Today's decision in Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719 deals with the difficult issue of when legislative history may/ought to be considered.
At the Divisional Court level it was found to be a jurisdictional error not to refer to such history when interpreting statutory/regulatory language. Such finding, to this author, seems problematic. While it may be wise to refer to legislative history to such suggest the failure so to do leads to jurisdictional error seems implausible.
In any event, the Court of Appeal (in a split decision) found the jurisdictional determination was wrong and the tribunal from whom review was taken did not lose jurisdiction by the failure to consider the legislative history.
The Court of Appeal referred to the dissent in Divisional Court with approval saying:
[20] As for legislative history, Swinton J, found that the Tribunal's failure to refer to evidence of legislative history did not deprive the Tribunal of being accorded deference, or render its decision patently unreasonable. Moreover, legislative history was not the focus of the argument before the Tribunal. She referred to Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 35 for the proposition that evidence of legislative history only plays a limited role in statutory interpretation. In any event, it is not fatal to a Tribunal's decision that specific mention is not made of certain evidence: Trotta v. College of Nurse of Ontario, [1991] O.J. No. 348 ( Div. Ct.).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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