expressly mention something means it was impliedly excluded courts have limited power reluctant to read-in rebuttable! absurdity cannot apply if it displaces context analysis sometime mentions one out of excessive caution; other not mentioned b/c implicit if wanted to exclude would do so explicitly Children’s Aid Children’s Aid Beyond internal coherence in the scheme of the act, there should be vertical and horizontal coherence. HORIZONTAL COHERENCE – refers to other statutes referential incorporation If any other statutes are referentially incorporated (through defns etc) – should look to these statutes in particular to ensure coherence b/c legislature by RI implies commonality Authority to RI is BCIA s44 Other relevant statutes (similar subject matter aka pari materia) assumes legislature is unified entity that is consistent “one voice” Driedger suggests that any differences in wording in statutes pari material might suggest differences in intended meaning, scope or effect. (b/c diff statutes have diff intentions thus diff meanings for words) Columbia River Parallel Legislation Might apply if areas of concurrent jurisdiction btwn feds/prov RISK: rationale of a unified entity with one voice does not apply Look at other jurisdictions legislation in Merk (3-35) Useful to look at parallel provisions and territorial legislation, identifies and supports Sullivan’s interpretation that comparison of statutes with same subject matter is instructive (CHRC 3-48) Bell ExpressVu Merk – Binne (maj) CHRC – LeBel and Cromwell JJ IF CONFLICT BTWN ENACTMENTS There is a true conflict with statutes require to do conflicting things court emphasizes that if you can comply with both there is no conflict Presumptions to apply to deal with conflict: newer is better (later enactment prevails over previous) specific statute (more detailed) will prevail over general statute (too broad) specificity> time enacted (earlier, specific act prevails over later general act) Levis v Fraternite de Policiers VERTICAL COHERENCE - enforcing legal hierarchy Paramountcy Constitution> Human Rights Statutes > Statutes > Sub Leg> If conflict – higher
UNLESS there is contrary intent (Even if interferes with accrued or accruing right was there a contrary intention per BCIA s2(1)) Look for indication of a new intent in amending legislation (i.e. repeal AND replacement) Legislature intended to extinguish accrued or accruing right Factor Details Acquired, Accrued, Incurred if completed the right is distinct, tangible, concrete and capable of immediate enjoyment or effect therefore it is a legally enforceable right that others should not interfere with Accruing? Rule of effectivity/rule against tautology – is it unfair for a something to be a lesser right just because it is in progress, shouldn’t this also be protected? SCOTT Think about it narrowly – it is more than a hope or expectation, it needs to be substantial steps where the right would be inevitable given the steps already taken Substantive steps (essentially everything other than purely procedural steps where the eventual fulfillment was inevitable given the facts) Cameron JA “before a right may be said to be ‘accruing’, the events giving rise to it or the conditions upon which it depends for its existence, must have been so set in train or engaged as inevitably to give rise in due course to the right” DIKRANIAN Affirms Scott’s narrow interpretation using Cote’s criteria for a vested right: the individuals legal situation must be tangible and concrete rather than general and abstract legal situation must have been sufficiently constituted at the time of the new statute’s commencement possibility of a right is not enough NEEDS to be tangible situation must have materialized PUSKAS Very narrow! A right cannot be accrued or accruing until its eventual accrual is CERTAIN and not conditional on future events