Nov 25, 2019
When is a Structure Not A “Structure”? The Modern Approach to Statutory Interpretation
When Courts interpret statutes, they consider the “ordinary meaning” of the words used in the legislation. “Ordinary meaning” refers to the reader’s initial impression of the language, the meaning that surfaces immediately.
That being said, the modern approach to statutory interpretation invites considerations well beyond the plain and ordinary meaning of words. Under the “contextual and purposive” method, Canadian Courts consider the context in which the legislation operates, Parliament’s intention in enacting the statute, the object of the Act, and its history.
A recent decision of the Ontario Court of Appeal, Oakville (Town) v. Clublink Corp., ULC, 2019 ONCA 826, affirms the role that the “plain and ordinary meaning” of statutory language plays in its interpretation.
Clublink establishes that textual literalism, i.e. an analysis of the ordinary meaning of an Act’s words, is only one aspect of the broader exercise of contextual interpretation.
Is a Golf Course a Structure?
Clublink largely involved the meaning of the word “structure” as used in the Ontario Heritage Act, R.S.O. 1990, c.O-18 (the “OHA”).
The respondents were the owners (the “Owners”) of a large golf course in Oakville. In 2015, they proposed to develop the course into a residential and mixed-used community. The Township rejected the Owners’ development application and ultimately passed a by-law designating the course as a cultural heritage property under section 29 of the OHA.
The Owners then brought an application under section 34 of the OHA which provides that no owner shall “demolish or remove a building or structure on the property” unless the owner applies to the municipal council and receives consent for the demolition or removal.
Under section 34, if the municipal council declines to grant its consent to the demolition, the property owner can then apply to the Local Planning Appeal Tribunal (“LPAT”), which has the final say on the application.
The Township argued that the Owners mistakenly brought their application under section 34 of the OHA. It claimed that section 33 of the OHA applied instead.
Section 33 provides that no owner “shall alter the property or permit the alteration of the property if the alteration is likely to affect the property’s heritage attributes”. Critically, unlike section 34 which provides for a further application to the LPAT, Section 33 provides the owner with an appeal of the municipal council’s decision to the Conservation Review Board (the “CRB”), which can only make non-binding recommendations to council.
The debate about whether the Owners ought to have brought their application for an alteration or demolition to the golf course under Section 33 or 34 turned largely on whether the golf course was considered a “structure” within the meaning of Section 34.
In the end, the dissenting judgment of the Court of Appeal concluded that a golf course would not come to the mind of an “ordinary person” when considering the plain meaning of the word “structure”. Even if a golf course involved significant quantities of earth, trees and cables, it could not be described as a “structure”. In the dissenting judgment’s view, “[n]one of these realities changes what a person sees when they visit a golf course and that is land”.
The dissent would have held that Section 34 had no application to this case. Section 33 would have applied, with the municipal council having the final word on the application to alter the property.
The majority of the Court of Appeal disagreed.
Why “Ordinary Meaning” is One Aspect of Statutory Interpretation
In reaching the conclusion that, under a contextual and purposive approach to the OHA, the golf course could be considered a “structure” under Section 34, the majority of the Court of Appeal held that while the “ordinary meaning” of words in a statute has a role to play in its interpretation, that meaning is “not determinative”.
The “ordinary meaning” is “only one aspect” of the modern approach to statutory interpretation.
In the majority’s view, words in an Act which at first glance appear clear and unambiguous may become more vague when considered in context. Moreover, textual interpretations of legislation have their limits. If a word in a statute has more than one “ordinary meaning” in common usage, problems arise. In such cases, Courts have no choice but to consider these words in the broader context of the statute as a whole. Common usage leads the Court to a dead end, requiring recourse to other avenues.
Accordingly, while the majority in Clublink does not abandon textual literalism per se, it recognizes that the “ordinary meaning” of words is one factor the Court should consider. The modern approach requires that the “words of a statute must be read in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.
In other words, alongside a consideration of textual meaning, the Court considers:
- the purpose and object of the Act;
- the Act’s legislative history; and
- the scheme of the Act itself and the words at issue in the context of the Act as a whole.
In this case, the broader context of the OHA led to the majority’s conclusion that a golf course could amount to a “structure” under Section 34.
The majority considered that:
- the purpose of the OHA is to balance the broad powers of municipal councils to designate properties of cultural heritage against the procedural protections for property owners who seek to make changes to their property;
- the Legislative history of the OHA indicated an evolution from a “building-centric” approach to heritage preservation in the 1970s to a broader approach in the early 2000s. The broader approach to heritage conservation added procedural protections for property owners who wanted to challenge the denial of their rights to modify their properties;
- Section 34 of the OHA, which provides a property owner with a right to appeal to LPAT, had to be read broadly; and
- The term “structure” as used in Section 34 had a “mutable” meaning.The word had to be understood in the context of the evolution of the OHA away from a “building-centric” approach. “Structure” could accordingly capture entities consisting mostly, if not entirely, of land.
The Court therefore concluded that the golf course was a “structure” on designated property within the meaning of Section 34.
The Death of Textual Literalism?
Clublink does not signal the death of the “plain and ordinary meaning” approach to statutory interpretation. Textual literalism still very much has a role to play.
The point of Clublink is that the ordinary meaning of words cannot be given primacy in the statutory interpretation exercise. Words in a statute must also be considered within the context of the Act as a whole—including its purpose, history and structure.
The modern approach addresses the problem of not seeing the forest for the trees. A focus on words and language is critical, but the overall scheme of the Act cannot be overlooked.