Redundancy/reading in words

Before going on to indicate that the expansive interpretation of s. 149(1)(d.5) submitted by the taxpayer would have the effect of making it unnecessary in the provision to refer to a municipality, Mactavish JA stated (at para, 52):

[L]egislatures generally avoid the use of unnecessary or superfluous words in legislation, and that every word in a statute is presumed to have a specific role to play in advancing the legislative purpose: … Proulx, 2000 SCC 5 … ..

The expansive effect given by the Tax Court to the exclusion from director’s liability in s. 227.1(2) had the effect of reading two words into that provision, namely, that a director is not liable for the corporation’s default unless “and until” the specified s. 227.1(2) procedures took place (in 2011). The decision was reversed.

At issue was whether a Barbados bank subsidiary (Glenhuron ) of the taxpayer, which used equity funds received from its Canadian parent to invest in short-term debt obligations, conducted its business principally with persons with whom it dealt at arm’s length, as required in s. 95(1) - investment business - (a). In rejecting the Crown’s submission that there was a requirement that there be an element of competition involved in the receipt of funds by Glenhuron, Woods JA stated (at para. 58):

[This] is an example of a court inferring a purposive interpretation from unexpressed legislative intent. This is … a legal error. As stated [in Shell]: “This Court has consistently held that courts must therefore be cautious before finding within the clear provisions of the [ITA] an unexpressed legislative intention ...” … . The emphasis in the Tax Court’s reasons on an unexpressed intention of competition is not appropriate in this case which involves a FAPI scheme that is drafted with mind-numbing detail.

CRA sought to compel Cameco to submit 25 listed employees of it and subsidiaries to CRA interviews. Rennie JA found that s. 231.1(1)(d) was limited to providing CRA aid in its “inspection, search, examination or review of records,” whereas here, CRA sought “oral answers to oral questions” in order to facilitate its “understanding of Cameco's potential tax liability.”

However, the Crown submitted that the word “audit” in the power under in s. 231.1(1)(a) to “inspect, audit or examine” encompassed the authority to ask questions of employees of a taxpayer, including the employees of its overseas subsidiaries, and to require that they be answered orally. In rejecting this submission, Rennie JA stated (at para. 23):

If the requirement to answer questions was implied in (a) then the obligation in paragraph (d) and the express power to compel answers, would be unnecessary. Interpretations that render any portion of a statute meaningless or redundant should be avoided

After indicating that the Minister's expansive interpretation of s. 231.1(1)(a) had the effect of rendering s. 231.1(1)(d) redundant, McVeigh J stated (at para. 42):

The presumption against tautology militates against this interpretation (Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20 at paras 45 and 46).

Before finding that CRA was precluded from requiring an Alberta lawyer to provide detailed accounts receivables listings for his clients on constitutional grounds, the Court found that such accounting records were clearly intended in the s. 232(1) definition of solicitor-client privilege to be excluded from the protection for such privilege by the exclusion in the definition of that term for accounting records. In this regard, restrictively interpreting the exception as applying only to accounting records whose disclosure would not trench on privilege:

would violate the presumption against tautology, according to which “[i]t is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain” (para. 32).

The Court affirmed a finding below that a company which placed children in foster homes for children's aid societies and assisted the foster parents was making a "re-supply" to the societies of foster care services which it had "acquired" from the foster parents, but that this resupply was not exempt because the company did not satisfy the requirement that its service be provided "in an establishment operated by the supplier for the purpose of providing such service." In rejecting an argument that "establishment" could encompass the business organization of the company, Rennie JA stated (para. 21):

[S]tatutes are to be interpreted so as to give meaning to every term and to avoid redundancy: Placer Dome Canada Ltd v Ontario (Minister of Finance), 2006 SCC 20 at para 45, [2006] 1 S.C.R. 715 at 739, citing Hill v William Hill (Park Lane) Ltd, [1949] AC 530 (HL). If, as contended, an establishment were to be more than the bricks and mortar of the physical building, the third criterion of the test would have been unnecessary - mere surplus language of no consequence.

In response to the appellant's access to information request under Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"), the Ministry refused to disclose various internal drafts of a policy options paper, on the basis that they contained "advice or recommendations" of public servants, which the Minister could therefore withhold under s. 13(1) of FIPPA. The Adjudicator found that the "advice or recommendations" exception did not apply, as "the information in the record must suggest a course of action that will ultimately be accepted or rejected by the person being advised."

Rothstein J stated (at para. 24):

[T]he Adjudicator left no room for "advice" to have a distinct meaning from "recommendation". A recommendation, whether express or inferable, is still a recommendation. "Advice" must have a distinct meaning. ... Otherwise, it would be redundant.

He found that, on a purposive reading, "advice" should be construed broadly. See summary under Access to Information Act, s. 21.

The taxpayer unsuccessfully argued (ca. para. 65) that s. 87(2) was intended to constitute a complete code as to the consequences of an amalgamation, so that it would be rendered redundant if an amalgamation could be governed by general Black & Decker ([1975] 1 S.C.R. 411) principles.

In rejecting an interpretation of the Trial Judge that indicated that s. 251(1)(c) would not apply in any identifiable circumstance, Evans, J.A. stated (at para. 5) "Parliament is presumed not to intend provisions to have no practical application".

Rothstein J. refused to give an expansive interpretation to what was charitable in the context of a submission that a sports organization should be considered to be charitable in part in light of the consideration that an expansive interpretation would undercut the distinction drawn under the Act between non-profit organizations that were operated exclusively for social welfare, and charitable organizations, and stated (at para. 28):

"When courts consider expanding the definition of charity, therefore, they must consider whether what is being proposed is an incremental change, or one with more complex ramifications that is better left to the legislature."

After noting that the interpretation advanced by the taxpayer had the effect of making a statutory definition of "hedging" redundant (as such interpretation had the effect of limiting the taxpayer's mining profits to the consideration actually received from sales of its production, which would have been the case even without their purported expansion to hedging profits), LeBel J. stated (at para. 45):

"Under the presumption against tautology 'every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose' ... . To the extent that it is possible to do so, court should avoid adopting interpretations that render any portion of a statute meaningless or redundant ...".

Sharlow J.A. reversed a finding of the Tax Court that the words 'as recorded by a pharmacist' in s. 118.2(2)(n) could be ignored stating (at p. 6031) that "it is for Parliament alone to determine whether the words 'as recorded by a pharmacist' should be removed ... ."

S.231.2(1)(a) of the Act, which referred to a right of the Minister to require the production of "any information", was found not to be restricted to the production of documents and records given that documents and records were specifically dealt with in s. 231.2(1)(b) of the Act. After referring to the statement in Communities Economic Development Fund v. Canadian Pickles Corp. [1991] 3 S.C.R. 388 that "it is a principle of statutory interpretation that every word of a statute must be given meaning", Malone J.A. stated (at p. 5543):

"Applied in this case, that principle dictates that meaning must be given to both paragraphs (a) and (b) of subsection 231.2(1), and unless there is good reason to the contrary, a different interpretation must be given to both paragraphs and different meanings to the words 'information' and 'document'."

The Court rejected a submission of the Crown that had the effect of adding the words "at any time" to the provision in question.

Rothstein J.A. found that to infer that the requirement in s. 8(1)(I)(i) that professionals be "recognized" by statute meant that a statute must provide for the regulation of the professional organization, would entail reading words into the statute that were not there.

In responding to the taxpayer's submission that "the use of the word 'encore' in conjunction with 'ou' in paragraph 20(1)(gg), where the English uses only the word 'or' indicates that the entire clause which follows is separate from the preceding clause", Linden J.A. stated (at p. 6012):

"The word 'encore' seems to be more accurately interpreted as a linguistic flourish which allows the drafters to join the two clauses together more smoothly. It is a matter of esthetics not one affecting the meaning of the provision."

The taxpayer argued that his assessment should be vacated because the Minister failed to act with all due dispatch to reconsider his assessment. Hugessen JA dismissed the taxpayer's appeal. Ginsberg, decided a week before, establishes that this is not a basis to vacate an assessment. Moreover, the taxpayer's right to appeal under s. 169(b) (i.e. where the Minister has taken 90 days or more to respond to a notice of objection) would be nonsensical if the effect of the Minister's failure were already to vacate the assessment.

At 5407:

"It has been recognized as a 'settled canon of construction' that 'a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.'"

An interpretation was preferred which avoided rendering an exception to an exemption provision redundant.

An interpretation was avoided which would have rendered the exclusion from income under s. 56(1)(n), for the first $500 of prize money, by including that same amount in income under s. 6(1)(a) (p. 5416).

Reference was made to the principle that "'a court of law is bound to proceed on the assumption that the legislature is an ideal person that does not make mistakes'."