Barrister and Solicitor
Legal Writing and Research
Statutes - Contracting Out of
Statutes - Interpretation - Expressio Unius
Contracts - Waiver of Statutory Terms
Fleming v. Massey (Ont CA, 2016)
In this case the Court of Appeal considered the important issue of when parties may contract out of terms otherwise statutorily-imposed on their relationship (here provisions of the Workplace Safety and Insurance Act), in particular the public policy concerns that can arise in such considerations:
 The appellant submits that public policy prevents workers from contracting out of the protection afforded by s. 114. That public policy, explicitly stated in s. 1 of the Act, includes ensuring employees injured in workplace accidents receive compensation. The appellant submits that allowing Part X employers to require their employees to waive their right to seek compensation would frustrate this public policy goal. In advancing the argument, the appellant relies on the following proposition from Halsbury’s Laws of England that the Supreme Court of Canada cited with approval in its decision in Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC),  1 S.C.R. 202:The court also considered the statutory interpretation rule of expressio unius est exclusio alterius:
421. Contracting out. As a general rule, any person can enter into a binding contract to waive the benefits conferred on him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that it would be contrary to public policy to allow such an agreement. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement; and, in certain circumstances, it is expressly provided that any such agreement shall be void....
By way of example of an exception to the general rule, an agreement between an employer and employee whereby the latter agrees to waive a statutory duty imposed on the former in the interests of safety is generally not binding on the employee. [Emphasis added.]
 In my view, absent some legislative indication to the contrary, it would be contrary to public policy to allow individuals to contract out of the protection of the WSIA.
 Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC),  1 S.C.R. 202, 132 D.L.R. (3d) 14, and Craton v. Winnipeg School Division No. 1, 1985 CanLII 48 (SCC),  2 S.C.R. 150, 21 D.L.R. (4th) 1, two cases in which the Supreme Court concluded individuals could not contract out of a particular public statute, both involved human rights codes. However, McIntyre J., writing for the unanimous court in Etobicoke, used language that makes clear the principle isn’t limited to human rights legislation. He said, at pp. 213-14:
Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy. In supporting his conclusion, McIntyre J. cited R. v. Roma,  3 W.W.R. 525, a decision of the British Columbia Supreme Court in which Robertson J. found the Government Vessels Discipline Act, R.S.C. 1927, c. 203, to be “a public Act designed as a matter of public policy to protect all seamen proposing to engage in service on government vessels” and that its provisions accordingly could not be waived.
The Ontario Human Rights Code has been enacted by the Legislature of the Province of Ontario for the benefit of the community at large and of its individual members and clearly falls within that category of enactment which may not be waived or varied by private contract …
 McIntyre J. also cited Dunn v. Malone,  O.J. No. 180, 6 O.L.R. 484, a decision of the Divisional Court that concluded that the Interest Act, 1897, was enacted on public policy grounds for the benefit of borrowers and its application could not be waived.
 Recently, the British Columbia Court of Appeal held that, given that the province had enacted a comprehensive universal automobile insurance scheme, it would be contrary to public policy to allow an owner/operator of a motor vehicle to contract out of liability for damages for injuries sustained in a motor vehicle accident. N.J. Garson J.A., writing for the majority in Niedermeyer v. Charlton, 2014 BCCA 165 (CanLII), 374 D.L.R. (4th) 79 at para. 114, concluded:
In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable. The judge erred in finding that the public policy interest exemplified in a compulsory universal insurance scheme was incapable of defeating society's interest in freedom of contract. I recognize that the courts should exercise extreme caution in interfering with the freedom to contract on the grounds of public policy. Considering the sweeping overriding of the common law made by workers’ compensation legislation and the broad protection it is designed to provide to workers in the public interest, it would be contrary to public policy to allow employers and workers to contract out of its regime, absent some contrary legislative indication.
 The Legislature did address the subject of waiver in s. 16 of the Act. Section 16 is found in Part III of the Act, which deals with “Insured Employment”. Section 16 prohibits waiving the entitlement to benefits under the insurance plan. The section provides:
An agreement between a worker and his or her employer to waive or to forego any benefit to which the worker or his or her survivors are or may become entitled under the insurance plan is void. By contrast, Part X of the Act contains no provision equivalent to s. 16. This raises the question whether the canon of construction expressio unius est exclusio alterius, i.e. the implied exclusion principle, applies. Should the Legislature’s narrow focus in s. 16 on prohibiting waiver of only the benefits under the insurance plan be understood as an implicit indication that the Legislature did not intend to prohibit the waiver of the rights of action available under Part X?
 This court applied the implied exclusion principle in University Health Network v. Ontario (Minister of Finance), 2001 CanLII 8618 (ON CA),  O.J. No. 4485, 208 D.L.R. (4th) 459. In that case, the court was faced with the question whether the Network, created by the amalgamation of three health facilities, was exempt from paying retail sales tax. The court held that the inclusion of an explicit tax exemption in the amalgamation legislation of another health care facility and the absence of such an exemption in the amalgamation legislation of the Network indicated that the Legislature did not intend the Network to have an exemption.
 Writing for the court, Laskin J.A. cited, at para. 31, a principle explained by Professor Ruth Sullivan in Driedger on the Construction of Statutes 3d ed. (Toronto: Butterworths, 1994) at p. 168:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Laskin J.A. explained, at para. 32, that “legislative exclusion can be implied when an express reference is expected but absent.”
 However, there are many cases in which the principal is not applied. The Supreme Court declined to apply the principle in Turgeon v. Dominion Bank, 1929 CanLII 47 (SCC),  S.C.R. 67,  4 D.L.R. 1028. Writing for the court, Newcombe J. recognized, at p. 71, that the principle could prove useful but also observed that “while it is often a valuable servant, it is a dangerous master to follow.” The context must always be considered and general rules of interpretation are not always in the mind of the drafter “so the axiom is held not to be of universal application.”
 In Jones v. Canada (Attorney General), 1974 CanLII 164 (SCC),  2 S.C.R. 182 at pp. 195-96, 45 D.L.R. (3d) 583, Laskin C.J., writing for the court, said:
Heavy reliance was placed by the appellant upon the canon of interpretation expressed in the maxim expressio unius est exclusio alterius. This maxim provides at the most merely a guide to interpretation; it does not pre-ordain conclusions. More recently, the Supreme Court declined to apply the principle in A.Y.S.A. Amateur Youth Soccer Association v. Canada Revenue Agency, 2007 SCC 42 (CanLII),  3 S.C.R. 217. Rothstein J. wrote, at para. 15, that “arguments based on implied meaning must be viewed with caution.” He approved of Professor Sullivan’s statement at p. 266 of her book:
While reliance on implied exclusion for this purpose [determining if a provision is exhaustive] can be helpful, it can also be misleading. What the courts are looking for is evidence that a particular provision is meant to be an exhaustive statement of the law concerning a matter. To show that the provision expressly or specifically addresses the matter is not enough. [Footnote deleted.] Rothstein J. reiterated, at para. 16, that the modern approach to statutory construction is “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.
 Reading the WSIA as a whole, it is apparent its objective is to ensure injured workers have access to compensation. It employs two different means to accomplish that objective. The first means provides workers with an insurance plan and completely eliminates workers’ civil actions. In the part of the Act dealing with the first means, it was necessary to prohibit only the waiver of benefits under the insurance plan. The second means, Part X, makes numerous changes to the common law to achieve the same statutory objective by providing workers with rights of action for damages. It seems to me that applying the implied exclusion principle to s. 16 to infer a worker can waive the rights provided by Part X would fundamentally undermine what the Legislature is trying to achieve in Part X.
 Hence, I would conclude that a reading of the Act as a whole does not support interpreting s. 16 as impliedly indicating that the Legislature intended to permit the waiver of the statutory actions created by Part X. The two different means by which the object of the Act is secured must each be interpreted on its own terms.