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Regulations generally come into force on either a date specified in the regulation itself or, if no date is specified, on the date that regulation was filed. (Note that this is not the case for Newfoundland, Prince Edward Island, or Québec.)

The coming into force provisions for a regulation are usually found in the Regulations Act (or equivalent) of a jurisdiction:

  • Federal: “Every enactment that is not expressed to come into force on a particular day shall be construed as coming into force … (b) in the case of a regulation, on the expiration of the day immediately before the day the regulation was registered pursuant to section 6 of the Statutory Instruments Act or, if the regulation is of a class that is exempted from the application of subsection 5(1) of that Act, on the expiration of the day immediately before the day the regulation was made.” (Interpretation Act, RSC 1985, c I-21, s 6(2))
  • Alberta: “Unless a later day is provided, a regulation comes into force on the day it is filed with the registrar and in no case does a regulation come into force before the day of filing.” (Regulations Act, RSA 2000, c R-14, s 2(2)).
  • British Columbia: “A regulation or portion of a regulation comes into force on the date of its deposit unless (a) a later date is specified in the regulation, or (b) an earlier date is specified in the regulation and the Act under which the regulation is made authorizes the regulation to come into force on an earlier date.” (Regulations Act, RSBC 1996, c 402, s 4(1))
  • Manitoba: The Statutes and Regulations Act, CCSM c S207, s 20
  • New Brunswick: “A regulation or any provision of a regulation comes into force on the day that it is filed with the Registrar unless (a) a later day is specified in the regulation, or (b) an earlier day is specified in the regulation and the Act under which the regulation is made authorizes the regulation to come into force on an earlier day.” (Regulations Act, RSNB 2011, c 218, s 3)
  • Newfoundland: “Unless another day is provided, subordinate legislation comes into force on the day it is published under section 11 but in no case does subordinate legislation come into force before the day of filing unless it is provided in the Act under the authority of which the subordinate legislation has been made or approved.” (Statutes and Subordinate Legislation Act, RSNL 1990, c S-27, s 10(2))
  • Northwest Territories: “A regulation or part of a regulation comes into force on the day on which it is registered unless (a) a later day is specified in the regulation, or (b) an earlier day is specified in the regulation and the Act under which the regulation is made authorizes the regulation to come into force on an earlier day, in which case the regulation comes into force on the later or earlier day, as the case may be.” (Statutory Instruments Act, RSNWT 1988, c S-13, s 8)
  • Nova Scotia: Regulations Act, RSNS 1989, c 393, s 3(6)
  • Nunavut: Statutory Instruments Act, RSNWT (Nu) 1988, c S-13, s 8
  • Ontario: “Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation comes into force on the day on which it is filed.” (Legislation Act, 2006, SO 2006, c 21, Sch F, s. 22(2))
  • Prince Edward island: ”Every regulation which is not expressed to come into force on a particular day comes into force on the day the regulation is published in the Gazette.” (Interpretation Act, RSPEI 1988, c I-8, s 3(4))
  • Québec: “A regulation comes into force 15 days after the date of its publication in the Gazette officielle du Québec or on any later date indicated in the regulation or in the Act under which it is made or approved.” (Regulations Act, CQLR c R-18.1, s 17)
  • Saskatchewan: “A regulation or part of a regulation comes into force on the date of its filing unless: (a) a later date is specified in the regulation; or (b) an earlier date is specified in the regulation and the Act pursuant to which the regulation is made authorizes the regulation to come into force on the earlier date.” (Regulations Act, SS 1995, c R-16.2, s 5)
  • Yukon: “Unless a later day is provided, a regulation shall come into force on the day it is filed with the registrar.” (Regulations Act, SY 2002, c195, s 2(2))

There are, of course, exceptions; for example in Alberta, section 1(2) of the Regulations Act lists legislation which is not considered to be a regulation for the purposes on the Act.

Susannah Tredwell

 

This one may surprise you.

Purists often say that between must – MUST! – refer only to a relationship involving two parties or things, and no more. The –tween bit does have the same origin as the number two, after all.

Among, the purists say, is to be used when the relationship involves three or more persons or things.

The purists are too pure. The Oxford English Dictionary and Fowler’s Modern English Usage have long warned that this supposed distinction between between and among is mere ‘superstition’.

According to OED, ‘between has been, from its earliest appearance [at least as far back as the year 931], extended to more than two’ – and ‘it is still the only [emphasis added] word to express the relation of a thing to many surrounding things severally and individually; among expresses a relation to them collectively and vaguely…’

One would therefore correctly say:

  • The space lying between the three trees
  • A treaty between three states
  • A difficult choice between three candidates
  • You are among friends
  • Among many choices, he took the easiest option
  • She is a keen tennis-player, among other things

In contractual drafting, however, you may be better off saying The agreement among X, Y and Z – if only to keep the (misguided) purists at bay.

As Ross Guberman observes in Deal Struck: The World’s Best Drafting Tips (2014), debating the point with the purists is probably ‘not constructive’.

And while we’re on the subject…

Never between you and I. Always between you and me.

Next: it could go either way

Neil Guthrie (@guthrieneil)

 

Are you using CanLII Connects for your legal research?  CanLII Connects is a phenomenal website that features high-quality legal commentary and summaries of Canadian court decisions.  It’s a continually growing source of authoritative legal commentary that is free, accessible, and open to anyone.  Currently, the site boasts summaries of thousands of Canadian decisions dating back to the 1800s.

CanLII Connects is more than just a website.  It’s a community resource.  It brings together members of the legal community and provides a space to share their analysis and opinions of court decisions.  The commentary found on CanLII Connects is created by members of the legal community.  Only qualified members of the legal community and registered users of this site are permitted to post.  This maintains quality.

From the homepage, summaries can be quickly sorted by jurisdiction, date, or author.  This makes it easy to find summaries from a particular province or contributor.  Each summary is linked directly to the full text case on CanLII.  Conversely, cases on CanLII are linked to any summaries available on CanLII Connects.

CanLII Connects has made big waves and received some prestigious awards including the Canadian lawyer Magazine’s Readers’ Choice Award and the Canadian Law Blog Award.

The Law Society of Saskatchewan Library has been a major supporter of CanLII Connects since it was launched in April 2014.  To date, the Law Society Library has submitted almost 25,000 summaries of Saskatchewan court decisions to CanLII Connects.  This represents our entire collection of case digests.  As you may know, the Law Society Library employs a number of contract digesters to summarize and digest Saskatchewan court decisions.  These digests appear in Case Mail, our popular semi-monthly newsletter, and in the Saskatchewan Cases database.

We have been proud to support CanLII Connects.  It is an impressive endeavour that signifies major changes to the world of legal information and publishing.

[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

This is an excerpt from an actual letter received from a writer whose identity shall remain shrouded with a justly deserved veil of anonymity:

“We acknowledge your recent correspondence and attachment of the 29th instant with thanks, same being forwarded herewith to our client for reference and review, with the writer confirming our telephone conversation of the 19th, and your undertaking not to take steps to the detriment of our client without ample prior notice to the contrary being first given to the writer, [client] presently being in the process of retaining litigation counsel to deal herewith, with service being endorsed herewith on the true copy as requested.”

Instant? No one has used that for ‘of the current month’ since about 1870. Three instances of herewith in one sentence?? And it’s not entirely clear what the third one is referring to…  Same?! Ugh, ugly commercialese – and, logically, it refers here to thanks not correspondence and attachment (which the writer presumably had in mind). And the writer??!! You’re a lawyer, not Queen Victoria – so there’s no need to refer to yourself in the third person.

I fear this lawyer also writes to clients in the same vein …

Here’s a proposed translation, which may not be much shorter – but at least it’s clearer and doesn’t sound like something drafted by some scrivener in a novel by Dickens:

“Thank you for your letter and attachments of [month] 29, which we have forwarded to our client. We remind you of your undertaking, when we spoke on the 19th, to give notice before taking any steps which may adversely affect our client. Our client is now seeking litigation counsel. We have received your client’s statement of claim and return the signed copy you requested.”

Less egregious, but equally Dickensian (in a bad way):

  • please find attached/enclosed (even in the days of physical letters the please find business was weird and archaic; you can simply say I have attached the X or refer to the X, which is attached)
  • please do not hesitate to … (the reader is a grown-up and can figure whether he or she wants or needs to do that; this is meaningless and faintly patronising)
  • this is to acknowledge (just say thank you for whatever it is; by doing that, you’ve acknowledged it)
  • govern yourself accordingly (the worst kind of wannabe Perry Masonism; it should be clear from your letter, if you’re writing to a lawyer, that the recipient should be on notice about something – and if you aren’t writing to a lawyer, it sounds even more cheaply menacing)
  • we appreciate your consideration herein (another gem from Steven’s correspondent; herein usually means ‘contained in this document’, so the meaning is unclear; but you’re better not even to go there)

Please avoid these (and other) worn-out phrases, which have altogether too much of the inkwell and the quill pen about them.

Next tip: between and among

Neil Guthrie (@guthrieneil)

 

Tracing the legislative history of an act can be challenging, and even more so if the act you are looking at is the Income Tax Act. Here are some things to keep in mind when tracing the legislative history of the Income Tax Act:

  • The Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) maintains the section numbering from the previous version, rather than being renumbered.
  • The Income Tax Act, R.S.C. 1970, c. I-5, although published in the revision, never came into force due to the major changes proposed by the bill that later became S.C. 1970-71, c.63.
  • Although S.C. 1970-71-72, c. 63 was an amending act, it repealed and replaced almost all of the Income Tax Act, R.S.C. 1952, c.148, so you periodically see references to “the Income Tax Act, S.C. 1970-71-72, c.63”.

Susannah Tredwell

 

The fourth in a series.





Next week: please don’t tell me you write letters like this

Neil Guthrie (@guthrieneil)

 

Me and others, in fact: these are largely submissions by loyal readers.

Alright
No, you are thinking of almost. It’s all right – two words, always.

Anyways
A word that used to be used to mean ‘in any way, in any respect, at all’. Witness the Book of Common Prayer (1560): ‘ all those who are anyways afflicted, or distressed, in mind, body, or estate’ (btw, English prose doesn’t get much better than the BCP).

More recently, anyways has come to mean ‘in any case, at all events, anyhow’ – but in usage that is variously described as ‘informal, ‘colloquial’, ‘dialectical’ or (ahem) ‘illiterate’.

The better way, in both speech and writing, is anyway.

Asking questions that aren’t questions
Just because you use a word that can pose a question doesn’t mean you’re necessarily asking one. The question mark in this blog post is wrong: When Three Rights Make a Wrong? – this is a statement, not a question. Reframe it as ‘When do three rights …’ and you can add your question mark.

The problem often arises in student memos: The first issue is whether a motion for summary judgment would succeed? Wrong again; statement, not question.

The disconnect
This should have been included in the tip on weak nouns formed from verbs.

I am so sick of hearing about the disconnect! Please say disconnection, disjuncture, failure (not fail), communication failure, gap – anything but the disconnect.

Firstly, lastly
These have a ring of circa 1875 to them: you’d be better not to use them.

One of the oddities of traditional English style is enumerating as follows: First, Secondly, Thirdly … Last. Firstly appears, in fact, to be a nineteenth-century invention that has always sounded fussy.

In modern writing, you could even go with second and the like over  the –ly form, which has the advantage of being consistent with both first and last.

Pre
Why do people tack on this prefix where it really isn’t necessary?

Please don’t preheat your oven, just heat it – this requires prior action before you can cook, so pre- is redundant.

Similarly, pre-arrange, pre-book, pre-build, pre-chilled, pre-cooked, pre-existing, pre-owned (just say used or second-hand), pre-plan, pre-prepare (an absurdity of the first order), pre-qualify, pre-select and pre-set can all lose the pesky prefix and suffer no loss in meaning. The concept of priority is built into all of them.

Pre-drinking as a concept has its uses, however – even if, linguistically, it also fails the logic test.

Stating the perfectly obvious
You really, really don’t need to write Gurpreet Singh (‘Singh’) if he’s the only Singh you mention in your client update or blog post. This isn’t contractual drafting.

Similarly, there is no need to say two (2) months (or whatever unit you’re talking about). Everyone knows what two means, and no amount of ‘for greater certainty’ is necessary. Even in contractual drafting.

Next: confusing pairs, part 4

Neil Guthrie (@guthrieneil)

 

 

Nouns can be used in ways that tire the reader. Here are some things to watch for.

Noun chains
Richard Wydick, author of the excellent Plain English for Lawyers (5th ed, 2005), observes that long chains of nouns used as adjectives don’t make for vigorous prose.

As Wydick puts it, ‘noun chains create noun chain reader strangulation problems’. (See GWWT 42 for the contrasting German approach, which is fine with noun-accumulation.)

Writers of headlines in a certain kind of newspaper love noun chains: ZIKA VIRUS HEALTH CRISIS WARNINGNAZI MYSTERY GOLD TRAIN DISCOVERYDEATH CRASH POLICE OFFICER RELEASEHOLLYWOOD STARLET DRUG SCANDAL SHOCKER.

So (perhaps oddly) do drafters of legislation and other bureaucrats: a glance at federal regulations beginning with A yields (among other gems) the Animals of the Sub-family Bovinae and their Products Importation Prohibition Regulations and the Alberta Sex Offender Information Registration Regulations.

This is OK in the interests of concision on the front page or in a legislative table, but in other kinds of writing the effect is deadening – or downright confusing. Example: business process outsourcing strategy.

Remove some nouns, insert some verbs, make a sentence not a verbal car-crash.

Noun phrases (aka nominalisations)
Here, noun combines with verb (and some other stuff), in order to make what could usually be a straightforward verb. Another way to describe it is with the awful noun nominalisation (making a noun out of something else, basically).

Examples (with their preferable, simple verb alternatives in parenthesis):

  • make a recommendation (recommend)
  • provide assistance to (help or assist)
  • make a decision (decide)
  • provide advice to  (advise)
  • this is to acknowledge receipt of (we received)

Etc., etc. – you get the drift. The problem with these constructions is that they make your sentences longer, flabbier, less direct. Surely you’d rather be concise, toned and vigorous (in your prose, at the very least)?

Weak verbs from nouns
Another tendency of dull legal prose is to use verbs that are derived from nouns (like nominalise).

Other examples: facilitate, operationalise, utilise. Why not the simpler (and more lively) help, launch and use?

Weak nouns from verbs
Please avoid the temptation to turn verbs into nouns, especially when there are perfectly serviceable nouns already. Examples (with their better, existing nouns): ask (request); spend (expenditure, cost), value-add (benefit, advantage).

Next up: miscellaneous little things that annoy me, part 3

Neil Guthrie (@guthrieneil)

 

Conflict of laws, also known as private international law, is a topic concerning the rules governing what happens when two or more legal systems clash in a private dispute. Pitel & Rafferty’s text on Conflict of Laws identifies three key questions: (1) whether a court has jurisdiction, (2) what law the court will apply, and (3) whether a judgment from another jurisdiction will be enforced. Unlike public international law, conflict of laws is not the same everywhere, but is particular to each jurisdiction.

As such, some people have asked about developing a Saskatchewan-specific resource for conflict of laws. While most of the issues discussed the textbooks are internationally-based, there are some areas, such as estates law and family property law, where inter-provincial jurisdictional issues become critical. So a Saskatchewan-based resource might be a good idea – we’ll look into it!

Nationally, the most often-cited text is Castel & Walker’s Canadian Conflict of Laws. The current (6th) edition is a two-volume looseleaf published by LexisNexis, which is available at our libraries in Regina and Saskatoon. For a more concise text, try the aforementioned Pitel and Rafferty, a volume in Irwin’s Essentials of Canadian Law series, which are available to Saskatchewan lawyers online through the Members Section of our website. Also available through the Members Section, and our shelves, is the Canadian Encyclopedic Digest volume on Conflict of Laws, which is cross-referenced to related case law in the Canadian Abridgment.

Internationally, the library maintains the current edition of the classic Dicey Morris and Collins book on The Conflict of Laws, published by Sweet & Maxwell in London. At a glance, I wasn’t sure how relevant this text is to Canadian legal disputes (unless they involve the British jurisdiction specifically), but it has been cited by Canadian courts over 400 times in CanLii, including in recent decisions by the Saskatchewan Court of Appeal and Supreme Court of Canada, so apparently it still carries some authority.

If you have any questions about the above, or have any recommendations about sources we should acquire or develop, please add your comments below, or otherwise contact us.

[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

Oh, Microsoft, Apple and your ilk! You think you’re being helpful when you release new tools and updates, but you generally wreak more havoc than you bring clarity and certainty.

Herewith some views on some various writing ‘solutions’ (to use the lingo of Silicon Valley).

Auto-correct
I am a terrible typist, so in some ways a feature that automatically corrects obvious typos is a blessing.

But also a curse. The auto-correct feature that you get with the standard Microsoft products was not devised by lawyers, nor is it set up to work in a Canadian setting. It can also defy common sense and good English.

Microsoft Word thinks that tortious (relating to a civil wrong) must be tortuous (twisty), dislikes honour, offence and the like, assumes I mean paragraph © not paragraph (c), and insists I want 5th when I actually want 5th (the superscript is incorrect in legal citations, by the bye).

You can reset the language from US English to Canadian (or Caribbean, or Australian, or UK…) English, but that’s a bit fiddly to do – and what dictionaries are they relying on? If the word ‘Oxford’ isn’t in the title, it’s not a proper dictionary, to my mind.

The auto-correct feature that comes with Apple’s version of Microsoft is even more aggressive. And texting is worse: no wonder there is a website dedicated to frustrating (and funny) iPhone auto-correct failures.

Auto-fill
How many times have you sent an e-mail to the wrong person because some other name was automatically pulled out of your contacts or your list of previous recipients?

Often this isn’t really an issue (although your mother may wonder why you’re asking her to join the gang for drinks on Friday night), but if you’re a lawyer it can be very scary indeed.

Many a privileged e-mail has wound up with the wrong party as a result of the auto-fill feature, and that is clearly A Bad Thing.

Spell-check
Same comments as for auto-correct. No, I don’t mean cheese when I type cheque

In a legal document, you’ll end up with lots of wavy lines under technical terms or regional spellings which Word just doesn’t recognise. And your humble scribe hasn’t managed to figure out how to add a (correct) spelling to spell-check’s dictionary.

Use this feature with caution – it’s never a substitute for printing off a hard copy and doing some proper proofreading.

Microsoft Word Proofing
This is a bit buried. Go to the Review tab in the top toolbar in Microsoft Word, then Review > Language > Language Preferences > Proofing.

You’ll get a menu that allows you to select your auto-correct options (you can turn off the automatic correction of (c) to ©, for example).

You can also run a check of grammatical and stylistic problems or errors, including misused words, run-on sentences, sentence fragments, clichés, colloquialisms, gender-specific language, passive constructions, unclear phrasing and overly long sentences.

Another option is to get readability statistics – and I bet you most lawyers will get high scores for the number of passive constructions (which isn’t good).

A lot of subjectivity there, but at least you can accept or reject the suggested changes. It’s doubtful that the software is attuned to legal terminology, but it may help you avoid some obvious problems.

WordRake
This one isn’t free, but it may also be helpful. WordRake says it ‘tightens, tones, and clarifies your writing’ (like calisthenics for prose?), aiming for both ‘clarity and brevity’. By clicking  ‘the “rake” button … the in-line editor ripple[s] through your document, suggesting edits to remove clutter and improve unclear phrasing, just like a live editor.’

Sounds great! In a recent demo with a real lawyer’s document, WordRake picked up a lot of boring, passive constructions and suggested more concise alternatives to verbose phrasing. But it failed to pick up the (ghastly) facilitative and didn’t always handle idioms well. It won’t catch grammar and spelling errors.

Like all the other tools, helpful as far as it goes, but unreliable.

Next time: noun-fatigue

Neil Guthrie (@guthrieneil)