The Law of Massive, Dangerous Erections

This post is what you call “an attention getter.” It will raise eyebrows, but I promise its content is completely family – unless you let your imagination get away from you. No pharmaceutical products are being promoted by this post in any way.

I do apologize to e-mail subscribers of Slaw because their spam filters probably will catch this, if they’re doing their job.

To proceed…

Drafters of legislation can have rather dull jobs at times. At least that’s what my statutory interpretation professor, Randal Graham, claims. He is probably the foremost authority in the field and also drafts statutes on occasion, so I have reason to believe him.

As proof, he points to the following provisions of the Municipal Act, R.S.B.C. 1979, c. 290,

Removal of dangerous erections

936. (1) The council may declare a… erection of any kind… and may direct and order that it be removed… or otherwise dealt with…

(5) This section applies to any… erection of any kind which the council believes is so dilapidated or unclean as to be offensive to the community.

Okay, so you might think I’m just reading that interpretation in there for effect, sort of like those alleged Disney effects that I won’t link to.

This piece of legislation was actually litigated before the Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342. The court considered whether a pile of dirt could be removed by order of the council if it fit the definition under the Act.

Supreme Court Justices have a sense of humour too, because Major J. commented in that decision,

24 The fact that s. 936 empowers municipalities to declare only two classes of thing to be a nuisance does not foreclose the possibility that a pile of soil may fall within one of those categories. It is clear that a pile of soil does not fall within any of the water-related items constituting the second class. However, does a pile of soil fall within the first class of constructed or erected things? Specifically, does it fall within the phrase “building, structure or erection of any kind”? I conclude that it does. A pile of soil does not materialize on its own. It must at least be erected presumably by piling or dumping. As well, a pile of soil clearly may be a “hazardous erection” within the wording of s. 936’s heading, either in the sense of reducing air quality through dust pollution, or by posing a serious risk to curious children.

These things do not happen by accident people, especially when the entire purpose of the case is the choice of words or punctuation under ejusdem generis.

Sometimes these verbal curiosities occur by no interference of the court at all. The court has no control over which parties petitions them for litigation.

Consider, for example, the recent Ontario case of Mammoth Erection v. Vann Niagara Ltd., [2007] O.J. No. 2153, 64 C.L.R. (3d) 104, 157 A.C.W.S. (3d) 940 (Ont. S.C.J.). The Plaintiff was hired by the Defendant for an erection, but failed to perform payment on the third installment.

One of the initial defences raised was that the wrong party had been named, which thankfully for our purposes here today, was dropped.

The court ruled that the plaintiff waited too long to get a lien, but they claimed that the defendant was very demanding and it required more work than anticipated. They ruled in their favour of the plaintiff, awarding damages after deductions were removed.

But the best part is the type of business that the plaintiff was involved in. You will have to see their site to unravel that mystery. Although it greets you with “Welcome to Mammoth Erection On-Line,” and their motto is “No Job Too Small or Tall,” the disclaimer at the outset still stands massively tall. Promise.

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Comments

  1. John:

    This article erected within me as-yet unknown height of legal education. I’m sorry for my fellow-BC solicitor-types who would allow counsel to declare an erection. I thought only the GG could do that.

    I’m thinking you were snowed in somewhere in Eastern Canada quiet Sunday … bored … did a search for … well, never mind.

  2. It’s cases like these that make me think that drafters of legislation get a little too close to the subject matter, and fail to take a step back to appreciate the unintended amusing semantic double entendres.

  3. Oh, Omar…. *shakes head*.

  4. Omar *shakes head* right back at Lawrence, who first exposed the massive erection to him.

  5. Perhaps to illustrate the original point better, I present the follwing provisions for ss. 180-182 of the Canada Shipping Act, R.S.C. 1985, c. S-9:

    Discharge of Seamen

    The following passages are also interesting,


    Duties of shipping master

    151. Every shipping master shall…
    (b) superintend and facilitate the engagement and discharge of seamen in the manner hereinafter provided…

    Sanction required for discharge of seamen outside Canada
    280. (1) The master of a Canadian ship shall not discharge a seaman at any place outside Canada, except at a port in the country in which he was shipped, unless he previously obtains, endorsed on the agreement with the crew, the sanction of the proper authority, but that sanction shall not be refused where the seaman is discharged on the termination of his service.

    And if you think this perversion is unique to modern Canadian drafters, I’ve found Hansards that date back to at least 1896 in the U.K.

  6. All that said, I submit that many legislative drafters take delight in their work, and not just for the serendipitous opportunities to work in language such as is described in this post. Few think it tedious, or they wouldn’t do it.

    There is a serious intellectual challenge to working out structures – linguistic, not physical – that are effective, efficient and, usually, unreasonably quickly drafted. It helps to have a feel for nuance and an eye for detail, as in many other jobs (software engineer, air traffic controller, vintner…)

    I work frequently with the Office of Legislative Counsel in Ontario, and they are first rate and not the least bit dull. (I know one who has a Jane Austen action figure in her office!) No matter how well you think you know the subject matter, most Leg Counsel are capable in a quick read to ask questions you can’t answer. That’s a valuable talent – better to have them ask it than the Attorney General or the opposition critic, not to mention a law professor…