Possessives

Introduction

There has traditionally been a reluctance in English legal drafting to use the 's possessive¹ (e.g. "the Minister's"); instead, it has mainly used the of possessive (e.g. "of the Minister"). However, the 's form may often be preferable, from the point of view of readability and ease of use of the text: besides being shorter, it is what one would often use over the of form in everyday English. (The 's form is not at all slang or substandard English. It has been in the language for hundreds of years, surviving from the time when English nouns had case endings, like Latin.)²

Recommendation

Drafters should not be reluctant to use the 's possessive when possible. They should also not be reluctant to use possessive pronouns ("its," "his or her," "their" — see the article Gender-neutral Language) when possible too. Whether one of these forms is possible in a given case is best left to the judgement of a native English speaker, and drafters should rely on their linguistic intuitions. For example, "the arrest of the suspect" can be redrafted as "the suspect's arrest," but "member of Parliament" cannot be redrafted as "Parliament's member."

In addition to the general considerations of readability noted above, the's possessive may be a marked improvement over the of possessive in particular cases. Some examples are discussed below.

Examples of 's preferable to of

1. To avoid ambiguity

For greater certainty, a representative of a candidate who is present at a polling station is not an election officer.

Canada Elections Act, s. 22(2)

Recommended:

For greater certainty, a candidate's representative who is present at a polling station is not an election officer.³

2. To break up a string of "ofs"

"appropriate provincial minister", in relation to a provincial institution, means the minister of the Crown of the province of incorporation of the institution responsible for the supervision of the provincial institution;

Canada Deposit Insurance Corporation Act, s. 2

Recommended:

"appropriate provincial minister", in relation to a provincial institution, means the minister of the Crown of the institution's province of incorporation who is responsible for the institution's supervision;

3. To avoid breaking up elements that go together

No action may be taken against the Corporation in respect of the obligation of the Corporation to make a payment in relation to a deposit held by a member institution that is being wound up unless the action is commenced within ten years after the date of the commencement of the winding-up.

Canada Deposit Insurance Corporation Act, s. 14(6)

"To make a payment" relates to "obligation," and so the provision reads slightly more naturally with these elements not separated by "of the Corporation."

Recommended:

No action may be taken against the Corporation in respect of the Corporation's obligation to make a payment in relation to a deposit held by a member institution that is being wound up…

4. To put the thing possessed in final position

There is a general tendency in English for "new information" introduced in a sentence to be placed at the end. Therefore, a sentence may read somewhat more naturally with the's possessive if the new information is the thing possessed, rather than the possessor.

The Commissioner is the chief executive officer of the Agency and is responsible for the day-to-day management and direction of the Agency.

Canada Customs and Revenue Agency Act, s. 36

In this provision "the Agency" is mentioned twice, and so by the second mention it is "old information" (also called "given information"); "day-to-day management and direction" is the new information, and so the sentence may read more naturally with that in final position:

Recommended:

The Commissioner is the chief executive officer of the Agency and is responsible for the Agency's day-to-day management and direction.

(Compare:

No person, other than an official agent of a candidate, shall accept contributions to the candidate's electoral campaign. Canada Elections Act, s. 438(2))

Conversely, if it is the possessor that is new information and the thing possessed is old information instead, the of possessive may read better, as in "…necessary for aviation safety or the safety of the public" (Aeronautics Act, s. 4.91(2)), which would be a bit awkward if it were redrafted as "…necessary for aviation safety or the public's safety."

(Old information does not necessarily have to be mentioned in the sentence in question itself; it needs only to have been previously mentioned in the discourse.)

Possessive pronouns — "its," "his or her," "their"

The recommended version of s. 36 of the Canada Customs and Revenue Agency Act, above, could also have used the pronoun "its" in place of "the Agency's." This is not unusual, since this mention of "the Agency" is old information, as noted above, and pronouns by their very nature usually represent old information.

The Commissioner is the chief executive officer of the Agency and is responsible for its day-to-day management and direction.

(Compare:

…the conduct of the work of the Tribunal and the management of its internal affairs.

Aeronautics Act, s. 30(1)(b))

Use of 's form with inanimate nouns

One question that frequently comes up is whether the 's form can be used with inanimate nouns, or with collective nouns (e.g. "committee," "board," "partnership"). It can indeed, although it depends somewhat on the particular case.

As noted previously, there is no substitute for the judgement of a native English speaker as to whether a form is acceptable in a particular case or not, and drafters should use their linguistic intuitions. Thus, "in the absence of the Board" can be redrafted as "in the Board's absence"; however, it would be unnatural to redraft "in the absence of fraud" as "in fraud's absence."

Source:

R. Quirk et al., A Comprehensive Grammar of the English Language (Longman: Harlow, England, 1985)

This article is based on ELLCDN 2003-01.

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