part 3 - stat interpretation

Question 1

-19 century classical approach to stat interpretation

Answer 1

using strict formalist set of rules

- Intention discoverable by plain meaning of the words

Question 2

• 1930’s legal realist

Answer 2

Words can have some determinate content but their meaning is always read by person and every person can only bring their own preferences to the text and colour it in their own way

Question 3

Driedger’s modern principle

Answer 3

words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”

TEXT
PURPOSE
NORMATIVE

Question 4

Textual mode

Answer 4

text and plain meaning

Question 5

conventions of textual mode

Answer 5

• clearest and simplest statement
• same word = same meaning
• dont speak in vain
• implied exclusion

Question 6

what is implied exclusion

Answer 6

if something is not mentioned in circumstances where one would expect it to be mentioned, it is excluded by implication
- important when things are drafted as lists, and not categories

Question 7

purposive mode

Answer 7

intention and purpose

Question 8

purposive mode schematic analysis

Answer 8

If you want a car to drive, all the tires have to be going in the same direction

• Searching 4 corners of the statute, to make sure it’s consistent with other parts of the statute
• Sometimes they also expand it to any other statute that exists

Question 9

purposive mode consequential analysis

Answer 9

If your interpretation leads to irrational, absurd result, anomalies… less persuasive

Question 10

Normative mode

Answer 10

CONSISTENT INTERPRETATION

• presumed intention = all statutes are presumed to include unwritten rules (unwritten norms)
• conventions: liberal construction, HR codes and other remedial acts

Question 11

Leading case on modern statutory interpretation in Canada

Answer 11

Rizzo & Rizzo Shoes

Question 12

Rizzo & Rizzo Shoes facts and issue

Answer 12

• Rizzo Shoes Ltd. was ordered into bankruptcy
• Rizzo’s employees lost their jobs

Does the termination of employment caused by bankruptcy of an employer give rise to a claim for termination and severance pay pursuant to the Employment Standards Act?

Question 13

Rizzo & Rizzo Shoes textual argument

Answer 13

• CA : the plain meaning, bankruptcy is not the employer terminating
• appellant: plain meaning only the difference between employer and employee (was the employment terminated by the employer or the employee)

Question 14

Rizzo & Rizzo Shoes purposive argument

Answer 14

The object of this act is remedial, designed to help people cope with the sudden economic dislocation of unemployment (condition that is true of losing employment by virtue of bankruptcy)

Question 15

Rizzo & Rizzo Shoes consequential arguments

Answer 15

If you excluded bankruptcy, consequence would be arbitrary, those fortunate to have been dismissed the day before are entitled to full protection of the law, and those dismissed one day later are not

Question 16

Rizzo & Rizzo Shoes normative argument

Answer 16

The object of this act is remedial, designed to help people cope with the sudden economic dislocation of unemployment

Question 17

Robichaud v. Canada facts

Answer 17

• R sexually harassed, discriminated against, and intimidated by supervisor
• Provision of human rights act that states that employer is responsible for all discriminatory acts of employees in the course of employment

Question 18

Robichaud v. Canada issue

Answer 18

ISSUE Whether or not acts in the course of employment includes acts of sexual harassment

Question 19

Robichaud v. Canada purposive argument

Answer 19

purpose to give effect to the principle of equality and nondiscrimination
- only way to affect the purpose of this act is by making employers responsible for sexual harassment

Question 20

Robichaud v. Canada consequential argument

Answer 20

Odd here is that you have a remedy for sexual harassment in hiring, but no remedy if you experience sexual harassment in the context of your supervisor relationship, seems like arbitrary distinction

Question 21

Canada (Attorney General) v. Mossop facts

Answer 21

• M’s partner’s father died

- Applied and refused bereavement leave (excluded same sex couples)

Question 22

Canada (Attorney General) v. Mossop issue

Answer 22

Does “family status” under s.3 in CHRA include homosexual couples?

Question 23

Canada (Attorney General) v. Mossop reasoning

Answer 23

• When parliament added family status in 1983 to the act, they explicitly did not add sexual orientation
• Rule of implied exclusion, s3 is a list, every item in this list was highly debated, and sexual orientation did not make it in

Question 24

Canada (Attorney General) v. Mossop consequential argument

Answer 24

wouldn’t it be surprising if gay/lesbian people were included in the act if they were a couple, but you’re not included in the act if you’re an individual, seems arbitrary

Question 25

British Columbia Human Rights Tribunal v. Schrenk facts

Answer 25

• M was an engineer assigned by his engineering firm to consult on a construction project
• S made discriminatory and harassing insults about M’s religion, birthplace and sexual orientation
• M brought human rights complaints against S and his employer

Question 26

what did schrenk argue

Answer 26

S and his employer argued that M couldn’t bring a complaint against them since neither were M’s colleague nor employer

Question 27

British Columbia Human Rights Tribunal v. Schrenk decision

Answer 27

Despite the lack of direct employment relationship, the SCC ruled that M’s complaint was valid

Question 28

British Columbia Human Rights Tribunal v. Schrenk reasoning

Answer 28

Human rights code supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability rather than as a relationship needing unilateral protection

Question 29

Quebec v. Boisbriand facts

Answer 29

Employees denied employment bc of physical anomalies that do not result in functional limitations

Question 30

Quebec v. Boisbriand reasoning

Answer 30

this stat is about preventing arbitrariness

• Loosing job with reasons not w/ your capacities = arbitrary
• Perceived disability must be part of it if we are trying not to be arbitrary
• Focusing on IMPACT. The effects and experience of being treated arbitrarily on the basis of these grounds

Question 31

idea of intersectionality

Answer 31

Can’t pull the two apart. The lived experience of being a woman of color was a product of racism and sexism
- It’s not both, it’s that discrimination at the intersection of these grounds was different

Question 32

how does the CHRA deal with intersectionality? problem?

Answer 32

you can bring a claim of your disadvantage based on intersection or multiple grounds
- still remain discrete categories that will distort my experience of having to put them into these blocks, any remedy will be inadequate because you have to break it down like this