Please read Part I of this series before reading this post.
In the first post of this series, I set out to explain the concept of pragmatism in statutory interpretation, as explained by Ruth Sullivan. My contention was that Rizzo, arguably Canada’s seminal statutory interpretation judgment, is a pragmatic judgment. Relatedly, I argued. that a purely pragmatic approach to statutory interpretation, while providing interpreters with maximum flexibility, also fails in two potential ways: (1) it permits judges to assign weights to interpretive tools that may run counter to the point of statutory intepretation: to discern what this particular text means; and (2) it could lead to methodological unpredicability–a problem that I will outline in Part III of this series.
In this post, I will address why Rizzo is a fundamentally pragmatic judgment. It is pragmatic because it leaves open the possibility, particularly in the use of purpose, for text to be supplanted if other interpretive tools point in another direction. In other words, it does not make a claim that some interpretive tools are more appropriate than others in the abstract. In the pragmatic approach, it is up to the judge to assign the weights; rather than the methodological doctrine guiding this selection, the judges themselves have unbridled discretion to mould statutory interpretation methods to the case in front of them, based on factual contexts, contemporary values, or otherwise. As I will note in Part III, this sounds good in theory—but in practice is less than desirable.
Rizzo was a garden-variety statutory interpretation case, and I need not go deep into the facts to show what is at stake. Basically, the key question was whether employees of a now-bankrupt company could claim termination and severance payments after bankruptcy [1]. The key problem was whether the relevant legislation permitted the benefits to accrue to the employees, even though their employment was terminated by bankruptcy rather than by normal means. The relevant provisions of the Bankruptcy Act and the Employment Standards Act, on a plain reading, seemed to prevent the employees from claiming these benefits if their employment was terminated by way of bankruptcy [23].
The Supreme Court chastised the Court of Appeal for falling into this plain meaning trap. To the Supreme Court, the Court of Appeal “…did not pay attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized” [23]. The Supreme Court endorsed this now-famous passage as the proper method of interpretation in Canada:
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Using this approach, the Court reasoned that the provisions in questions needed to be interpreted with their objects in mind—specifically, the relevant provisions were designed to “protect employees” [25]. For example, section 40 of the Employment Standards Act, one of the provisions in question, “requires employers to give their employees reasonable notice of termination based upon length of service” [25]. Such a notice period (with termination pay where the employer does not adhere to the notice period), is designed to “provide employees with an opportunity to take preparatory measures and seek alternative employment” [25]. Ditto for the provisions governing severance pay [26].
The Court also relied on a number of other interpretive factors to reach the conclusion that the severance and termination pay provisions governed even in cases of bankruptcy. Two are important here. First, the Court relied on the absurdity canon: where possible, interpretations of statutes that lead to “absurd results” should be avoided. Particularly, the Court, endorsing Sullivan, notes that “…a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile…” [27]. In this case, the fact that an employee could be terminated a day before the bankruptcy—and receive benefits—and another employee could be terminated after bankruptcy—and not receive benefits—was an absurdity that ran counter to the purpose of the statute to provide a cushion for terminated employees [30]. The Court also focused on legislative history, which it acknowledged can play a “limited role in the interpretation of legislation” [35].
All of this to say, Rizzo is, to my mind, a pragmatic judgment for statutory interpretation. This is because, when it endorses the classic Driedger formula at paragraph 21, it does not venture further to show which of the interpretive tools it relies on are to be given the most weight in interpretation; and accordingly, Rizzo could lead to courts assigning weights to interpretive tools that could distort the process of interpretation. For example, the Rizzo Court does not say—as later Supreme Court cases do—that purpose cannot supplant text in interpretation (Placer Dome, at para 23). In other words, when courts source purpose, text is given more weight in interpretation because it is the anchor for purpose (see, for example, the Court’s analysis in Telus v Wellman, at paras 79, 82-83). This can be seen as the Court saying that text is assigned the most weight in interpretation, and that purpose is parasitic on text. When sourced in this way, then, there is no reason to assume that there will ever be a conflict between purpose and text, because purpose is merely one way to understand text. But Rizzo does not say this, instead suggesting that in some cases, purpose can supplant text.
This is the product of pragmatism. Taken on its own, Rizzo’s endorsement of Driedger permits “…each judge [to take advantage] of the full range of interpretive resources available….and deploys those resources appropriately given the particularities of the case” (see here). The possibility for highly abstract purposes to, in appropriate cases, subvert text is a function of the failure of Rizzo to assign clear weights to the interpretive tools in a way that reflects Canada’s fundamental constitutional principles, including the task of courts to discover what the text of statutes mean. I should note, though, that this is not a bug of pragmatism to its adherents; rather, it is a feature. The pragmatists conclude that text should have no special role in interpretation if other factors push against giving effect to text. As I will point out in my next post, this liberates judges to an unacceptable extent when measured in relation to the basic task of interpretation.
Double Aspect 
Mark,
This analysis makes some assumptions that the Court also makes that I think need to be made explicit. One of them is that “text”, “context” and “purpose” can be understood as separate “tools” that a person uses to interpret a law. The other is that it makes sense to talk about their relative “weight.” A third is that “plain meaning” is the same thing as what you get from an analysis of text – and is therefore different from context or purpose. A fourth is that the concept of “discretion” is relevant to interpretation.
I don’t think any of this makes sense. It is just not possible for a person to understand an utterance without ascribing a context and a purpose to the person asserting it. In order to come to the conclusion that the plain meaning of the Ontario ESA was to create an offence for a solvent corporation that could not possibly be committed unintentionally by an insolvent corporation, the Ontario Court of Appeal had to make all kinds of non-obvious assumptions about the distinction between public offences and private causes of action, corporate personality, employment relationships and so on. Only in a particular legal culture at a particular time could the issue in Rizzo even make sense. Similarly, judges would never be able to interpret statutes without assuming they are attempts by elected governments and legislatures to bring about favoured policy results through changing the law. When someone comes to a pre-reflective conclusion that the meaning of a provision is “plain”, it isn’t because they didn’t take into account context and purpose, it is because they think the context and purpose is obvious.
In linguistics, the way this would be said is that every utterance has a syntax, a semantics and a pragmatics. Legal texts have the general pragmatics of being pronounced by a person or body with legal authority to change legal duties, rights, powers and immunities in some fashion. Legislation has to be understood against the backdrop of authority to change the law to further policy goals that are subject to review by the electorate. The tool analogy is flawed because it suggests something we can pick up or not depending on our pre-existing goal. That maybe makes sense for *arguments* that focus on text, context or purpose from the perspective of an advocate who has a pre-existing goal of winning the case, such that the arguments are tools for that purpose. And arguments can be better or worse and therefore have more or less weight. But it doesn’t really make sense to think of text, context or purpose themselves as tools or having weight, since they enter into every interpretation, even if it is done pre-reflectively.
Where I think I agree with you is that a court cannot legitimately fail to give effect to what the person with the authority to change the legal norm said. They cannot act as if they said something else because that would better fulfill their purpose. They may be particularly tempted to do so by a one-sided statement of the purpose, as by saying that *the* purpose of employment standards statutes is to “protect employees” since that fails to recognize that there are multiple purposes in tension in any piece of legislation, reflecting the fact that these come out of pluralist democratic political processes. The words are an intervention into the pre-existing legal order and they must be given effect by a court that claims to be interpreting them.
Much of this I address in part 3.
Looking forward to it!
To me, the problem with Rizzo is that it exaggerates what statutory *interpretation* can do. If we look at the statute in Rizzo, it quite clearly makes it an offence to terminate an employee without giving them statutory severance. The Supreme Court of Canada implies from this that employees have a claim provable in bankruptcy for the amount of their statutory severance at the time of termination. This implication makes sense, but it is something the Court is doing, rather than the statute. (The statute created the obligation to pay on termination, but it didn’t turn that into a claim provable in bankruptcy.)
Now the question of when statutes create related common law rights is a complicated one, but (a) no one can plausibly argue it is always and everywhere illegitimate without throwing out a huge amount of common law and (b) it is not statutory interpretation. No amount of purpose and intention and so on will tell courts whether to do this, because it is something that the legislature clearly did not think to do.
The cartoon textualist and the Supreme Court of Canada in Rizzo make the same mistake of identifying the statute with the law, when statutory provisions are always and necessarily interventions into an existing legal order, and can never fully constitute it.
On “legal pragmatism”, Susan Haack in a classic article identified 19 different formulations, in addition to the philosophical and ordinary meanings: https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1470&=&context=fac_articles&=&sei-redir=1&referer=https%253A%252F%252Fscholar.google.ca%252Fscholar%253Fhl%253Den%2526as_sdt%253D0%25252C5%2526q%253D%252522legal%252Bpragmatism%252522%2526btnG%253D#search=%22legal%20pragmatism%22.
I am curious what you are against. What is “Pure Pragmatism in Statutory Interpretation.” I take it you aren’t taking a view of “representationalist metaphysics “or “foundationalist epistemology”, but what then is the enemy?
Would you accept the enemy as lawyers, judges or law professors who think it is ok not to give effect to what the legislature said in a non-constitutional case (or not to give effect to what the contractual parties said in a non-unconscionability case, etc). I think we could oppose this enemy together without denying that “what the legislature said” always involves context and purpose. What is never authorized is rewriting the statute or contract because a rewritten version would better fulfill the legislature or parties’ purposes.
Hi Gareth,
I will try to answer your point(s), but to be frank I think I may be missing your overall argument, so bear with me.
I think part of my confusion stems from the fact that we actually aren’t disagreeing. You say the following:
“I think we could oppose this enemy together without denying that “what the legislature said” always involves context and purpose.”
I agree!
I don’t mean to say anywhere that purpose and context shouldn’t be a part of interpretation. We know that, as a matter of positive law, the Supreme Court says that we must always look to purpose. And I think from the perspective of first principles, that makes sense. So nothing I’ve written has ever intimated that purpose is not a legitimate tool. And nothing I’ve ever written has advocated for an approach which focuses solely on the plain meaning of words. In fact, I addressed this point in my first post.
So, the question then is how we use text, context, and purpose. We know they must always be used, but how? Here is where pragmatism comes in. As you point out, pragmatism can mean many things. But as I noted in my first post, I am using the definition of pragmatism set out by Ruth Sullivan in her famous article on statutory interpretation in the Supreme Court of Canada, rather than a definition that comes from some other (American) source. For Sullivan, pragmatism means that interpreters can use different tools of interpretation at different times, assigning different weights to them as the case may have it. I use the word “tools” here because I think it makes sense, though you don’t agree. Anyways, for the pragmatist, sometimes purpose can basically re-write the text (see Egger). Other times, leaving the realm of text, legislative history will be probative and will tell the interpretive tale more than text can.
My only point so far is that Rizzo is a pragmatic judgment in that it does not expressly assign weights to any of the various tools that interpreters can use to determine what a text means. I will address my normative argument–that a purely pragmatic approach is undesirable–in my 3rd post, where I also hope to clarify that purpose, used properly, is always a legitimate tool to understand text.
Hi Mark,
Thanks for your response. I am intending my comments very much in the spirit of friendly amendments based on what I think are common objectives. I worry that some of the language you are using could let you fall into traps that (what I take to be) our mutual opponents could set. That may be premature, because I know you have another post coming, but I am also thinking out loud to try to develop my own sense of the issue.
The reason I think we are on the same side is that I am dead set against the idea that purpose – or legislative history – can ever legitimate overriding the text. The only way a judge can legitimately override the text is to claim an authority that the text makers don’t have. In the public law context, that necessarily means claiming that the statute is unconstitutional. If the statute is constitutional, then, under our system, the judges have to follow it. If someone is asking them not to follow it, then that person has to claim it is unconstitutional. What is excluded by our system is judicial overriding of a constitutional statute. That implies a normative constraint on the activity of statutory interpretation, namely that it is not a legitimate move to rewrite the text on the grounds that the rewritten text would better fulfill the statutory purpose. That move is illegitimate because it is within the constitutional prerogative of the legislature to ineffectively pursue its purposes.
Your project seems to me to be about calling out instances where this normative constraint is violated and I am a fan.
The reason I don’t like calling this anti-pragmatism is that I think of myself as a pragmatist, in the sense that legal semantics (what legal propositions mean) are ultimately rooted in legal pragmatics (what do the practices of adjudication, legislation, contract-making and so on do). The reason a judge ought not to overrule a legislative decision under the guise of interpreting it is that doing so undermines the social functions we expect legislation and adjudication to play. (I suppose there is also just the general principle that you shouldn’t pretend to do one thing when you are really doing another, unless you are explicitly acting for the entertainment of consenting adults.) The other reason is that legal pragmatism is strongly associated with Richard Posner, and while I know he has said all kinds of outrageous things, I appreciate that he is immensely learned and intellectually inventive and generally likes to say what he actually thinks while in fact being a pretty responsible judge.
But no true pragmatist gets caught up in arguing about words, so I will try not to bring shame to my tribe and instead just suggest there are some traps lurking in talking about “weight” or hoping to have an ex ante formula for weight. Lewis Carroll addressed this problem in his dialogue on Achilles and the Tortoise. The problem is that when you are applying a rule at some point you have to talk about how to apply it and just do it. And when the rule is stated in language, then you always have to use text, context and purpose. In a legal case, you apply a general rule stated by a legislature in words to a dispute about who has legal rights or duties in a particular factual situation. It is just in the nature of things that at some point you have to quit talking and just choose. While every case involves text, context and purpose, in some cases one of those will be more salient because there is a reasonable dispute about it. So I am skeptical you could ever find a formula ahead of time. I think the issue between people who think like Scalia as opposed to Breyer or like Brown as opposed to Abella is not about how they weigh text, context or purpose, but what presuppositions they bring to what those are.