis, insection 4 of this By-law, and, the Municipal Clerk shall, upon receipt of the Planning Committee's or Director of Planning's report on thereferral, proceed as provided, mutatis mutandis, in

section 5 of this By-law.

Section 5 of the bylaw 3797 was essentially the same as s. 5 of the present bylaw and s. 4 dealt with the duties of the Planning Committeeand the Director of Planning. I think the only rational conclusion is that the reference to s. 4 in the present s. 8 is a mistake. The

section intended to be referred to is s.5. (

i) Jurisdiction to correct drafting errors or mistakes when the words of the text are meaningless, contradictory, or incoherent [27] In Botham Holdings Ltd. (Trustee of) v. Braydon Investments Ltd., 2009 BCCA 521 , [2009] B.C.J.

No. 2315, at paras.70 to 73, the British Columbia Court of Appeal had corrected the drafting mistake in the statutory provision by striking out the words "bycollusion, guile, malice or fraud" from the provision in order that the Act would make sense [emphasis is mine below]: However, for many years, and certainly since the repeal of the penal provisions in 1987, the purpose and scheme of the B.C. FraudulentConveyance Act has been to provide a civil remedy to creditors.

Its purpose is to protect creditors where property dispositions by debtors"... were effected for the purpose of defeating the legitimate claims of creditors" per Sykes (supra). As a result, the words "by collusion,

guile, malice or fraud" no longer perform a meaningful function in the text. Thus, as stated in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at pp. 178-179, in circumstances where: ... courts encounter words in a legislative text for which no satisfactory

interpretation can be offered ... courts may strike out theoffending language if the text makes sense without it. ... In effect, the court must conclude that the words to be struck perform nomeaningful function in the text, contrary to the presumption against tautology; their presence is simply a mistake. The Act not only makes sense after removal of these words, but accords with the modern purpose and scheme of the Act. Therefore, thewords "by collusion, guile, malice or fraud" should be struck.

The only intent now necessary to avoid a transaction under the modern version of the Act is the intent to "put one's assets out of thereach of one's creditors" (per RBC v. Clarke). No further dishonest or morally blameworthy intent is required. [28] In addition, in Rennie's Car Sales and R. G. Hicks v. Union Acceptance Corp. Ltd., (AB CA), [1955] A.J.

No.59, 4 D.L.R. 822, the Alberta Court of Appeal, at para. 3, had corrected the statutory provision which had contained typographical errorsby interchanging the words "by" and "of" which had been transposed in the provision, so that the provision would then make sense[emphasis is mine below]: It is agreed by all that the

section as printed in the 1952 Statutes contains typographical errors, the words "by" and "of" beingtransposed. With these words interchanged the

section reads: ". . . . a copy of the mortgage and of all affidavits and documentsaccompanying or relating to the mortgage proved to be a true copy by the affidavit of some person who has compared the same with theoriginal." (ii) Jurisdiction to correct drafting errors or mistakes when the provision as drafted states a rule or leads to a result that cannothave been intended [29] In Stock v.

Frank Jones (Tipton) Ltd., [1978] 1 All E.R. 948 (H.L.), Lord Scarman held that if the words used by Parliament areplain, then there would be no room for the 'anomalies' test, unless the consequences are so absurd that, without going outside the statute,one can see that Parliament must have made a drafting mistake. And, Lord Scarman then said that if words 'have been inadvertentlyused', it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated.

Furthermore, LordScarman explained that if a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice ofwords, for example, used 'and' when 'or' was clearly intended, then the courts can, and must, eliminate the error by

interpretation. However, Lord Scarman, also concluded that mere 'manifest absurdity' is not enough and that it must be an error of commission oromission, which in its context defeats the intention of the Act [emphasis is mine below]: My Lords, I also have had the advantage of reading in draft the speech of my noble and learned friend, Viscount Dilhorne. I agree withit. The words used by Parliament admit of no ambiguity, and, for the reasons given by him, I would dismiss this appeal. I wish, however, to add a few words of my own on the 'anomalies' argument.

Counsel for the appellants sought to give the words ameaning other than their plain meaning by drawing attention to what he called the 'anomalies' which would result from giving effect tothe words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory

interpretation unless it canbe demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy theremedy established by Parliament to deal with the mischief which the Act is designed to combat. It is not enough that the words, though clear, lead to a 'manifest absurdity': per Lord Esher MR in R v City of London CourtJudge ([1892] 1 QB 273). Lord Atkinson put the point starkly in Vacher & Sons Ltd v London Society of Compositors ([1913] AC107, [1911–13] All ER Rep 241): 'If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it

has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievousresults.' The reason for the rule was given by Lord Tenterden CJ in Brandling v Barrington ((1827) 6 B & C 467 at 475) in a passage in which hewas considering the so-called 'equity of a statute'; he commented— '… that is so much safer and better to rely on and abide by the plain words, although the Legislature might possibly have provided forother cases had their attention been directed to them.' As Lord Moulton said in Vacher's case ([1913] AC 107, [1911–13] All ER Rep 241): 'The argument ab inconvenienti is one which requires to be used with great caution.

There is a danger that it may degrade into merejudicial criticism of the propriety of the acts of the Legislature.' If the words used by Parliament are plain, there is no room for the 'anomalies' test, unless the consequences are so absurd that, withoutgoing outside the statute, one can see that Parliament must have made a drafting mistake. If words 'have been inadvertently used', it islegitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated: per MacKinnon LJ in SutherlandPublishing Co Ltd v Caxton Publishing Co Ltd (No 2) ([1937] 4 All ER 405, [1938] Ch 174).

This is an acceptable exception to thegeneral rule that plain language excludes a consideration of 'anomalies', ie mischievous or absurd consequences. If a study of the statuteas a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, e g used 'and' when 'or' was clearlyintended, the courts can, and must, eliminate the error by

interpretation. But mere 'manifest absurdity' is not enough: it must be an error(of commission or omission) which in its context defeats the intention of the Act. [1978] 1 All ER 948 at 956 Nothing of the sort has been demonstrated in this case. One may doubt whether the challenged para 8 of Sch 1 to the 1974 Act hascovered all possible consequences. I should be surprised if it has.

But undeniably its plain terms are wholly consistent with the Act'sintention to prevent victimisation of workers on strike; and it matters not that this purpose could have been fulfilled in other ways andwith different consequences. [30] Also, in Air Canada v. Ontario (Minister of Revenue), (ON CA), [1996] O.J. No. 831, 28 O.R. (3d) 97 (Ont.C.A.), at paras. 47 to 48, Morden A.C.J.O. held that the situation before the Court of Appeal had been one of those relatively rare caseswhere the court may properly "correct" the drafting error and read s. 4(3)(

b) as referring to the whole of s. 2. In deciding to correct thedrafting error in the legislation, Morden A.C.J.O. found there had been a clear drafting error in the statutory provision and that what hadbeen clearly intended in s. 4(3)(

b) was to refer to the whole of s. 2 -- so that it would include the tax relating to aviation fuel which isdealt with in s. 2(2). To arrive at this conclusion Morden A.C.J.O. reviewed the legislation before the 1989 amendment (Gasoline TaxAct, R.S.O. 1980, c. 186, s. 4(1)) and that after it (S.O. 1991, c. 13, vol. 2, s. 3, re-enacting s. 4(3)(b)), which made the Legislature’sintention clear.

Morden A.C.J.O. also relied on the explanatory note in respect to s. 4 set out in Bill 24, which became S.O. 1989, c. 45,that had stated that the amendment sets out the collection and remittance obligations of importers and requires importers who are notcollectors to account for the tax they are obliged to collect or to pay at the point of entry into Ontario to officials authorized by theMinister [emphasis is mine below]: The airlines have submitted that it is not open to this court to come to a like conclusion on the basis of the legislation in this case.

Theysubmit that it is difficult to imply a time for payment of the tax on aviation fuel when the statute expressly deals with the time forpayment of tax on gasoline by virtue of ss. 4(3)(

b) and 2(1). In my view, it is clear that there was a drafting error in s. 4(3)(

b) in thereference to s-s. 2(1) only. What clearly was intended in s. 4(3)(

b) was to refer to the whole of s. 2 -- so that it would include the taxrelating to aviation fuel which is dealt with in s. 2(2). The legislation before the 1989 amendment (Gasoline Tax Act, R.S.O. 1980, c. 186,s. 4(1)) and that after it (S.O. 1991, c. 13, vol. 2, s. 3, re-enacting s. 4(3)(b)) make this clear.

Further, the explanatory note in Bill 24,which became S.O. 1989, c. 45, to s. 4 states that: This amendment sets out the collection and remittance obligations of importers and requires importers who are not collectors to accountfor the tax they are obliged to collect or to pay at the point of entry into Ontario to officials authorized by the Minister. This confirms the obvious fact that there was no intention to exclude the payment of tax on aviation fuel.

I think that this is one of those relatively rare cases where the court may properly "correct" the drafting error and read s. 4(3)(

b) as referring to the whole of s. 2. See Driedger on the Construction of Statutes, 3rd ed. (Markham: Butterworths, 1994), by Ruth Sullivan at p. 106 et seq. In doing this s. 2(2) is covered and it is clear that the time for payment is the time of entry of the aviation fuel into Ontario. This would be consistent with the approach of Thurlow C.J. in dissent in British Columbia Railway Co., with which I respectfully agree, and with Vanguard. (iii) Courts have also refused to correct a legislative drafting error or mistake in a statutory provision and have left it for the legislators to fix [ 31 ] In

section 12.01(4) of her 7 th edition textbook, Professor Sullivan discusses and provided examples of statutory provisions that contained legislative drafting errors or mistakes where the courts had refused to correct the defective provision. These cases support the notion about the “uncertainty” of a court’s jurisdiction to correct legislative drafting errors or mistakes contained in statutory provisions.

In addition, Professor Sullivan observed that i n cases where it is not entirely clear that the text is erroneous or where the true intent of the legislature cannot be established with confidence, the courts have generally declined to exercise their jurisdiction to correct drafting errors [ emphasis is mine below ]: Courts sometimes refuse to correct apparent drafting errors, for a variety of reasons. In Riley v.

Columbia Shuswap (Regional District) ,25 the British Columbia Court of Appeal refused to do so, even though the provision as drafted made no sense and the legislature’s intention was clear, because it doubted its jurisdiction to do so. Levine J.A. wrote: The question is whether the court may substitute the clearly intended words for the word used in error .

None of the authorities cited support what would amount to, in effect, rewriting s. 3 to make it meaningful....26 While it is apparent that the definition of “participating area” should have been used instead of “participant”, in my view it is not the role of the court to correct obvious drafting errors, but only to interpret what has been written . 27 In Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue) ,28 the Federal Court of Appeal made somewhat similar remarks.

Speaking for the Court, Mainville J.A. wrote: The appellants are basically asking this Court to redraft the legislation through judicial fiat in order to meet the objectives which the appellants believe Parliament had when it adopted Bill C-259 . I am of the view that it is not the role of the judiciary to carry out a substantial redraft of the legislation, nor to give the language of the substantive provisions of the legislation a meaning which it cannot bear ....

It is the responsibility of Parliament to correct any substantive errors in the legislation it adopts if it deems proper to do so . 29 However, Mainville J.A. also noted and approved the reasoning of the trial judge, which acknowledged a judicial jurisdiction to correct drafting errors but concluded that this was not an appropriate case for a judicial fix . Mainville J.A. wrote: ...

Though Beaudry J. agreed with the appellants “that the source of the error has been demonstrated to the Court and that there was some absurdity which flows from the application of the Act as written” ..., he was not convinced that the technical drafting of Bill C-259 was a simple clerical error since “the Act as drafted is not meaningless, contradictory or incoherent on its face ” ..., nor could he “conclude with confidence that had Bill C-259 been properly understood and presented in its final stages, that it would indeed have been adopted to achieve the effect suggested by the [appellants]”....30 In cases where it is not entirely clear that the text is erroneous or where the true intent of the legislature cannot be established with confidence, the courts generally decline to exercise their jurisdiction to correct drafting errors . [ 32 ] In Riley v.

Columbia Shuswap (Regional District) , [2002] B.C.J. No. 1354 , 2002 BCCA 374 , the British Columbia Court of Appeal had to decide the question of whether the court could substitute the clearly intended words for the word used in error in a

provision in a municipal bylaw. At paras. 27 to 30 in Riley v. Columbia Shuswap (Regional District) , the British Columbia Court of Appeal found that none of the authorities cited had supported what would amount to, in effect, rewriting the statutory provision in question to make it meaningful. Furthermore, the British Columbia Court of Appeal had noted that even though it is apparent that the definition of "participating area" should have been used instead of "participant", they did not view it should be the court’s role to correct obvious drafting errors, but only to interpret what has been written [ emphasis is mine below ]:

Section 3 of Bylaw No. 629 provides: "The participants in the named service are portions of Electoral Areas 'B', 'E', and 'F'". The chambers judge found that both the definition of "participant" in the Local Government Act and the dictionary definition made no sense in the context of the bylaw. I agree with the appellant that it is clear from the context that the District intended to use the definition of "participating area" and not "participant" from the Act, and that the dictionary meaning used by the chambers judge provides no meaning in the context and does not assist in the

interpretation of the sectio n. Applying the contextual approach from Perry, the "mischief", or in this context, the purpose of the bylaws is to define the geographical areas in which the building inspection service is provided . The bylaws have nothing to do with the persons or people who will be involved . It is an error to "search for the lexicological possibilities inherent in the word" "participant", as it cannot carry the intended meaning . The question is whether the court may substitute the clearly intended words for the word used in error .

None of the authorities cited support what would amount to, in effect, rewriting s. 3 to make it meaningful. While it is apparent that the definition of "participating area" should have been used instead of "participant", in my view it is not the role of the court to correct obvious drafting errors, but only to interpret what has been written. [ 33 ] Furthermore, in Zale Canada Diamond Sourcing Inc. v. Canada (National Revenue) , [2010] F.C.J. No. 1686 , 2010 FCA 294 , at paras. 10 to 12 , Mainville J.A., for the Federal Court of Appeal, held that the inherent contradiction between the title and the

preamble of Bill C-259 and the technical drafting of the substantive provisions enacted pursuant to that Bill is not a mere clerical error.

In respect to whether the court should redraft the legislation through judicial fiat in order to meet the objectives which the appellants believe Parliament had when it adopted Bill C-259 , Mainville J.A. decided not to redraft the statutory provision to correct the contradiction to meet Parliament’s objectives and reasoned it is not the role of the judiciary to carry out a substantial redraft of the legislation, nor to give the language of the substantive provisions of the legislation a meaning which it cannot bear.

Moreover, Mainville J.A. held that it is the responsibility of Parliament to correct any substantive errors in the legislation it adopts if it deems proper to do so [ emphasis is mine below ]: While I recognize that there is an inherent contradiction between the title and the

preamble of Bill C-259 and the technical drafting of the substantive provisions enacted pursuant to that Bill , I agree with Beaudry J. that this is not a mere clerical error . As drafted, Bill C- 259 has a meaning which may not be the one stated in its

preamble, but which nevertheless is coherent. The appellants are basically asking this Court to redraft the legislation through judicial fiat in order to meet the objectives which the appellants believe Parliament had when it adopted Bill C-259 . I am of the view that it is not the role of the judiciary to carry out a substantial redraft of the legislation, nor to give the language of the substantive provisions of the legislation a meaning which it cannot bear (see by analogy Exida.com Limited Liability Company v. The Queen, 2010 FCA 159 , 2010 D.T.C. 5101 at paras. 28 to 32 , and Stone v.

Woodstock (Town), 2006 NBCA 71 at para. 21 ). It is the responsibility of Parliament to correct any substantive errors in the legislation it adopts if it deems proper to do so . In this case, I am of the view that any perceived contradictions between the title and

preamble of Bill C-259 and its substantive provisions were addressed by Parliament in the Budget Implementation Act, 2006 which repealed the excise tax on jewellery effective as of May 2, 2006. Had Parliament intended to extend the repeal of this tax to November 25, 2005, the date of the coming into force of Bill C-259, it could have done so, but chose not to. The intent of Parliament is abundantly clear: the excise tax on jewellery is fully repealed as of May 2, 2006. Notwithstanding the appellants' assertions to the contrary,

section 45 of the

Interpretation Act, R.S.C. 1985, c. I-21 is not a bar to reaching such a conclusion: Silicon Graphics Ltd. v. Canada, 2002 FCA 260 , [2003] 1 F.C. 447 at paras. 42-43 .

[34] Also, in University Hospital Board v. Boros, (SK CA), [1985] S.J. No. 913, 24 D.L.R. (4th) 628, at paras. 7 to10 and 12 to 13, the Saskatchewan Court of Appeal had decided not correct the apparent drafting error contained in the statutoryprovision that set out a limitation period for bringing an action against a hospital, in order to fulfill the intention of the legislators. In thatcase, the plaintiff Boros had been hired by the University Hospital Board as an architect on January 1, 1978 and was dismissed withoutcause effective January 8, 1983.

Boros then commenced an action for damages against the University Hospital Board on February 10th,1984, claiming she had been given insufficient notice of her dismissal. However, the University Hospital Board contended that Boros’action had run out of time by reason of

section 15 of The Hospital Standards Act which had set a limitation period of 3 months to bringan action against the University Hospital Board from the date on which the damages had been sustained, unless within one year fromsuch date Boros had made an application for leave to a judge of the Court of Queen's Bench to allow the claim to be made after the 3-months limitation period had expired. Boros’ claim had actually been brought after the one year period had expired to seek leave from ajudge of the Court of Queen's Bench to commence an action.

Although the Saskatchewan Court of Appeal had reasoned that s. 15 asdrawn may not represent the real intention of the legislature that s. 15 would apply to all manner of actions for the recovery of damagesagainst a hospital, they were not prepared to correct the apparent drafting error contained in s. 15, and instead held that they must takethe statute as they find it and give the words in s. 15 their ordinary meaning [emphasis is mine below]: While it is difficult to answer that question which rather suggests the legislature did not intend s. 15 to apply to all manner of actions forthe recovery of damages care must be taken not to press this line of reasoning too far.

The issue after all is not the reasonableness of theprovision. The issue is what did the legislature intend, given the language it used? Lord Reid in Westminister Bank Ltd. v. Zang, [1965] A.C. 182 at p. 222 observed that ... no principle of

interpretation of statutes is more firmly settled than the rule that the court must deduce the intention of Parliament fromthe words used in the Act. If those words are in any way ambiguous - if they are reasonably capable of more than one meaning - or if theprovision in question is contradicted by or is incompatible with any other provision in the Act then the Court may depart from the naturalmeaning of the words in question. But beyond that we cannot go. And in Victoria (City) v.

Bishop of Vancouver Island [1921] A.C. 384, Lord Atkinson said: In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there is something in thecontext, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show thatthey were used in a special sense different from their ordinary grammatical sense. I cannot fairly say there is anything in the circumstances of this case justifying a principled departure from the ordinary meaning of thewords of the

section in issue. I may say I would prefer it were otherwise because I do not regard the result as altogether reasonable. Isuspect, just as did Mr. Justice MacLeod in Swan, that the

section as drawn may not represent the real intention of the legislature,although I do note that it would have been easy enough for the draftsman, had he wanted to do so, to have narrowed its scope.

Forexample, if, after the words of the section, "no action shall be brought for the recovery of damages", there had been added the words"for personal injury", even then their scope would have been considerably reduced. … Dreidger: Construction of Statutes (2nd ed. p. 57) notes that: ... where the meaning of a statute is in issue one must bear in mind that the court always begins with rival constructions put forward byopposing counsel, for otherwise there would be no lawsuit.

The judge is at the outset, even before he has construed the statute, likely toweigh the consequences of one construction against those of the other, and if one strikes as being absurd, unjust, or unreasonableaccording to his values, he will try to arrive at a construction that will avoid those consequences. His proper function at that stage is notthat of moulding the statute to fit his feelings. His initial reaction ought only to serve as a warning to read the statute closely and carefully...

Only where there are two reasonable constructions and the issues cannot be resolved objectively by reference to the intention andobject of the statute as ascertained from a reading of it in its total concept is it proper to make a choice on the basis of personal conceptsof reasonableness. [emphasis added] I agree with those comments, and observe that Burton J. in Warburton v. Loveland (1832) 2 Dow & CI 490; 6 E.R. 806 said much thesame thing:

I admit that the generality of words may properly be restrained within the limits of the declared or implied policy of the statute, the more especially if a construction, to the full extent of its phrase, would lead to any repugnance or inconsistency in its provisions.

That policy is, however, I conceive, only to be looked for in the statute itself, and not to be either enlarged or contracted, upon merely speculative grounds - a mode of construction that always incurs the hazard, and has perhaps in some instances, produced the effect of legislating in the form of exposition. [emphasis added] Having regard for all of this, I have come to the conclusion we must take the statute as we find it and give the words their ordinary meaning . That means, of course, that Mrs. Boros' action falls within s. 15 of the Act. (

D) What Are The Criteria For A Court To Find That It Has The Jurisdiction To Correct A Legislative Drafting Error Or Mistake? [ 35 ] As to when a court may correct a legislative drafting error or mistake, Professor Sullivan in her 7 th edition textbook, in

section 12.01(3), noted that when a court finds that it is not possible to give meaning to a provision or when the court does find a meaning in the provision but that the meaning is so absurd that, in the view of the court, it cannot have been int

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