CHAPTER 4
INTERPRETING THE ACT AND THE REGULATIONS
The primary role of a Board of Referees is unquestionably that of a trier of fact: the board must make findings on questions of material fact ( s. 114(3) of the Act). However, like every tribunal, the board must apply statutes and regulations and occasionally interpret them. The error in law contemplated in s. 115(2)(b) of the Act can be an error in applying the law, but can also be an error in interpreting it. In fact, the Federal Court of Appeal and Umpires frequently must determine whether the board properly or improperly interpreted a statute, regulation or collective agreement. The Board of Referees' interpretation has often been in issue.565 The Federal Court of Appeal has held that the board did not err in its interpretation but that the "Umpire erred in law in his interpretation of the relevant legislation."566 In another case, an Umpire held that the Board of Referees did not interpret s. 10(2) of the Act correctly.567 The board may have to interpret ambiguous or difficult texts,568 or enactments containing differences between the English and French versions.569
The leading rule of statutory interpretation is that if the meaning of a law is plain, there is no room for interpretation.570 In such cases, the tribunal need only apply the law. But the problem lies in determining whether a law really is clear, or whether it is ambiguous enough for there to be room for interpretation. This is not a simple matter. For example, in the famous Hills case, Lamer J. held in dissent that the term "financing" in s. 44(2)(a) of the Act (now s. 36(4)) was clear, but the majority of the Supreme Court devoted several pages to its interpretation.571 Interpretation is only triggered if the wording is ambiguous.
It is possible for the Board of Referees and the Federal Court of Appeal to consider a provision clear and unequivocal but for an Umpire to find the same provision ambiguous, and interpret it, thereby prompting the Court of Appeal to hold that "the Umpire erred in law in his interpretation of the relevant legislation."572 The error was to consider the law ambiguous.
A provision is clear if its meaning and scope are clear from a mere reading of it. A law may be found not to be clear if the parties do not agree on its meaning and the tribunal finds that the disagreement is based on an ambiguity. But a decision as to whether a provision is clear should not be made in the abstract or based on a consultation of a dictionary to see whether the word or phrase has an easily definable meaning. According to the Court of Appeal:
It must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity . . . It means only that the elementary rule must be observed . . . .573
The case involved the meaning of the phrase "gaol, penitentiary or other similar institution". The majority of the Court held it should be interpreted in such a manner as to include a farm where a person released from a correctional institution resided under a temporary absence permit. The dissenting judge held that the expression was in no way ambiguous.
The purpose of interpretation, as understood and discussed below, is to ascribe a meaning to an ambiguously worded enactment. It should be borne in mind that the term "interpretation" is sometimes used in a broader sense to mean the process by which the glossator ascertains the meaning and scope of rules expressed in an enactment - even if that enactment is clear. Once this is done, the rule must be applied to facts so that consequences may result. This illustrates the close relationship between interpretation and application.
The goal of interpretation is to determine the legislator's intent, i.e., what the legislator wanted and continues to want. Every enactment is supposed to have one true meaning, and that is the meaning the court will ascribe. If the meaning of the enactment is clear, it will be easy to ascertain the legislator's intent. If it is not, one must refer to rules of interpretation established by the legislator or by courts or tribunals. Some provisions of our Act have admittedly presented considerable problems of interpretation.574
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