LLP Outline – Fall 2013

I. BRANCHES OF GOVERNMENT a. THREE BRANCHES OF GOVERNMENT

i. Executive Branch Headed by the Prime Minister (or Premier) Includes the bureaucracy that administers and implements legislation Also does drafting of statutes Also creates subordinate legislation and administrative instruments

ii. Legislative Branch Elected representative of the people Debates, amends, and votes on bills

iii. Judicial Branch Independent Adjudicates legal disputes

II. LEGISLATIVE PROCESS a. GOVERNMENT BILLS AND LEGISLATIVE PROCESS

Government Bills are intended to implement policy that has been approved by Cabinet

b. LEGISLATIVE PROCESS i. First Reading A Government Bill will be presented to the Legislative Assembly (usually by

a minister) The Standing Orders of the Legislative Assembly require advance notice of

First Readingi. Bill requires a Royal Message in any case if it contains public revenue,

tax or impost The Bill is not actually read, the minister makes a brief general

statement of intent regarding the Billii. Second Reading

“debate in principle” Members speak for and against the general intent, but not specific

sectionsiii. Committee Stage

Each bill is debated on a section by section basis Each section is subject to a different debate and a different vote Courts sometimes use House debates in statutory interpretation

iv. Report Bill A report bill shows the accepted amendments using a revision

marking conventionv. Third Reading

The bill is reported as “complete with amendment” or “complete without amendment”

Little discussion at this point If third reading passes the bill becomes an Act, but it is not a statute

until given Royal Assentvi. Royal Assent

When the Bill becomes a lawvii. Commencement

Number of ways in which the Act comes into forcei. The Act says when it comes into force

ii. On the happening of a specific eventiii. Date set by governor generaliv. If it says nothing it comes into force upon royal assent

III. MEANING a. AMBIGUITY

i. EquivocationA word is unclear unless particular context resolves the doubt

ii. Syntactic ambiguitiesUnclear within the context which terms are modified by an included word or phrase

iii. Contextual ambiguitiesCommunication may contradict or be incompatible with another communication

iv. Diversity in experienceDiversity in experience may be reflected in language and cause ambiguities

v. Co-ordination problemsWhen the writer/speaker assumes that the audience uses words and phrases in a different way and uses the meaning of the audience

vi. New circumstancesTemporal gap may occur between the moment the communication is sent and the moment it is received

b. ELLIPTICAL COMMUNICATIONS Speakers/writers make assumptions about their audience and omit mention

in their communications of factors that should be taken for granted, assuming the gap will be filled

c. IMPROPER BIVALENCE Speaker/writer assumes the subject matter will be analysed as true/false,

while the experience of the audience may be one of gradations on a spectrumd. OVER-INCLUSIVENESS

A classification used by a rule-maker may be too broad to achieve his or her aims

e. UNDER-INCLUSIVENESS Classification is insufficiently general

f. VAGUENESS A rule-maker may use general terms assuming that the audience will use

particular criteria to render them more specificg. MISCOMMUNICATION

Speakers/writers may misspeak or unintentionally omit or include a word or phrase

II. STATUTORY INTERPRETATION a. THE DRIEDGER APPROACH

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the objective of the Act, and intentions of Parliament

b. GRAMMATICAL AND ORDINARY SENSE Words in legislation are presumed to be used in their usual or ordinary sense, absent clear intention to the contrary

What would the reasonable person of average intelligence and understanding take to be the usual meaning of the word(s)?

Can be shifted if a particular statute can be portrayed as addressing a specific group o Shaklee: definition of food”meal test”

c. PLAIN MEANING APPROACH When there is no ambiguity you give the words plain meaning, and there is no contextual approach necessary since the words are so clear

McIntosh majority: a statute should be interpreted in a manner consistent with the plain meaning of its terms

McIntosh dissent: secondary approach, but important if it is clear and the intention of Parliament is clear

Exception: plain meaning of the word is not always sensible Shaklee: plain meaning of the word food

d. DICTIONARIES May be referred to as an aid in the absence of a statutory definition of the

word Issues:

o Does not take into account contexto Different dictionaries give varying definitions McIntosh dissent, Shaklee, Riddell: dictionaries must be used with

caution Committee for the Commonwealth of Canada: dictionaries can be

useful at times Mowat: meaning of words must be looked at in the context of

surrounding words Mowat: dictionary definitions cannot be applied to get beneficial

outcomese. LEGAL TERMS OF ART

Legal words should retain their legal technical meaning Mowat: some words have a different meaning in a legal sense

f. SCHEME OF THE ACT The meaning of the Act should be looked at in the context of the Act as a whole

g. OBJECTIVE OF THE ACT/INTENTION OF PARLIAMENT i. Purpose Statement

ii. Titleiii. Marginal Notes

Added, not part of the legislation Not conclusive, but they can be of some use (McIntosh dissent)

iv. Historical Roots (Heydon’s case)1. What was the common law before making the Act?2. What was the mischief and defect for which the common law did not

provide?

3. What remedy the Parliament hath resolved and appointed to cute the disease of the Commonwealth?

4. The true reason of the remedyv. Intention of Parliament

Remedial: benefit conferringo Broad generous interpretation should be applied (Rizzo)o Ambiguities should be resolved in favour of the claimant (Rizzo,

Merk) Penal

o Rule of construction: Interpretation should favour the accused (McIntosh majority)

o Rule of construction only applies when real ambiguities are found (McIntosh dissent)

Regulatoryo Interpretation should have a broad purposive approach (Merk)

h. ABSURDITY If the language is clear and unambiguous, the plain meaning should

be adopted no matter how harsh or absurd the result; Parliament has the right to legislate illogically (McIntosh majority)

Common sense must be used (Riddell) Legislature does not intend to produce absurd results (Rizzo)

o Ridiculous or frivolous consequenceso Extremely unreasonable or inequitableo Illogical or incoherento Incompatible with other legislature, or with object of legislature

i. AMENDMENTS TO THE LAW (READING IN) Driedger says that minor amendments to the law are allowed to be

read in when there is a drafting error that occurred 3 drafting error types

1. Manifests absurdity (McIntosh dissent)2. A traceable erroro Suggested through history

3. An obvious correctiono Wording with provocation

III. STATUTORY AND COMMON LAW RULES, PRINCIPLES AND PRESUMPTIONS

a. INTERPRETATION ACTS Tense

BCIA s. 7 Legislation is to be read as “always speaking” Legislative words are to be interpreted according to the meaning

prevailing at the time of reading Singular/Plural

BCIA s. 28 Singular may include the plural and vice versa

Definitions BCIA s. 12 and 13

Definitions apply to the entire statute all to all regulations made under the authority of that statute, unless a contrary intention appears

Referential Incorporation Pulling the provisions from one statute into another If the provision in the secondary statute is repealed and replaced,

then the change is ambulatory: the new replacement definition in the secondary statute moves over into the primary statute

If the provision in the secondary statute is simply repealed, then the old definition would survive for the purposes of the primary statute

Computation of Time Periods General Rule

o BCIA s. 25o The first day is excluded and the last day is included

Exceptiono Exclusion of both the first day and the last dayo Triggered with the words “clear”, “at least”, or “not less than”

Holidayso Sunday is a holidayo Count all days including holidays, unless expressly stated in the

legislationo If deadline or expiration falls on a holiday then the deadline

moves to the next dayb. COMPONENTS OF A STATUTE

Titleo BCIA s. 9o Title is considered to be a part of the statuteo Lane: title different from the object of the Acto Committee of the Commonwealth of Canada: title supported

object of the Act Preamble

o BCIA s. 9o General statement of the object or purpose of a statuteo May be used for interpretation purposes, but not a part of the

Acto Anti-Inflation Act: preamble supported legislationo Roach: preamble should be used with caution

Purpose Statemento Provision set out in the body of legislation that declares the

principles or policies that legislation is meant to implement or the objectives it is meant to achieve

o Are part of what is enacted into lawo Signals legislative intent, and should be read as binding, broad

and part of the statute (Young Offenders Act, National Farmers Union v. Potato Marking Council)

Definitionso Exhaustive?

o Means: results in a statutory definition that’s exhaustive

o Includes: results in a non-exhaustive definition Headings and Marginal Notes

o Headnotes and marginal notes are not a part of the enactment and must be considered to be added editorially for convenience

Scheduleso Located at the end of a documento Clearly part of a statute and may be used for interpretation

purposes, but they are given less weight than the text itselfc. PRESUMPTIONS

Uniformity of Expressiono Words used by Parliament are deemed to have the same

meaning throughout the statuteo When different words are used in a statute they will be deemed

presumptively to have different meanings Rule of Effectivity (The Presumption Against Tautology)

o All words in an enactment are put there for a specific purpose and one should not adopt an interpretation of a provision that renders any of the words redundant

o Mowat: Parliament must have meant something by using redundant phrases

o Riddell: legislature does not waste words, different words must be interpreted as having different meanings

Rule of Constructiono A liberal or equitable construction permits a term to be

reasonably and fairly evaluated so as to implement the object and purpose for which the document is designed

o McIntosh majority: courts should find in favour of the accusedo McIntosh dissent: should only be applied when real ambiguities

are foundd. MAXIMS OF INTERPRETATION

The Principle of Associated Meaning (Noscitur A Sociis)o Words take their meaning from the surrounding wordso McDiarmid Lumber: enables courts to understand the

immediate context of the statutory words whose meaning is in dispute

The Limited Class Rule (Ejusdem Generis)o A general phrase will take its meaning from the list of the

specific words that precede it o The words must have some commonality and cannot exhaust

the classo Nanaimo City: assigning greater meaning to a phrase that has a

list of specific items before it would run contrary to intent The Implied Exclusion Rule (Expressio Unius Est Exclusio Alterius)

o If the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. The legislature’s failure to mention the thing becomes grounds

for inferring that it was deliberately excluded, exclusion is implied

o CR et al: tried to argue that what legislation said in the statute must have been all they meant; argument failed

e. INTERNAL COHERENCE Scheme of the Act

o Read the words of the Act harmoniously with the scheme and object of the Act

Horizontal Coherenceo The principles of interpretation that presumes a harmony,

coherence, and consistency between statutes dealing with the same subject matter (Bell Express Vu)

o Columbia River: differences in wording between statutes are presumed to reflect differences in the intended meaning or effect

o Mowat: cross-jurisdictional comparisons of statutes dealing with the same subject matter may be instructive

Vertical Coherenceo The legal requirement that the provisions of an enactment

must conform to higher level enactmentso If there is a conflict the higher level enactment prevails, and the

provisions of the lower level enactment that are inconsistent are inoperative

o Applicationso All legislation must be consistent with the Constitution

and the Charter Committee for the Commonwealth of Canada:

Courts will prefer the interpretation which confirms that the provision is constitutional at the time of its application

R v. Sharpe: Presumption that Parliament intended to enact legislation in conformity with the Charter

Bell Express Vu, R v. Gomboc: should only promote Charter principles when there is an ambiguity

o Federal laws prevail over Provincial lawso Human rights legislation is considered “quasi-

constitutional” and is paramount if there is a conflicto Subordinate legislation must be consistent with their

enabling statutef. HISTORICAL CONTEXT, LEGISLATIVE EVOLUTION, AND

LEGISLATIVE HISTORY Historical Context

o Facts existing at the time a statute was passed may be utilized Legislative Evolution

o Reference to previous versions of the same statute can assist in interpretation (McIntosh dissent)

o Proposed and un-enacted provisions might aid in interpretation (Mowat)

o BCIA s. 8: every enactment shall be construed as remedial o Exceptions o Declaratory amendments: simply declare or confirm

what the law iso Housekeeping amendmentso BCIA s. 37: tells the court not to presume that an

amendment has necessarily effected a substantive change in the law

Legislative Historyo Can be useful in determining the statute’s purpose and scope

(Reference Re: Firearms Act)o Materials that can be consulted as part of the legislative history

o Hansard debateso House Committee Reportso Briefing noteso Alternative draft versions of the statute or proposed

amendmentsg. ADDITIONAL COMMON LAW PRESUMPTIONS

Crown Immunityo Statute enacted by government does not apply to government

unless it clearly states that it doeso BCIA s. 14: enactments ARE binding on government, unless it

says otherwise Presumption Against Extra-Territoriality

o A legislature is presumed to enact a statute only in relation to persons, property, things or events that fall within the territorial boundaries of its legislative jurisdiction

o If you travel out of Canada the laws of Canada do not follow you; same for Provincial laws

Presumptions of Legislative Intentiono The court will adopt either a narrower (strict) or a broad

(liberal) approach to interpretation depending on the subject matter

Property Rightso Legislation which interferes with a person’s property rights

should be strictly construed in favour of the property ownero Whenever land is expropriated compensation should be paid

Criminal Lawo Penal enactments should be strictly construed so that any

uncertainty as to the meaning of the scope of the law should be resolved in favour of the accused (R v. Hasselwander)

Taxation Statuteso Strictly construed

Municipal Lawo Strictly construed

IV. TEMPORAL ISSUES a. ENACTMENT/COMMENCEMENT

Enactment refers to the completion of the formal legislative process (Royal Assent)

Commencement refers to the date that the statute has the force of law Once a statute is enacted, it may be referred to for interpretation purposes,

even though it hasn’t commenced There is a time lag between enactment and commencement in order for the

government to lay the necessary groundwork BCIA s.5 contains provisions to immunize against challenges that because

the law had not commenced, it wasn’t validb. TIMING OF COMMENCEMENT/REPEAL

BCIA contains provisions relating to the specific time of day at which legislation will take effect on the commencement date or cease to have effect on the date of repeal

S.4(1): an enactment commences at the beginning of the day on which it comes into force

S.25: beginning of day is 12:01am S.4(3): statute will cease to have effect at the end of the day on which it is

repealed, 11:59pm (exception when it is repealed and replaced)c. SUBSEQUENT CHANGES/TRANSITIONAL RULES

Expiration/deemed repealedA statute is said to have expired when it no longer has any practical significanceo S.4(4): a statute that has lapsed or ceased to have effect is deemed to

be repealedo BCIA s. 35o Legislation dies

AmendmentMay take the form of modifying existing language or adding new texto Common sense would suggest that the Legislature intended to make

a change in the meaning of the statutesupport found in remedial sentence of s.8

o BUT, BCIA s. 37(2) says that the amended law does not need to be substantively different

o Alternatively, amendments can be: Housekeeping Declaratory Substantive

RepealA statute or part of a statute ceases to have the force of law

i. No Revival: BCIA s. 35(1)(a) What is dead is dead Does not revive the previous legislation or the common law Courts should treat it as a new issue they have never seen

beforeii. Lawful Acts Not Affected: BCIA s. 35(1)(b)

Acts that were done under repealed legislation continue to be legal

iii. Protection for Accrued/Accruing Rights: BCIA s. 35(1)(c)

A repeal does not affect a right or obligation acquired, accrued, or accruing under the repealed legislation

Despite repeal the right can survive 4 things must occur

1. Repeal2. Right or obligation3. Acquired or accrued4. Must have occurred under legislation that was repealed

iv. Offences: BCIA s. 35(1)(d) Particular offences under a repealed legislation can still be

considered an offencev. Proceedings: BCIA s. 35(1)(e)

If procedure has been started before legislation was repealed, it can continue under the dead legislation

vi. References: BCIA s. 35(1)(f) A reference in an un-repealed enactment to a repealed piece of

legislation is read as a reference to the new form of the legislation (“the new enactment relating to the same subject matter”, if one exists)

If there is no new form, such references are read as thought the legislation had not been repealed, “so far as is necessary to give effect to the un-repealed enactment”

Repeal and ReplacementWhere an enactment or a portion of it is modified by repealing it and replacing it with new provisions (triggers s.35 and s.36)

i. Personnel: BCIA s. 36(1)(a) Seamlessly carry on

ii. Proceedings: BCIA s. 36(1)(b) New Act takes priority to the extent that it is possible

iii. Penalties: BCIA s. 36(1)(c) Conform with new Act

iv. Mitigated Penalty: BCIA s. 36(1)(d) If punishment varies between time of commission of offence

and time of sentencing, the lesser punishment appliesv. Regulation: BCIA s. 36(1)(e)

Continue in force under the new act so long as it is consistent with the new provisions

vi. Referential Incorporation: BCIA s. 36(1)(f) Reference to former act replaced by reference to new act No corresponding provision former definition continues

d. TEMPORAL OPERATION AND APPLICATION OF LEGISLATION Temporal operation: the period during which the rules embodied in

legislation are legally effective Temporal application: the range of facts to which legislation may

appropriately be applied There is a real possibility that the temporal application of the legislation

will not coincide with its temporal operation Presumptions and rule:

o It is strongly presumed that the legislature does not intend its law to apply retrospectively

o It is presumed that the legislature does not intend its law to interfere with vested rights

o There is no presumption against the immediate application of legislation. Concerns arising from such applications are generally covered by the presumption against interference with vested rights

o Legislation that simply declares the law may be applied retroactively. Such applications are not really retroactive, however, since in fact the law has not changed; it has simply been re-enacted in clearer or more specific terms

If applying new legislation to a set of facts would have the effect of changing the law for the past as well as the future, of effectively deeming the law to have been different from what it was when the facts occurred, then the application is retroactive

If applying new legislation to a set of facts would have the effect of diminishing or destroying rights possessed by a person when the legislation came into force that application interferes with vested rights

Methodology Resolving temporal application of legislation

1. Date2. What triggers the law3. Situate the facts in time4. Determine whether the relevant facts were

Complete: application of the provision is retroactiveproblematic: provision will not apply unless the presumption against such an application is rebutted

Ongoing: application of the provision is immediate-not problematic

Not yet commenced5. Determine whether applying the provision to the relevant facts

would interfere with vested rights6. If there is retroactivity and/or interference with a vested right what

is the argument against it? Rely on statutory interpretation techniques to determine intention of the legislature, with special emphasis put on the values underlying the presumptions

Ask questions such as:o Whether there is a good reason why the legislature might have

wanted to enact retroactive legislation or to disregard vested rightso Whether immediate application of the legislation would be unfair or

violate the rule of law Presumptions against retroactive application

o It is strongly presumed that legislation is not meant to be applied to facts that were already past when the legislation came into force

o In order to comply with the law or rely on it in a useful way, a person must know what the law is prior to acting

o Undermines social security and stabilityo Unfair if it inflicts loss or hardship on particular persons in ways that

could not have been anticipated or prevented

o Common law presumption: if legislation is meant to be retroactive, then it will say so (Gustavson, Mackenzie)

No presumption against immediate application of law Presumptions against interference with vested rights

o It is presumed that new legislation in not intended to be applied so as to interfere with vested common law rights, or with “acquired, accrued, or accruing” statutory rights

o If rights have vested or accrued at the moment new legislation comes into force, it is presumed that the former law under which those rights were acquired survives and application of the new legislation is postponed

o In order to benefit from the presumption against interfering with vested rights a person must show that the right for which protection is sought has vested

e. ACCRUING AND VESTED RIGHTS In each case the court must decide at what point in the procedure a

claimant’s hope of receiving the advantage sought is sufficiently crystallized to be recognized as a vested right

Must meet two criteria:o The individual’s legal situation must be tangible and concrete

rather than general and abstracto This legal situation must have been sufficiently constituted at

the time of the new statute’s commencemento The situation must have also materialized

Presumption: s.35(1)(c) A repeal or amendment does not affect acquired/accrued/accruing rights or privileges, unless something is stated to the contrary s.2(1)

3 kinds of issueso What kind of rights?o When can we say rights are acquired, accrued/accruing or vested?o Even if repeal does interfere, is there something in the legislation

that says it was designed for this to take place? Rebuttal To rebut the presumption against interfering with invested rights, express

words are not necessary. The court looks to all relevant evidence of legislative intent

Interference is a normal by-product of change S. 2(1): You have no right to the law as it has always been No one has a right to continuance of law as it stood in the past (Gustavson) Just because you have a right does not mean that you have acquired the

right (Scott)o You need to have taken necessary steps to make it accrued/accruingo Has to be something different than the right given to everyone else

(entitlement/intention)o Must be inevitable

Accruing rights must be for certain, with no outside things affecting the right (Puskcas)

V. SUBORDINATE LEGISLATION

Subordinate legislation is law which is enacted by bodies that have been delegated legislative powers by Parliament or Legislatures

Subordinate legislation has the force of law and is co-equal to statutes from which they come

Must go through all the stages that laws normally need to go through to become a law

Concerns:o A lot of law making is done by delegated powers, is this democratic?o Minister is one step removed from the actual legislature

a. Types of Subordinate Legislation The main type is a regulation Defined in s.1 of the BCIA Definition is confusing. Can help by distinguishing two main types of

instruments:o Legislative in nature: stands on the same footing as a statute, and are

subject to procedural requirements set out in the applicable statutes governing subordinate legislation

o Administrative in natureb. Instruments of an Administrative Nature

Refers to the concept of directives: various policy documents that are extensively used in modern government to guide civil servants and other government officials in exercising their statutory authority

Not legislative and do not have the binding force of lawc. Authority to Enact Subordinate Legislation

Nobody other than a legislature or Parliament has the inherent authority to enact legislation

If it is a regulation there must be a statutory authority for its enactment (legislature must have delegated its law making power)

i. Enabling Clause Refers to a statutory provision which authorizes a delegate to

enact a legislation Enabling clause will advise whether the regulation in dispute is

authorized or notii. Interpretation Act Provisions

BCIA defines enactment to include an Act or Regulation All rules set out in BCIA apply to subordinate legislation BCIA s.41: power to make regulations must be for purposes of

carrying out the Act Except under s.2(1)limits scope of regulatory power

S.13: consistency of expression-definitions flow down into regulation

d. Validity of enabling clause Courts look to intention of the Act Subordinate legislation must be authorized by enabling act and must be

consistent with the purposes and objectives of the statute (vertical coherence)

e. Arguing against Subordinate Legislation Grounds for challenging a piece of subordinate legislation arise from

explicit limitations in wording of the enabling clause

The authority in an enabling clause may be expressed in specific rather than general terms

The validity of subordinate legislation will turn on statutory interpretation exercises involving both the piece of subordinate legislation under challenge and relevant provisions of the parent statute

Statutory Interpretation Checklist

1. Lay out issue2. State Driedger Approach

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the objective of the Act, and intentions of Parliament

3. State BCIA s.8In apply Driedger we must keep in mind that the BCIA s.8’s imperative is to give all acts a large, liberal interpretation to ensure compliance with legislative intent

4. Ordinary Meaninga. Grammatical and ordinary sense

Words in legislation are presumed to be used in their usual or ordinary sense (reasonable person understanding)

b. Plain meaning approach When there is no ambiguity in the words

c. Dictionaries May be referred to as an aid

d. Legal Terms of Art Legal words should retain their technical meaning

5. Scheme of the Acta. Uniformity of expression

Words have same meaning throughout the statute, different words have different meanings

b. Rule of effectivity All words are there for a reason

c. Rule of construction Liberal or equitable construction

d. Principle of associated meaning Words take their meaning from surrounding words

e. Limited class rule General phrase will take its meaning from the list of the specific words that precede it

f. Implied exclusion rule If legislature meant to include something, it would have

g. Internal coherence i. Horizontal coherence

Harmony, coherence and consistency between statutes dealing with the same subject matter

ii. Vertical coherence Provisions of an enactment must conform to higher level enactments

6. Objective of the Acta. Purpose statement b. Title c. Preamble d. Headings and marginal notes e. Historical roots f. Intention of parliament g. Schedules

Subordinate Legislation

1. Is it a regulation or does it have the power of a regulation?a. Did it go through all the steps to become a regulation?

i. Signed by Minister and Lieutenant Governor?b. If it is not a regulation does it still act as a law?

i. How to determine if guidelines are equivalent to a regulation:1. Look to s.1 of BCIAguidelines may create rights that

are enforceable (Oldman River)2. Was it formally enacted, did it go through the process of

a regulation?3. Look to wording of guidelines to see if they are

mandatory4. Will the law be upheld the Courts?

2. If it does have the power of law, is the regulation valid?a. Enabling Clause

i. Is the regulation beyond the authority of the enabling clause?1. Does the enabling clause confer power?2. If the subordinate legislation goes beyond the conferred

powers, then it is not valid (Anti poverty Act)ii. Is the regulation consistent with the enabling clause?

1. If there is a conflict between the express language of an enabling clause and a regulation purportedly made under it, the regulation may be found to be invalid (Guzman)

b. Intention of Legislature through statutory interpretation of the primary legislation and the enabling clause

i. Is it consistent with the purposes and objectives of the statute?1. Vertical Coherence

Temporal Application

1. Diagram an outline (t1, t2, t3…)2. Spot the issue, is there a repealed provision?3. If there is a repealed provision, is there a vested/accruing right?4. Are there issues regarding retroactivity?

BCUC EXAMPLE: HOW TO ANSWER A QUESTION ABOUT TEMPORAL APPLICATION AND VESTED/ACRRUING RIGHTS1. DIAGRAM A TIMELINET1 s.133 of BCUC Act provides BCUC may order the utility company making an application for a rate increase to pay the costs of a party granted standing to participate in public hearings regarding the application [BCUC will entertain applications from a party for a costs order only after the BCUC has rendered its decision on the utility company’s application for a rate increase]T2 West Kootenay Power (WKP) applies for rate increase, public hearing is scheduled; PIAC is granted standing to participate in the hearing and does so (incurs expenses)T3 hearing is completed and the decision is reserved T4 s.133 is repealed and replaced by a new provision that says "No order for costs shall be

made."T5 BCUC makes decision on WK’s application and PIAC applies for costs; sum of $35,000 in expenses claimed ISSUE: Does BCUC have jurisdiction to order costs be granted to PIAC or does the new provision barring costs apply?WK: wants to argue that the new provision - the bar on costs - DOES APPLY TO THIS SITUATION so that BCUC cannot make a costs order in favour of PIACPIAC: wants to argue that the new provision - the bar on costs - DOES NOT APPLY TO THIS SITUATION so that BCUC can make a costs order in favour of PIAC2. IS THERE A REPEALED PROVISION?

a. IS THERE A VESTED/ ACQUIRED/ ACCRUED/ ACCRUING RIGHT?3. IS THE EVENT COMPLETED?

a. ARE THERE ISSUES RE: RETROACTIVE/ RETROSPECTIVE APPLICATION?

PIACs going to argue:

1. There’s an accrued/ accruing right under s.35(1)(c) + no contrary intention s.2(1)

- PIAC:o a. Framing the issue: was there a right at all under the repealed statute and WHAT is it?o b. Yes, there is a right to be considered for costs (for discretion to be exercised)

- West Kootenay:o a. Define accrued and accruing rightso b. Use case law

a. Scott and Dukranian talk about a solidified concrete situation that is sufficiently constituted

Whereas in this case, there was a hearing and PIAC participate. But two more things had to have happened: 1) release of the decision on whether to take the application and 2) BCUC applied for costs

The release of the decision in particular is important

b. Even if there’s an accruing right, there’s contrary intent. The statement is forceful: “no order for costs shall be made” to show that the intent of the legislation WAS to interfere with on-going proceedings

- PIACo a. Argue that the right to be considered for reimbursement constituted when they

became a party and got standing, participated and incurred expenses, and therefore it would not be fair

They had expectation reliance (policy reasoning)o b. The decision was inevitable, the commission was going to consider it and BCUC was

inevitable going to exercise their discretion Whether an application is handed in is inevitable too (within their control)

o c. There is nothing in the repeal to say that it is meant to apply to existing proceedings that had reached the point that they have reached: there’s no contrary intent

2. To apply this would be retrospective, it has not been rebutted- PIAC:

o The event has passed, therefore to apply the provision would be to give it of retrospective application

New prejudicial actions (inability to ask for costs) being applied to a past event:

1. Getting standing 2. Participating in the hearing 3. Incurring expenses

Does not fall into one of the three Dreidger exceptions 1. Not beneficial leg 2. Not protecting public 3. Not merely procedural, it’s a substantive thing

o There’s a presumption against retrospective application which is fairly strongo The presumption against retrospectivity has not been rebutted by the wording of the

statute (no express or necessary application) - West Kootenay:

o The situation is on-going, so immediate application of the law is proactiveo Attaching legislation merely to an ongoing state of affairs NOT to past prior eventso Could argue that it’s not a substantive right – it’s merely a procedural right

Only a request for considerationo There could be contrary intent rebutting the presumption against retrospectivity since

the new provision is strongly worded o 36(1)(b) is about procedures continuing under the new law, and this is a procedure and

therefore should apply here