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Does a statute apply?

Finding legislation

Early on in your research you will want to determine whether any statutory provisions apply.

  • Consider whether an applicable statute would be federal or provincial, and review a subject index for the statutes (if there is one) or the titles of the statutes to determine whether any statutory provisions apply.
  • A computer search of the text of the federal or provincial statutes can be useful at this stage.
  • Your secondary source research will often alert you to a relevant statute.
  • You may discover, while reviewing relevant case law, reference to statutory provisions.
  • Don’t forget to consider statutes containing miscellaneous provisions, such as the Law and Equity Act and the Property Law Act.

If you find that a statute does apply, review the statute and find the relevant sections.

Consider whether there are regulations under the statute that also apply. Ensure that you are dealing with the version of the statute that applies to your problem.

Updating and judicial consideration

Check for all amendments to the statute and regulations up to the relevant date, and look for judicial consideration of relevant statutory provisions. This task can be expedited if you find a consolidated or annotated version of the statute.

  • Most legislation is electronically published in consolidated form. Check to see how current the consolidation is.
  • CCH publishes a number of looseleaf services in which all statutes relating to a particular area of law, together with applicable regulations, are published in consolidated form. Some of these publications also contain commentary.
  • Canada Law Book publishes annotated versions of several statutes. Titles for British Columbia include the Law and Equity Act, the Legal Professions Act, the Occupiers Liability Act, the Society Act, the Business Corporations Act, the Local Government Act and Community Charter, the Motor Vehicle Act, the Strata Property Act, the Human Rights Code, and the Court Order Enforcement Act.

If you cannot find judicial consideration of the current version of the statute, use the legislative history of the section to determine how it is cited in earlier versions of the statute, and check for judicial consideration of the earlier versions.

Apply the principles of statutory interpretation, and always consider whether the federal or provincial Interpretation Act applies.

Other sources of legislative intention

You may need to obtain discussion papers or reports prepared before the legislation was introduced to assist you in understanding the policy background of the legislation.

The reports of law reform commissions are an excellent research source.

Some law reform commissions have made their reports available on the Internet. The British Columbia Law Institute maintains an electronic database of law reform commission reports from various jurisdictions, and publishes its own reports on the Internet. In addition, the reports of the Uniform Law Conference of Canada will help you understand the basis for statutory provisions that arose out of the Conference’s recommendations.

Government studies, discussion papers, and reports will often assist you in understanding the policy background of legislation. In addition to library catalogue searches and enquiries of government departments, there are several custom search pages for finding Canadian government information. The Canadian Research Index, available through ProQuest, is also a useful source of government information.

Proposed federal regulations, and some provincial regulatory initiatives, are published by the government in the Gazette with a regulatory impact statement. These statements should be reviewed to assist with interpretation of the regulation.

Treaties

Consider whether any treaties apply to your research problem. Often you can determine whether there is an applicable treaty by looking for implementing legislation, or by reviewing current secondary sources on your topic. Canada Treaty Information lists treaties to which Canada is a signatory, and provides subject and keyword access to the database. Some entries contain a link to the text of the treaty. Another useful treaty research tool is the International Treaties Collection.

There will often be a published report on the treaty setting out the text of the treaty and the positions of the various participants as the treaty was negotiated. This can be a valuable interpretive tool. There is usually also considerable periodical literature dealing with treaties. A free online source for some of this material is the International Law Library.

References

Best, Statutory Research.

Cote, The Interpretation of Legislation in Canada (Cowansville: Y. Blais, 2000).

Gifford et al, How to Understand Statutes & By-Laws (Toronto: Carswell, 1996).

Law Reform Resources.

Sullivan on the Construction of Statutes, 5th ed. (Toronto: LexisNexis Canada, 2008).