Achieving Unity in the Interpretation of Federal Private Law:
Legal Framework and Fragments of Judicial Discourse

I. Interpretation of Federal Legislation in the Absence of Formal Unity of Federal Private Law

B. Seeking Unity: Interpretation of Federal Private Law Legislation by the Judiciary

2. Judicial Power to Unify Federal Private Law in Formal Terms

As we have observed, anyone interpreting federal legislation faces a variety of questions. When dealing with an uncertain or incomplete provision and multiple sources of possible meanings, the interpreter's role is essentially to identify the reasonable meaning and effect of a provision. By moving through what might be called a "forest of symbols", they seek "correspondences",[216] and try to determine their own conviction as to the meaning of the provision. By applying intuition and reasoning, the interpreter can, in some cases, detect a unity of meaning, and conclude that the provision is uniform in its conceptual aspects or application. A number of considerations come into play in reaching that conclusion, however. The interpreter must be satisfied that uniformity can be identified from the textual or contextual elements of the provision, or that it is consistent with the intention of Parliament or the object of the provision. In other words, it must be clear to the interpreter that uniformity is inherent in the possibilities and resources of the provision and that it can in fact be determined from them. This is the subject of Section (a), the interpreter's power in the sense of ability. The interpreter must also ensure that they have not exceeded their jurisdiction by concluding that there is uniformity of conception or application - that they have not inferred unity of meaning where the provision, as enacted by Parliament, in reality refers to a plurality of formal sources of private law. This is the subject of Section (b), the interpreter's power in the sense of jurisdiction.

The real issue, in this context, is therefore to confirm the dual "power" of the judge, in practice and in theory, to effect unification of federal private law where there is an uncertain or incomplete statutory provision.[217] In this case, how is the bar to be set, beyond which the judge is not identifying unity in the sources of private law in the provision, but creating it? That question raises the problem of the creative power of a judicial interpreter, in relation to the official theory of the interpretation of legislation, which assigns paramountcy to the meaning predetermined by Parliament.[218] Underneath that problem, however, and the dividing line between legislator and judge, we find the problem associated with the plurality of the formal sources of federal private law.[219] That underlying problem makes the distinction between what is considered as being of the essence of the legislation, of its sameness, and what is considered, on the other hand, as not being part of it, and being extrinsic to it. It therefore involves, first, the interpretational sources determined from the intrinsic substance of the legislation, and second, the suppletive sources drawn from a source that is formally extrinsic to the legislation. As we will see, the latter sources are, by the operation of complementarity with a plurality of provincial legal systems, most likely to cast doubt on the judicial power to unify.

(a) Power/Ability

A verification that focuses on the available resources of the law, the practical possibilities of uniform interpretation, focuses first on the substance of the legislation. When dealing with an uncertain (ambiguous, obscure, vague, etc.) provision, the interpreter adopts various procedures for interpreting that allow the meaning of the provision to be clarified.[220] For example, where there is a discrepancy between the two language versions, they may adopt a systematic method and try to identify the shared meaning.[221] Where the intention of Parliament seems to be implicit in the legislation, they may also apply contextual methods and recognize a meaning in, for example, the legislative history, related enactments or the end results sought by Parliament.[222] They could also refer to judicial decisions in which the legislation has been applied.[223] In most cases, therefore, unification of the meaning of a private law provision will seem to be justified since it results from a verification that focuses on the substance or sameness of the legislation. In that case, the interpreter will adhere to the formal confines of the legislation, the framework established by the legislation itself. While sources in which interpretations are found may be considered to be "suppletive" in terms of meaning,[224] they do not, as a rule, add anything intrinsically to the legislation, and are essentially used to determine the meaning that the legislation is presumed to contain and lead to its object. From that perspective, the sameness of the legislation, the interpreter is in fact not precluded from relying simply on the ordinary language. Unity of meaning may even be achieved in the course of the preliminary exercise of determining constitutional validity.[225]

However, checking into the resources of the legislation may lead to the meaning being insufficient, and the provision being incomplete. In those cases, the ordinary methods of interpretation do not provide a way of determining an intrinsic meaning. The interpreter must then identify the thing that definitely constitutes a legislative vacuum and refer to elements of the overall context that are extrinsic to the provision. However, care must be taken not to determine the sources of the provision arbitrarily.[226] Absent an explicit reference to particular formal extrinsic sources, or a sufficiently clear indication of the provenance of such sources, provincial law will be used as suppletive sources of private law. An interpreter who is dealing with a private law legislative vacuum will therefore, and not without reason, hesitate before concluding there is unity of meaning in a provision by relying, for that purpose, on an extrinsic reference system that is uniformly applicable in all provinces. In those cases, the interpreter's analysis must first have addressed the validity of that other reference system and, more directly, the second aspect of the dual determination: the limits of the interpreter's jurisdiction.

On the question of the other reference system, which is not based on the legislation itself, on its sameness, and rather derives from suppletive sources that are formally extrinsic to the legislation, and are thus characterized by their otherness, the validity, and perhaps even the existence, of a general pre-established system in the federal judicial system must be questioned. Absent a formal reference or clear indication,[227] we find it difficult to see what system other than the law of a province could apply uniformly as suppletive law in relation to private law. We concluded earlier that there is no federal common law.[228] With the possible exception of specific cases relating to Crown immunity or aboriginal law,[229] the principle of complementarity should ordinarily lead to application of provincial private law. If any intention must be presumed where a provision is incomplete,[230] it is that Parliament intended to refer, as the suppletive law, to the rules, principles and concepts in force in the legal system to which jurisdiction in relation to private law is assigned in principle.

The argument that there is an unenacted common law created by judges interpreting federal legislation, and that they draw on that system in preference to suppletive provincial law to complete that legislation, does not seem to us to be valid in terms of formal sources.[231] Such a system, erected by the courts through the convergence and unification of the legal traditions (what has been called "derivative bijuralism"), seems to us to be a speculative source - at the outside, a real source of law - rather than a formal source, properly speaking.[232] It can be critiqued from at least two angles. Its primary effect is to institute, from above, a common law where the Constitution does not provide for it.[233] As well, as we shall now consider, there is nothing that would authorize a judge dealing with an incomplete private law provision in federal legislation to develop mixed, autonomous sources of private law and then, at their own initiative, effect a formal unification of the suppletive sources of federal law.

(b) Power/Jurisdiction

On the question of the power of the judge to complete a federal private law provision that is incomplete, the analysis is theoretically based on the separation of the legislative and judicial branches of government.[234] This is therefore a complex question and numerous reservations and considerations come into play. For the purposes of this study, we would note only that it is generally recognized that the judicial branch is not authorized to substitute its will for the will of Parliament.[235] The judge's role is not limited solely to passively applying the law, but they must nonetheless respect and adhere to the sovereign will of Parliament when they interpret and apply legislation.[236] Based on that principle, it can be said that judges are not authorized to fill legislative vacuums by virtue of a creative power where there is no express or implied intent that can be identified in any way.[237]

On the question of what constitutes a legislative vacuum, and in what circumstances, and how, a judge is or is not authorized to fill the gaps in the legislation, there are obviously some grey areas.[238] Professor Ruth Sullivan, for example, makes a distinction between (i) the idea of "curing" or "filling" gaps in legislation or an under-inclusive provision and (ii) the idea of "supplementing" an under-inclusive provision.[239] In the latter case, she writes, the courts may rely on their inherent jurisdiction to supplement the legislation and must, for that purpose, refer to the common law.[240] In our view, in relation to federal private law legislation, that characterization of the question presents two problems.

First, while the distinction between a legislative gap and an under-inclusive provision seems to us to be entirely acceptable (in a way, it reflects our distinction between incomplete provisions and uncertain provisions), the distinction made between curing the problems and supplementing them seems to us to be somewhat artificial. The act of supplementing or completing legislation may be as applicable, if not more so, in the case of a void as in the case of vagueness or under-determination. In the private law context, a judge dealing with a void or "omission" ["silence"][241] in federal legislation may equally supplement the legislation by referring to suppletive sources of provincial law. Although those sources apply ex proprio vigore, in a sense, the interpreter plays a crucial role as mediator in identifying and resolving the omission. Second, while there is jurisdiction to provide legal solutions in applying federal legislation,[242] including cases where there is a legislative void, by referring to extrinsic supplementary sources, it must also be recalled that the jurisdiction of the courts cannot be based on suppletive federal common law in the case of private law.[243]

In short, the essential point to be recalled on this question is that a judge is not authorized to exercise a power to create law in the realm of private law when a legislative void is identified.[244] In the case of vagueness, the power exists, but their jurisdiction is limited to the legislative framework created by the intention of Parliament, whose role it is to complete it.[245] Where it is incomplete, there is no such power at the federal level, and when the situation is one of private law, reference must then be made to extrinsic suppletive sources, that is, the provincial sources in force in the province where the enactment is being applied.

It is therefore essential that the nature of a provision be identified in order to determine the extent of the courts' jurisdiction: the interpreter must (1) identify the existence of a legislative void or silence, an absence of meaning,[246] that makes reference to extrinsic suppletive sources necessary; and (2) where applicable, identify a private law issue that then makes reference to provincial sources mandatory.[247] Under the Constitution, and in accordance with Section 8.1 of the Interpretation Act, which embodies the complementarity principle, the courts do not have jurisdiction to fill the formal and substantive gaps in the law otherwise than by referring to provincial sources.

With respect to Section 8.1, we should, finally, consider the expression "unless otherwise provided by law / sauf regle de droit s'y opposant", which may be thought of as a possible reference to sources of judge-made law. We considered this earlier in our analysis of the logical sequence of interpretation, in which we discussed the views stated in the literature.[248] We concluded, essentially, that the expression is redundant. Suffice it to note, here, that in our view the expression, in the text of the section, is syntactically subsumed to the determination of a "necessity" to refer to provincial private law. The expression therefore refers specifically to a rule that precludes the application of the complementarity principle in cases where it would ordinarily apply (otherwise provided / s'y opposant). Given the prerequisite on which it is based, the predetermined "necessity" of referring to provincial private law, such a provision should logically be made expressly. Indeed, only an explicit derogation can be "held up against" the presumption that provincial sources "must" be applied as suppletive law where a provision is incomplete.[249] If the word "necessary" is given its full meaning, we can think of very few cases where the expression "unless otherwise provided" could refer to a judge-made rule.[250] The complementarity principle is embodied in the Constitution and has been reaffirmed ("clarified") by Parliament in the Interpretation Act.[251] It essentially relates to federal private law legislation. The courts cannot, generally speaking, substitute themselves for Parliament when it comes to deviating from the principle that allows for voids in its legislation to be filled.

In short, formal unity of federal private law legislation can be imagined only by Parliament excluding a diversity or plurality of sources.[252] The nature of that unity is, generally, a matter for Parliament, even in cases where its intention is relayed by the judge. As the official interpreter of legislation, the judge, coming between the point when a legislative text is conceived and when it is applied, does not have the power to concoct such unity by mixing sources. Unification of federal private law by the convergence of civil law and common law sources should be achieved, in relation to legislation, by Parliament alone.[253] Absent an express or implied intention of unity that can be clearly identified from all aspects of the legislation, the judge should presume the plurality of formal sources of private law - and thus a plurality of effects - that is embodied in the Constitution of Canada itself. However, as we will see in the part that follows, judges may go beyond that framework and may themselves determine the unity of the origin or conception of federal private law, relying on a variety of strategies or reasoning.

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