{"id":3129,"date":"2019-04-10T00:52:15","date_gmt":"2019-04-10T00:52:15","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3129"},"modified":"2019-04-10T12:12:32","modified_gmt":"2019-04-10T12:12:32","slug":"the-return-of-textualism-at-the-scc","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/the-return-of-textualism-at-the-scc\/","title":{"rendered":"The “Return” of “Textualism” at the SCC?"},"content":{"rendered":"\n

Under the so-called \u201cmodern approach\u201d to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the \u201ctext, context, and purpose\u201d recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority\u2014text or purpose? The Supreme Court has said that clear text is dominant in the interpretive process (see Placer Dome<\/a><\/em>, at para 21; Canada Trustco<\/a><\/em>, at para 10), but at the same time, the Court has often adverted to the role of purpose in interpretation, to the extent that purpose or policy considerations could override clear text (see the opinion of then-Chief Justice McLachlin in West Fraser Mills<\/a><\/em>, at paras 40, 43). And, even if one could work out what the proper relationship is between text and purpose ,there is no guidance from the Court about what purpose, at what level of abstraction, should be relevant in the analysis. I have written about these issues before.<\/a><\/p>\n\n\n\n

Luckily, the Supreme Court has provided some guidance to answering these questions in Telus Communications v Wellman, 2019 SCC 19<\/a>. While the approach advanced in the case is not strictly textualist, it does represent the important idea that text dominates in the interpretive process, and that overall policy goals should not be permitted to override that text. While the Supreme Court is a laggard to these important conclusions (see the opinions of Stratas JA in Williams<\/a><\/em>, Cheema<\/a><\/em>, and Hillier<\/a><\/em>), they come better late than never.<\/p>\n\n\n\n

Facts<\/strong><\/h4>\n\n\n\n

The case involved an important question of statutory interpretation under Ontario\u2019s Arbitration Act<\/a><\/em>and Consumer Protection Act.<\/a><\/em> Wellman filed a class action against Telus, consisting of both \u201cconsumers and non-consumers\u201d [2]. The action alleged that Telus \u201cengaged in an undisclosed practice of \u2018rounding up\u2019 calls to the next minute such that customers were overcharged\u2026\u201d [2]. All of the contracts binding the class provided that any claims \u201carising out of or in relation to the contract, apart from the collection of accounts by Telus, shall be determined through mediation, and failing that, arbitration\u201d [3].<\/p>\n\n\n\n

The problem for Wellman et al, though, was that not all of the members of the class were \u201cconsumers.\u201d Under the Consumer Protection Act,<\/em> the arbitration clauses in the contracts are invalid, because \u201cit would otherwise prevent class members who qualify as \u2018consumers\u2019 from commencing or joining a class action of the kind commenced by Mr. Wellman\u201d [4]. The Consumer Protection Act<\/em>\u201cshields consumers <\/em>from a stay of proceedings under the Arbitration Act<\/em>\u201d [4]. Telus conceded this point as regards the consumers. But there were non-consumer, business customers included in the class. The core question was whether they could escape the effect of a stay sought by Telus.<\/p>\n\n\n\n

Wellman said that, under the Arbitration Act<\/em>, s.7(5), the court had discretion to refuse Telus\u2019 request for a stay against the business customers, so that the business customers could continue in the class. Section 7(5) says the following:<\/p>\n\n\n\n

7 (5)<\/strong> The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,<\/p>\n\n\n\n

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and<\/p>\n\n\n\n

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.<\/p>\n\n\n\n

Telus, though, fundamentally disputed this claim, arguing that under other provisions of the Arbitration <\/em>Act, exceptions are set out that are exhaustive of all the legislative exceptions in the Arbitration Act<\/em> scheme. Accordingly, to Telus, the Consumer Protection Act<\/em> does not apply to the business consumers, and instead, the business claims should be stayed under the Arbitration Act<\/em> [7].<\/p>\n\n\n\n

Analysis in the Case<\/strong><\/h4>\n\n\n\n

Moldaver J wrote for the majority, accepting Telus\u2019 argument. After citing the general modern approach to statutory interpretation of text, context, and purpose, he first grounded his view of the statute in its purpose. One of the principles of the Arbitration Act<\/em>, appearing in the legislative history, was the need to ensure that parties \u201cabide by their agreements,\u201d and that the law was designed to enshrine this idea [50]. Subsequent cases in courts across the country, to Moldaver J, accepted this idea [54].<\/p>\n\n\n\n

Turning to the text, specifically s.7(1) of the Arbitration Act<\/em>, Moldaver J wrote that it established a general rule: \u201cwhere a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement\u2026.the court \u201cshall,\u201d on the motion of another party to the agreement, stay the court proceeding in favour of arbitration\u201d [63]. This is, obviously, a mandatory statutory rule. Wellman, though, argued that s.7(5) excerpted above is an \u201cindependent, standalone\u201d exception to s.7(1) [74]. This provision, which permits a \u201cpartial stay\u201d\u2014meaning that the court has a discretion to stay some of the claims for arbitration\u2014is available if certain statutory preconditions are met and if the court exercises its discretion in favour of the stay. Wellman argued that s.7(5) could be read so that the court \u201cmay refuse to stay<\/strong><\/em>\u201d the business customers\u2019 claims. But Moldaver J rejected this proposition, focusing on the text of s.7(5) in its statutory context. The text of s.7(5) says nothing about a court \u201crefusing to grant a stay,\u201d and to him: \u201c\u2026where the legislature intended to authorize the court to refuse a stay, it did so through the words \u2018may refuse to stay\u2019\u201d [73]. Those words did not appear in s.7(5). And, with this text and context in mind, Moldaver J turned to purpose: allowing Wellman\u2019s argument would \u201creduce the degree of certainty and predictability associated with arbitration agreements,\u201d permitting the business customers to escape the effect of a stay [76].<\/p>\n\n\n\n

Wellman also relied on certain policy considerations to support his preferred interpretation of the text [77]. One of these was a general principle of \u201caccess to justice,\u201d which \u201c[removes] barriers to seeking relief in court\u201d [77]. But there were two problems with importing this idea as a decisive principle for the case: (1) a rarefied idea of access to justice should not \u201cbe permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not\u2026the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts\u2026[i]t is not the role of this Court to re-write legislation [79]; and (2) the Ontario regime pursues access to justice by \u201cshielding consumers from potentially harsh results of enforcing arbitration agreements\u2026\u201d by exempting consumers \u201cand only<\/em> consumers\u201d from \u201cotherwise freely negotiated agreements\u201d [80]. This is in conjunction with the Arbitration Act<\/em>\u2019s pursuit of the overall principle that parties should abide by their agreements. Access to justice, as a general idea, should not \u201cbe permitted to overwhelm the other important objectives pursued by the Arbitration Act<\/em>\u2026\u201d [83].<\/p>\n\n\n\n

While I do not have space to recount the minority opinion of Abella and Karakatsanis JJ, I want to note a particularly fiery charge that they chose to level at Moldaver J: \u201cThe majority\u2019s approach, with respect, in effect represents the return of textualism. The words have been permitted to dominate and extinguish the contextual policy objectives of both the Arbitration Act<\/em> and the Class Proceedings Act<\/em> [citations omitted]\u2026\u201d [109]. To the minority, the \u201coverall purpose\u201d of the Arbitration Act<\/em> \u201cwas to promote access to justice\u201d [137].<\/p>\n\n\n\n

Evaluation<\/strong><\/h4>\n\n\n\n

I want to say three things about this case. First, the minority\u2019s charge of \u201ctextualism\u201d against Moldaver J is inaccurate and sloppy; (2) Moldaver J\u2019s approach, while not textualism, represents a defensible \u201ctextually constrained purposivism,\u201d that guards against a court aggrandizing to itself the power to \u201cread-in\u201d language to a statute; (3) both of the opinions show why relying on legislative history is such a fraught enterprise.<\/p>\n\n\n\n

Consider first the minority\u2019s textualism charge. I can only imagine that Abella and Karakatsanis JJ were trying to make a rhetorical point, because I cannot believe that they\u2014learned judges of our Supreme Court\u2014could so misunderstand an entire school of interpretive thought. Textualism is directly opposite to \u201cpurposivism,\u201d which is primarily concerned with the ends<\/em> a statute pursues. To the textualist, purpose is encompassed in the means the statute pursues. It is not concerned with an overall statement of purpose, per se: consider Scalia J\u2019s opinion in MCI<\/a><\/em>and WVUH v Casey<\/a><\/em>,<\/em> and also Judge Easterbrook\u2019s article, \u201cStatutes\u2019 Domains.\u201d<\/a><\/p>\n\n\n\n

But Moldaver J\u2019s opinion does not just focus on means. It considers the ends of the Arbitration Act,<\/em> including the overall \u201cpurpose\u201d of respecting the agreement reached by parties in their contracts. Moldaver J\u2019s approach is much more realistic than the minority\u2019s approach, which chooses the \u201caccess to justice\u201d purpose as the \u201coverall purpose\u201d\u2014with no justification other than, apparently, judicial fiat. Moldaver J\u2019s approach recognizes that there are other purposes of the statute at play. This is not textualism.<\/p>\n\n\n\n

That said, Moldaver J\u2019s approach does recognize that purposes do not exist in the abstract. They must be tied to statutory means. What is relevant is not the court\u2019s appreciation of what access to justice means, but what the legislature thinks it means<\/em>, and the words the legislature used to represent that idea. And that legislative instantiation is existent in the Arbitration Act <\/em>and Consumer Protection Act, <\/em>working in pari materia<\/em>. As Moldaver J noted, the Ontario regime is focused on permitting access to justice for \u201cconsumers,\u201d by allowing them to pursue claims in court. When we are talking about business customers, though, the legislation does not speak in abstract terms about access to justice writ large<\/em>\u2013the Arbitration Act<\/em> has defined means to grant a partial stay, not means to refuse<\/em> to grant a stay. It pursues the goal with limited means, in conjunction with other fairly discernible statutory purposes. Abella and Karakatsanis JJ\u2014poets, apparently\u2014say that \u201ca provision must be assessed in all its textures \u2014 language, purpose, effect \u2014 to prevent the suffocation of its meaning by a technical literal reading of the words\u201d [130]. But here, poetry suffocated prose, because the language of the statute works in symbiosis with purpose. Purpose does not override text. And in this respect, to my knowledge, it is not hornbook law that the Canadian approach is \u201cintentionalist,\u201d as Abella and Karakatsanis JJ say [107], understood in the sense that intentions should override text. Intentionalism would mean taking a psychologist\u2019s armchair and determining what a legislator meant to say<\/em>; not what was said.<\/p>\n\n\n\n

This makes sense from a democratic perspective. Legislators, in their heads, may think of purposes when they enact laws. These purposes may range from \u201cthe public good,\u201d on one hand, to minute, technical considerations on the other. Because a court cannot discern which purpose ended up becoming law, we have to think about what the best evidence of the law could be in the circumstances. Usually, text is that best evidence. While it is not always definitive and clear\u2014because language is not always definitive and clear\u2014it is better than unexpressed intentions or abstract, tangential purposes.<\/p>\n\n\n\n

I want to raise a final note about the use of legislative history. Both sides of the case relied on different aspects of the legislative history to support their particular interpretation. Because various statements existing in the legislative history are not ranked by importance, it is difficult for any court or observer to put more or less weight on various statements. So, like Judge Leventhal once said, legislative history is like looking over a crowd and picking out your friends<\/a>. A judge predisposed to one interpretation will use legislative history to support his own view of the matter. If we are going to allow legislative history to be a valid part of statutory interpretation, it should only be relied on with severe caution, as an afterthought, and with the idea that its probative value is exceedingly low.<\/p>\n\n\n\n

Notwithstanding the quibble about legislative history, Moldaver J\u2019s opinion is worthy of note because it finally recognizes that judges, under the guise of judicially divined \u201cpurposes,\u201d cannot override a contextual interpretation of the text. The text is what the legislature enacted. It should govern.<\/p>\n\n\n\n

<\/p>\n\n\n\n

\n\n*This post originally appeared on Double Aspect<\/a>*\n\n<\/p>\n","protected":false},"excerpt":{"rendered":"

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