Page 42

Nov Advocate 2017

840 V O L . 7 5 P A R T 6 N O V E M B E R 2 0 1 7 THE ADVOCATE 1. “packing for shipment” and “packing for distribution”; or 2. “packing for shipment” and “distribution”. The Court concluded, curiously in my view, that the first interpretation was correct. Since the plaintiffs were truck drivers they were involved in “distribution” but not “packing for distribution”. As a result they were found to be entitled to overtime. Many of the arguments that might occur to the reader were considered by the court. If “packing” had been preceded by an “or”, the conclusion reached by the court would make sense. However, concluding that the “or” related only to the phrase “packing for shipment or distribution” seems to lead to the inescapable conclusion that the meaning of the entire sentence requires that all of the activities be engaged since there is no “or” to make the activities alternative. The only activities that would be alternative are the last two—packing for shipping and packing for distribution. Lest the reader smugly wonder at the extent to which a relatively trivial point (on which a great deal turned) could occupy so much court writing, a CanLII search at the time of writing this article turned up 491 cases in which the word “comma” was used, including 163 appellate decisions. Apparently, missing or present commas are rampant in Canadian law as well, and in both official languages. Not to be outdone by the judges of our southern neighbour, a much earlier decision of the Federal Court of Appeal begins: If this were a detective novel it might have been called, The Mystery of the Missing Comma. As it is, it is an application for judicial review to set aside a decision of an umpire who, according to counsel for the applicant, the Attorney General, misinterpreted a provision of the Employment Insurance Regulations, SOR/96-332, as a result of the omission of a comma from the English text.7 The comma was in the French text, thus the interpretative issue. In another Federal Court of Appeal case8 involving commas, the court said: 12 As submitted by the Appellant, the Webster’s Third New International Dictionary of the English Language suggests that: When inserted or appended words, phrases or clauses are restrictive or essential to the main idea of a statement, they are spoken without the pause or other significant intonation that would indicate a matter of minor importance. In writing commas are likewise unnecessary. (Emphasis added) On page 120 at section 7.14 in The Canadian Style (Dundurn Press Limited in co-operation with Public Works and Government Services Canada Translation Bureau, 1997) it states:


Nov Advocate 2017
To see the actual publication please follow the link above