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Statutory Interpretation - Ordinary Meaning. Toronto Regional Real Estate Board v. Sunderland
In Toronto Regional Real Estate Board v. Sunderland (Fed CA, 2026) the Federal Court of Appeal dismissed appeals, these brought against the granting of motions to strike the claim in a proposed class action on grounds that they "not disclose a reasonable cause of action" - here brought "under the Competition Act, R.S.C. 1985, c. C-34 and relat[ing] to the commissions paid for buyer real estate brokerage services."
The court considers the statutory interpretation principle of 'ordinary meaning', here while assessing the meaning of the term 'control':[73] In our view, the defendants’ interpretation unduly restricts the meaning of the term "“control”". First, the text alone does not plainly and obviously support the narrow interpretation that they adopt. The text does not qualify or limit the type of "“control”" which violates paragraph 45(1)(a). As the Supreme Court of Canada recently noted in Lundin Mining Corp. v. Markowich, 2025 SCC 39 at paras. 70-75 [Lundin Mining], by leaving a term in a statute undefined, Parliament signals its intent for the term to retain its ordinary meaning, permitting the term to apply flexibly within the limits set by its context and purpose, absent any other indication, of which there is none here. It is not plain or obvious that the ordinary meaning of "“control the price”" is limited to directing or determining price changes. Indeed, dictionary definitions for the verb to control (contrôler) reflect the breadth of the term, including meanings such as to "“exercise power or influence over”", and "“regulate or govern”", and include the arguably narrower concepts of "“curb, restrain, or hold in check”": Canadian Oxford Dictionary, 2nd ed. (Toronto: Oxford University Press, 2004); Black’s Law Dictionary, 12th ed. (St. Paul, Minn.: Thomson Reuters, 2024); Le Petit Robert de la langue française (Paris: Dictionnaires Le Robert, 2006).
[74] We rely on this Court’s guidance in Mohr (at para. 47) that "“[o]nce a judge finds that legislation is capable of being interpreted in at least two different ways, it is not open to the judge to conclude that it is plain and obvious that the action has no reasonable chance of success”". Mohr supports the motion judge’s refusal to adopt the defendant’s interpretation as correct. Thus, we reject the argument that the plaintiff’s position is doomed to fail.
[75] Second, the associated words rule is only a guideline and the court must still consider the surrounding context and other relevant principles of statutory interpretation: see Sullivan, § 8.06[2]. For the term "“control”" to have independent meaning, it must be distinct from the other listed activities that affect the quantum of the price including, here, "“fix”". "“Control”" must mean something other than to fix or set a price. Otherwise, it would be co-extensive with the other terms and redundant, offending the basic rule of interpretation that Parliament does not speak in vain: R. v. Proulx, 2000 SCC 5 at para. 28; R. v. Huggins, 2010 ONCA 746 at paras. 23-25. The terms in paragraph 45(1)(a) need not relate to price in the same way or with the same specificity.
[76] That "“control”" has a potentially broader scope than the other terms in paragraph 45(1)(a) finds support in the use of the term elsewhere in section 45. For example, paragraph 45(1)(c) prohibits agreements to "“control”" the production or supply of a product. Paragraph 45(1.1)(a) makes it an offence for employers to conspire with other employers to "“fix, maintain, decrease or control salaries, wages or terms and conditions of employment”". There, "“control”" is arguably the only listed verb that could apply to "“terms and conditions of employment”" and connotes the exercise of authority or governance in a broader sense than strictly dictating a specific outcome, like fixing the quantum of a salary, wage or price.
[77] Therefore, in our view, the motion judge was right to conclude that the term "“control the price”" in paragraph 45(1)(a) was capable of being interpreted as the plaintiff suggested, meaning "“exercise power over”" or" “govern”". . Pepa v. Canada (Citizenship and Immigration)
In Pepa v. Canada (Citizenship and Immigration) (SCC, 2025) the Supreme Court of Canada allowed an appeal, this from a Federal Court of Appeal decision (that from a judicial review at the Federal Court) that held that "it was reasonable for the IAD ['Immigration Appeal Division'] to have found that “it does not have jurisdiction to hear an appeal pursuant to subsection 63(2) [SS: 'Right to appeal — visa and removal order'] of the [IRPA] if the permanent resident visa is expired at the time the removal order is issued”.Note: IRPA 63(2) provides that a "foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing". Here the court considered the 'ordinary meaning' aspect of modern statutory interpretation:(1) Grammatical and Ordinary Meaning
[89] The ordinary meaning is “the natural meaning which appears when the provision is simply read through as a whole” (Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735). The ordinary meaning of the phrase “[a] foreign national who holds a permanent resident visa” is, quite simply, a foreign national who is in possession of a permanent resident visa. The Minister argues and the FC below held that since s. 63(2) is written in the present tense, having once held a permanent resident visa does not place an applicant within the ambit of this provision (R.F., at para. 82; F.C. decision, at para. 53).
[90] I agree that the provision does not say “holds or has held”, and the plain meaning is that the person must “hold” a visa at the appropriate time, in the present tense. The French version is not tied to a verb and focuses more on the status of the person as “[l]e titulaire d’un visa de résident permanent peut interjeter appel de la mesure de renvoi”. When interpreting bilingual legislation, both versions of the legislation are equally authentic and equally authoritative (see, e.g., M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 28; Canada (Transportation Safety Board) v. Carroll‑Byrne, 2022 SCC 48, at para. 68; P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at paras. 356 et seq.).
[91] However, the key issue arising under s. 63(2) is not answered by an ordinary reading of either or both of the official versions. Even accepting that one must hold an unexpired visa under s. 63(2), the section does not prescribe the time at which the individual must hold that visa, or whether a visa which has since expired is still considered to have been “held” at the relevant time. In addition, under the modern approach to statutory interpretation, the analysis does not end with consideration of the text of the provision alone. Due to this, and because nothing in the open-ended wording of s. 63(2) addresses or answers this question, the determination of the relevant time must be informed by the other principles of statutory interpretation that ought to have been considered.
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