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Statutory Interpretation - "Shall". Zemer et al. v. Toronto District School Board
In Zemer et al. v. Toronto District School Board (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR seeking (in part) a declaration, this brought against "the TDSB’s decision to disband the School Council and to direct a new election" of the School Council.
Here the court considers a statutory interpretation issue regarding "shall" - ie. whether in this usage it is either 'directory' or 'mandatory':[63] The TDSB submits that the word “shall” in s. 4(4) of O. Reg. 612/00 is directory rather than mandatory.
[64] As noted in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 73:... R. W. Macaulay and J. L. H. Sprague succinctly explain the mandatory/directory distinction as follows:Where a provision is imperative it must be complied with. The consequence of failing to comply with an imperative provision will vary depending on whether the imperative direction is mandatory or directory. Failing to comply with a mandatory direction will render any subsequent proceedings void while failing to comply with [a] directory command will not result in such invalidation (although the person to whom the command was directed will not be relieved from the duty of complying with it ... . [Citations omitted] [65] In British Columbia (Attorney General) v. Canada (Attorney General), 1994 CanLII 81 (SCC), [1994] 2 SCR 41, Iacobucci J. stated at pp. 122-123:In particular, I think it is relevant to note that in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court commented upon the doctrinal basis of the [Montreal Street Railway Co. v.] Normandin [1917 CanLII 464 (UK JCPC), 33 D.L.R. 195 (U.K. J.C.P.C)] distinction. The Court stated (at p. 741):The doctrinal basis of the mandatory/directory distinction is difficult to ascertain. The "serious general inconvenience or injustice" of which Sir Arthur Channell speaks in Montreal Street Railway Co. v. Normandin, supra, appears to lie at the root of the distinction as it is applied by the courts. In other words, courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?
There can be no doubt about the character of the present inquiry. The "mandatory" and "directory" labels themselves offer no magical assistance as one defines the nature of a statutory direction. Rather, the inquiry itself is blatantly result-oriented. In Reference re Manitoba Language Rights, supra, this Court cited R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), per Russell J., at p. 130, to make the point. It is useful to make it again. Russell J. stated:I do not profess to be able to draw the distinction between what is directory and what is imperative, and I find that I am not alone in suspecting that, under the authorities, a provision may become directory if it is very desirable that compliance with it should not have been omitted, when that same provision would have been held to be imperative if the necessity had not arisen for the opposite ruling.
The temptation is very great, where the consequences of holding a statute to be imperative are seriously inconvenient, to strain a point in favor of the contention that it is mere directory.... Thus, the manipulation of mandate and direction is, for the most part, the manipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, supra, the principle is "vague and expedient" (p. 742). This means that the court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation. But the process perhaps evokes a special concern for "inconvenient" effects, both public and private, which will emanate from the interpretive result.
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