Published Case Law
2004-03-26 Supreme Court overturns B.C. divorce ruling (Hartshorne Vs
Hartshorne)
2003-Spring The Supreme
Court of Canada: An Agreement is Likely A Final Agreement - Spousal Support
Releases & The Miglin Decision
2003-04-07
Miglin v. Miglin, [2003]
2003-Spring The Supreme
Court of Canada: An Agreement is Likely A Final Agreement - Spousal Support
Releases & The Miglin Decision
1998-07-02 Hildinger v. Carroll
Bjornson VS. Creighton Mobility
CLE produces a handbook, something like "Practice Before the
Registrar", which is helpful for appearing before the Registrar (of
the Supreme Court) eg, Assessing Costs, Settling Orders,
Shall means "Shall" in 16.10
It is sad and a miscarriage of justice that "shall" is not properly interpreted
by the courts at all levels. The Supreme Court of Canada offered up the
following in interpreting "shall" in
Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at pp.736-7, 742:
"...For present purposes, it seems clear that
the bilingual record-keeping and the printing and publication requirements of s.
23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are
mandatory in the sense that they were meant to be obeyed. Section 23 of the
Manitoba Act, 1870, provides that both English and French "shall be used in the
... Records and Journals" of the Manitoba Legislature. It further provides that
"[t] he Acts of the Legislature shall be printed and published in both those
languages". Section 133 of the Constitution Act, 1867, is strikingly similar. It
provides that both English and French "shall be used in the respective Records
and Journals" of Parliament and the Legislature of Quebec. It also provides that
"[t] he Acts of the Parliament of Canada and the Legislature of Quebec shall be
printed and published in both those Languages".
As used in its normal grammatical sense, the word "shall" is presumptively
imperative. See Odgers' Construction of Deeds and Statutes (5th ed. 1967) at p.
377; The Interpretation Act, 1867 (Can.), 31 Vict., c. 1, s. 6(3);
Interpretation Act, R.S.C. 1970, c. I-23, s. 28 ("shall is to be construed as
imperative"). It is therefore incumbent upon this Court to conclude that
Parliament, when it used the word "shall" in s. 23 of the Manitoba Act, 1870 and
s. 133 of the Constitution Act, 1867, intended that those sections be construed
as mandatory or imperative, in the sense that they must be obeyed, unless such
an interpretation of the word "shall" would be utterly inconsistent with the
context in which it has been used and would render the sections irrational or
meaningless. See, e.g. Re Public Finance Corp. and Edwards Garage Ltd. (1957),
22 W.W.R. 312, p. 317 (Alta. S.C.)
.....
...the legislation is clear, and speaks of "shall be used" and "shall be
printed". There is nothing of a directory nature in that language. Furthermore,
entrenched linguistic rights are by nature mandatory and never directory. If
they were directory only, the risk is that they would never be enjoyed or be of
any use to those to whom they were addressed. If it were merely directory it
would fly in the face of entrenchment, which, but by its very nature, is
mandatory. The authorities submitted by counsel on the mandatory or directory
nature of legislation has [sic] no application to entrenched rights. Violence to
the constitution cannot be tolerated...."
Unpublished Case Law:
All judgments are public documents. If you have a judgment
that has has not been published please share it with us.
Judges need to be held accountable to ALL of their judgments, not
just the ones they choose to publish. At your request we can
blank out names of the parties involved.
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