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External Aids in Statutory Interpretation: Svangtun v Pacific National Exhibition.

The most eloquent of facta are no more useful than a John Grisham novel if they misapprehend the issues before the court. An unwelcoming example of such an error occurred in the recent case of Svangtun v Pacific National Exhibition, where counsel failed to properly identify the relevant case law to their appeal leaving the judiciary to sit unassisted.[i] This has resulted in a decision that, if not appealed, should be swept under the rug as having little value as a precedent.

 

The legal issue that was not addressed in Svangtun v Pacific National Exhibition was the proper use of external aids when engaging in statutory interpretation. External aids being anything outside the provisions of a statute – essentially any form of evidence.[ii] This article will begin with a brief review of the law relating to the use of external aids when considering questions of statutory interpretation. It will then turn to the court’s approach in Svangtun v Pacific National Exhibition and conclude with some brief comments.

 

Statutory Interpretation – A Brief Review

 

Although, modern statutory interpretation has relaxed the constraints placed on external aid, the starting point for their use should be Justice Major’s comments in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), where it was set out that: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the court’s need to resort to external interpretive aids.”[iii] These comments were later endorsed and repeated by Justice Iacobucci in the Supreme Court of Canada’s decision in Bell ExpressVu Limited Partnership v. Rex.[iv] The court then went on to elucidate the meaning of genuine ambiguity:

 

29  What, then, in law is an ambiguity?   To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115).  The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid).  By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations.  In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite:  “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.[v]

 

The Supreme Court of Canada’s statements are seemingly impermissive and binding stare decisis.  However, Ruth Sullivan, the author of Sullivan on the Construction of Statutes, suggests that the use of external aids should not be limited to only when genuine ambiguity arises and has criticized the Supreme Court of Canada’s decision in Bell ExpressVu Limited Partnership v. Rex.[vi]

 

Sullivan argues that to only consult external aids when ambiguity exists is simply a vestige of the plain meaning rule.[vii] Further, she argues that a finding that a provision is not ambiguous is a conclusion reached at the end of interpretation. Sullivan asserts that these external materials should be consulted and given their appropriate weight based on relevance and reliability. Notably, lay affidavit evidence is not an external aid that Sullivan argues should be admissible – remember this for later.

 

The most recent decision that addressed Sullivan’s opinion criticizing the Supreme Court of Canada’s Decision in Bell ExpressVu Limited Partnership v. Rex is the Court of Appeal for Saskatchewan’s decision in R v Big River First Nation.[viii] The court in R v Big River First Nation noted that although Sullivan’s criticisms of Bell ExpressVu have some appeal, the Supreme Court of Canada has on numerous occasions affirmed this approach when considering external aids.[ix] “Further, there is a sound argument that the Bell ExpressVu approach more fully respects Parliament’s direction to interpret all enactments in accordance with the principles specified in s. 12 of the Interpretation Act.”[x]

 

Svangtun v Pacific National Exhibition – Errors and Omissions

 

In Svangtun v Pacific National Exhibition, the court was asked to examine the admissibility of affidavit evidence in the context of interpreting s. 91 of the Public Health Act.[xi]  As this was an appeal from the interlocutory decision of a Master, Justice Sharma sat alone to hear the appeal.

 

The case consisted of three parallel actions brought by infant plaintiffs for damages they alleged resulted from an E. Coli outbreak in 2009 at a petting zoo. Prior to the commencement of the actions, plaintiffs’ counsel requested a large amount of documentation from the Vancouver Coastal Health Authority under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [FIPPA]. There were approximately 1500 pages released under FIPPA that contained redactions of personal information. These same redactions were made in the documents produced 8 years later as part of the litigation.

 

The Vancouver Coastal Health Authority cited s. 22 of FIPPA and s. 91 of the Public Health Act, S.B.C. 2008, 28 as legislation requiring the redactions. Counsel for the plaintiffs disagreed and applied to the court for copies of the unreacted documents.

 

The parties agreed that the issue on appeal was the proper interpretation of s. 91 of the Public Health Act, which is a question of law. Justice Sharma succinctly summarized the issue as:

 

[11]        The primary issue, both before the master and on appeal, is whether s. 91(2) of the Public Health Act prevents the disclosure of the unredacted documents.

 

[12]        Section 91 of the Public Health Act provides that:

 

91(1) A person who has custody of, access to or control over personal information under this Act must not disclose the personal information to any other person except as authorized under this or any other enactment.

 

(2) A person referred to in subsection (1) is not, except in a proceeding under this Act, compellable to disclose or provide evidence about personal information the person has custody of, access to or control over.

 

[13]        The parties agree that the documents sought by the plaintiffs are relevant for the purposes of documentary disclosure under the Rules. They also agree that the redacted portions at issue constitute “personal information” as defined by the Public Health Act.

 

[14]        However, they disagree on whether the effect of s. 91(2) is to preclude disclosure of personal information. The plaintiffs argue that the s. 91(2) requirement that a person not be made “compellable to disclose or provide evidence about personal information” applies only to “evidence about personal information”, which is a distinct category from “personal information”. The defendants and the Attorney General disagree, and say that the correct interpretation of s. 91(2) precludes this Court from ordering the disclosure of the information at issue.

 

The plaintiff had also appealed the admissibility of an affidavit of a provincial health officer, Dr. Bonnie Henry, on the basis it contained opinion evidence. At the initial hearing, Master Scarth permitted the affidavit to be entered into evidence; however, she concluded that the affidavit was unhelpful as it did not add anything of significance beyond what was discernible from the language of the statute itself.[xii] At the time that it was presented to be entered, the plaintiff objected on the basis that opinion evidence is not properly considered on matters of statutory interpretation.

 

Dealing with the admissibility of the affidavit, Justice Sharma held:

 

[24]        As a general observation, any portion of an affidavit that expresses an opinion about the correct interpretation of a statute is inadmissible as constituting legal argument; it also constitutes inadmissible evidence because it is opinion evidence that goes to the ultimate issue before the court.

 

[25]        Before me, the Attorney General conceded there were portions of that affidavit which constituted opinion evidence. However, the Attorney General sought to rely on some of the inadmissible content as “submissions” rather than evidence. The plaintiffs maintained that the opinions ought not to be before the court in any form.

 

[26]        I agree that there are portions of Dr. Henry’s affidavit that are inadmissible and/or irrelevant, but I also find portions of her affidavit to be helpful in understanding how the legislative scheme operates.

 

[27]        Counsel for the Attorney General properly conceded that paragraphs 19 and 25 of the affidavit are inadmissible and did not seek to rely on them in any form. I also find paragraphs 16, 18, 22, and 23 to be inadmissible and I have ignored those paragraphs.

 

[28]        However, in my view, the remainder of the affidavit is factual and uncontroversial evidence that animates this Court’s understanding of the legislation in a way that is helpful beyond just reading the words of the statute.[xiii]

 

The conclusions in this excerpt mean that Justice Sharma held that the opinion evidence within the affidavit was inadmissible but the lay fact evidence within the affidavit was admissible.

 

Justice Sharma goes on to specifically rely on the affidavit in her interpretation. In fact, it is backbone she builds her interpretation on, as set out in the decision:

 

[43]        For the reasons below, I favour the second interpretation.

 

[44]        As Dr. Henry’s affidavit explains, the scheme under the Public Health Act permits, inter alia, the collection of private medical information from healthcare providers, and in some circumstances, mandatory testing for disease. These significant, potentially intrusive powers lead to the acquisition, and sometimes the production, of personal information. Dr. Henry observed that the reporting requirements and related administrative procedures allow prompt public health interventions to prevent further spread of the disease, which, obviously, is a major object of the Public Health Act.

 

Here it can be seen that the affidavit was relied upon to assist Justice Sharma in discerning how the act operates, the powers granted by the act, and the object of the Public Health Act.  A flaw in the reasoning Justice Sharma’s reasoning was that insights are somehow not opinion or argument; otherwise, Justice Sharma would have ruled that they were inadmissible. So then was Dr. Henry speaking for the legislature? Otherwise, it is impossible to see how this evidence could not be opinion, argument, or outside the first-hand knowledge of a provincial health officer.

 

Outside of the aforementioned flawed reasoning, there is a complete lack of reference to the proper use of external aids in statutory interpretation. There is no mention of the Supreme Court of Canada’s jurisprudence or a mention of genuine ambiguity. If Justice Sharma had been properly informed of the relevant case law, I would think that the affidavit would not have been relied upon and, perhaps, not admitted as genuine ambiguity never existed between the interpretations. I would also contend that the lay affidavit of a provincial health officer is neither relevant nor reliable in the context of statutory interpretation.

 

Closing Comments

 

Personally, I disagree with the Supreme Court of Canada and the Court of Appeal for Saskatchewan. The approach endorsed by these courts presumes that the purpose of legislation will be identifiable without the assistance of any external aids. This presumption exists in the fact that a court will be required to identify the purpose of a statute or provision prior to being able to determine if a genuine ambiguity exists between two competing interpretations.   Now, I do not contend that affidavit evidence should be relied upon, but external aids that can assist the court  discerning legislative intent should be admissible prior to genuine ambiguity arising. Notably, legislative history is one external aid that historically has been admissible for the purpose of elucidating legislative intent; and, I would argue in a certain contexts it remains admissible when determining the purpose of legislation.[xiv]

 

In either case, until the Supreme Court of Canada rules differently, external aids will only be admissible to assist with questions of statutory interpretation where genuine ambiguity exists. The parties in Svangtun v Pacific National Exhibition failed to adequately identify the relevant case law for the court. This caused the appellant judge to improperly rely on affidavit evidence during her interpretation.

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[1] Svangtun v Pacific National Exhibition, 2019 BCSC 1542 (CanLII) [Svangtun Appeal].

[1] Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed.,(Markham: LexixNexis, 2014) at 657 [Sullivan].

[1] CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC) at para 14.

[1] Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 SCR 559 at para 29.

[1] Ibid.

[1] Sullivan, supra note ii at 657, 486.

[1] Ibid at 660.

[1] R v Big River First Nation, 2019 SKCA 117 (CanLII) [R v Big River First Nation].

[1] R v Big River First Nation, supra note viii at para 21.

[1] Ibid.

[1] Ibid.

[1] Svangtun v Pacific National Exhibition, 2019 BCSC 121 (CanLII) at para 72.

[1] Svangtun Appeal, supra note i paras 24-28.

[1] See Myers v. Mannette, 2003 NSCA 64 (CanLII) at para 25.

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