Which Kraft of Statutory Interpretation? A Supreme Court of Canada Trilogy on Intellectual Property Law

Abstract:     
As understood from a statutory interpretation perspective, the Supreme Court of Canada has recently handed down a series of controversial decisions in Theberge, Kirkbi, and Kraft. Read together, these cases do not offer a consistent or principled methodology of resolving troublesome statutory interpretation problems. Building on the work of HLA Hart, Lon Fuller, Ronald Dworkin, and Reed Dickerson, this paper argues for such a method. Recognizing that legislation is drafted prospectively and in view of paradigmatically conceived scenarios, i.e. typical kinds of foreseeable cases that might arise, it follows that statutory meaning will often be uncertain or incomplete in the face of novel cases, i.e. the kinds of cases not foreseen by the legislature and for which, consequently, there is no reasonably clear interpretation flowing from the statute. Courts can derive richer meaning from statutory language and resolve novel cases by analogizing the facts before them with paradigm cases, i.e. typical cases captured by a rule as manifested either in the statute, prior case law, or as elicited by subjective connotations in the mind of the judge arising from a purposive analysis of the statute. Specifically, courts should determine if there are enough material similarities between paradigm cases, and the case before it, to include it under the statutory rule. The implications of this method are as follows (a) greater emphasis on the institutional responsibility of the legislature to carefully draft legislation (b) principled development of statutory meaning which both constrains and enables judicial discretion and (c) greater and more legitimate discretion by courts to interpret statutes for which there is only indirect intent of the legislature to regulate the subject matter before the court.

Keywords: statutory interpretation, statutory construction, legal theory, jurisprudence, Hart, Fuller, Dworkin, intellectual property law, copyright, patents, trade-marks

Working Paper Series