CHAPTER 4

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INTERPRETING THE ACT AND THE REGULATIONS

4.1 Statute-based Rules of Interpretation

The main statutory source of rules of statutory and regulatory interpretation is the Interpretation Act. Tribunals should take note of several of its provisions.

One of the principal rules is embodied in the phrase "the law shall be considered as always speaking" ["la loi parle toujours"]. Section 10 of the Interpretation Act provides: "The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning." Courts and tribunals must always bear in mind that the effects of a law must accord with its purpose.

The second rule is complementary, and pertains to the remedial effect of legislation: "12. The Interpretation Act Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."^{575 Citation}

Social welfare legislation, as a whole, is considered remedial.^{576 Citation}

The law normally creates obligations and grants powers, rights, authorizations and capacities. Depending on the case, it uses the terms "may" or "shall": " 11. The Interpretation Act The expression 'shall' is to be construed as imperative and the expression 'may' as permissive." Obligations are generally expressed as the present indicative of the verb having the principal meaning and occasionally by verbs or phrases containing this concept. Grants of powers, rights, authorizations or capacities are essentially expressed with the verb "may" and occasionally with phrases containing these concepts.

Boards of referees would do well to consult s. 25 Section 25, which provides:

25. (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.

They should also refer to ss. 26-30 Subsection 26-30 which pertain to the way time and age are computed. Finally, ss. 31 Subsection 31, 32 Subsection 32 and 33 Subsection 33 should be cited here:

31. (2) Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given.

32. Where a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the form used.

33. (1) Words importing female persons include male persons and corporations and words importing male persons include female persons and corporations [and in French, "Le masculin s'applique, le cas échéant, aux personnes physiques de l'un ou l'autre sexe et aux personnes morales"].

(2) Words in the singular include the plural, and words in the plural include the singular.^{577 Citation}

(3) Where a word is defined, other parts of speech and grammatical forms of the same word have corresponding meanings.

In the Interpretation Act, the term "enactment" encompasses statutes and regulations. The definition of "regulation" in s. 2(1) includes an order, regulation, rule, rule of court, form, by-law, resolution or other instrument issued, made or established (a) in the execution of a power conferred by or under the authority of an Act, or (b) by or under the authority of the Governor in Council. Not all of these enactments are regulations as understood by administrative law, i.e., delegated legislation. A real regulation is an enactment of general and impersonal application made in the exercise of a legislative power expressly conferred by statute.^{578 Citation} Regulations have the same binding effect as statutes, in respect of an indefinite number of people and situations. The EI Regulations qualify under this definition. They may be contrasted with a simple directive, circular, instruction or manual, which may be of general and impersonal application but is not made under an express and precise grant of legislative power like ss. 5(4) Subsection 5(4) of the Act, 7(4)(c) Subsection 7(4)(c) of the Act, 24 Subsection 24 of the Act, 69 Subsection 69 of the Act, 109 Subsection 109 of the Act, 110 Subsection 110 of the Act, 123 Subsection 123 of the Act, etc., of the Act. Thus, c. 13 of the Benefit Manual, which pertains to appeal procedures, is neither a statute nor a regulation, although it contains extremely useful directives applicable to boards of referees.^{579 Citation}

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