Pepper v Hart – Use of Legislative History

Wikipedia’s article of the day on its main page today is a reference ot the House of Lords decision in Pepper v Hart. The case established the ability of English courts to use legislative history in interpreting unclear provisions of legislation. The full article goes into some detail about why the history had not been available before (parliamentary privilege under the 1689 Bill of Rights – the courts must not criticize Parliament) and why it might be a bad idea now (it would be too much work for lawyers giving advice or drafting to have to wade through Hansard all the time).

There is a paragraph on the Canadian experience – is it accurate? Of course our courts do ‘criticize’ Parliament in holding legislation ultra vires on occasion, or inoperative for constitutional reasons.

The article also notes the impact of the decision on legislative drafting, making it allegedly less likely to be complicated and overly detailed.

The Uniform Law Conference of Canada has a current project to update the Uniform Interpretation Act. Should a new Uniform Act expressly deal with the use of legislative history by the courts, and if so, how?

[h/t to Sandra Petersson of the University of Alberta for pointing out the Wikiepedia main page entry.]


  1. David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005) 76 OR (3d) 161, 2005 CanLII 21093 (ONCA) (leave to appeal denied by the SCC) overruling McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (ONCA) is an example of what happens when legislative history is ignored.

    For example:

    [6] The insurers’ appeals raise these two broad questions: did the McNaughton panel err in its interpretation of statutory condition 6(7); and, if it did, should we now overrule our court’s previous decision? I would answer both questions in the affirmative.

    [90] The insurers filed a substantial legislative record on these appeals. This record was not before the panel in McNaughton. …

    [91] This legislative history therefore lends support to the insurers’ interpretation of statutory condition 6(7). …

    [92] These indicators of legislative meaning overwhelmingly demonstrate that statutory condition 6(7) was meant solely to codify the principle that on paying the insured the full value of the damaged car (the actual cash value or replacement value), the insurer is entitled to take the salvage. …

    The end result was that the ONCA overruled itself, because the history of the legislation made it clear that the prior decision was wrong.

    [106] For these reasons, I do not agree with the respondents’ argument that McNaughton was correctly decided. Instead, I accept the insurers’ interpretation of statutory condition 6(7). That interpretation is faithful to the wording of statutory condition 6(7), especially when that wording is considered in its entire context; it accurately reflects the statutory condition’s purpose; and it yields a reasonable and sensible meaning. Accordingly, I conclude that in McNaughton we erred in our interpretation of statutory condition 6(7).

    [145] To paraphrase what this court said in White, supra, at 604 … in the exercise of our responsibility for the state of the law in this jurisdiction, I think that the proper course is to correct the McNaughton error now.