Brule v. Plummer

Brule v. Plummer
Collection
Supreme Court Judgments
Date
1979-01-23
Report
[1979] 2 SCR 343
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean
On appeal from
Ontario
Subjects
Insurance
Decision Content
Supreme Court of Canada
Brule v. Plummer, [1979] 2 S.C.R. 343
Date: 1979-01-23
Greta Noreen Brule and Air Canada and The Great-West Life Assurance Company (Plaintiffs) Appellants;
and
Lois Evelyn Plummer, Executrix of the Estate of the late Rudolph Joseph Brule, deceased and Bruxelles Randolph Brule, an infant under the age of twenty-one years by his next friend, Denzil Harry Plummer (Defendants) Respondents.
1978: May 4, 5; 1979: January 23.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Insurance—Life insurance—Infants—Preferred beneficiaries—Illegitimate child preferred beneficiary within the meaning of s. 164(2) of The Insurance Act, R.S.O. 1960, c. 190.
The appellant, Greta Noreen Brule, is the widow of Rudolph Joseph Brule whom she married in 1939. The spouses separated in 1968. The appellant instituted alimony proceedings and obtained a judgment in her favour. From December 1968 until his death in 1973, Rudolph Joseph Brule lived with the respondent Lois Evelyn Rochon who thereafter married Denzil Harry Plummer. The infant respondent is the child of Brule and Rochon (Plummer).
Brule took out an insurance policy on his life with Great-West Life in 1957 and designated the appellant as his beneficiary, the policy being a group policy through his employer, Air Canada.
In 1973, less than three months prior to his death, Brule completed a change of beneficiary form naming the infant respondent as beneficiary and some two months later made a will naming Lois Evelyn Rochon as executrix and their son as beneficiary. The will directed that the proceeds of any insurance policy on his life should be held in trust as if the proceeds formed part of the residue of his estate. The appellant did not consent to the change of beneficiary.
At the time that the policy was taken out The Insurance Act, R.S.O. 1950, c. 183, was the governing statute and s. 158 thereof stated that “preferred beneficiaries are the husband, wife, children, adopted children, grandchildren, children of adopted children, father, mother and adopting parents of the person insured.” The designation of a preferred beneficiary resulted in the creation of a trust and the insured could alter the designation only within the permitted class without the consent of the then designated beneficiary.
An application was made to determine whether the illegitimate child was a preferred beneficiary within the meaning of s. 164(2) of the Act. Both courts below held that illegitimate children were so included.
Held (Martland, Pigeon and Beetz JJ. dissenting): The appeal should be dismissed.
Per Laskin C.J. and Ritchie, Spence and Dickson JJ.: There is nothing in the history of the legislation in question, taken alone, to exclude children of the blood of an insured whether legitimate or not, from the class of preferred beneficiaries. That adopted children were added in 1935 is no ground for saying that illegitimate children should also have been mentioned if they were to be included. Adopted children without the legal stamp could not be classed as children at all. Further, there was nothing to stand in the way of the Court’s freedom to come to its own conclusion on how to construe s. 164(2) of the Act nor was there any social interest that would be advanced by depriving a parent of the right to designate a natural child as a preferred beneficiary. It was not appropriate that an outworn common law approach should be invoked to deny such a preference.
Per Martland, Pigeon and Beetz JJ. dissenting: In the context of the history of legislation (the original Act of 1865 referred to “his wife or his wife and children”) the word “children” did not contemplate the illegitimate children of a woman other than the wife. Furthermore the common law at that time was that the word “child” used either in a private document or an Act of Parliament did not as a rule include an illegitimate child. The context in which the word “children” appeared in the earlier legislation as well as in s. 164(2) of the 1950 Act indicated that the word was not used in the ordinary meaning now given to it. The word did not stand alone nor in relation to a “parent”. The words used throughout were “husband, wife, children” and this indicated that the special privilege of creating a trust was given if for the benefit of the husband or wife of the insured or for their children. Brule could not designate his mistress and to say that he could designate his illegitimate child would be to ignore the impact of the words “husband, wife” which precede the word “children”. [Wojcik v. Anthes Foundry Co. Ltd. (1925), 56 O.L.R. 600, a’ffd (1925), 57 O.L.R. 286; Re Snider, [1947] 4 D.L.R. 326; Montreal West v. Hough [1931] S.C.R. 113; Re Duffell, Martin v. Duffell, [1950] S.C.R. 737; Gingell v. The Queen, [1976] 2 S.C.R. 86; Re White v. Barrett (1973), 35 D.L.R. (3d) 408; Farrell v. Alexander, [1976] 2 All E.R. 721 referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from an order of Labrosse J.[2] on an application to determine whether the illegitimate child of an insured was a preferred beneficiary within the meaning of Part V of The Insurance Act, R.S.O. 1960, c. 190. Appeal dismissed, Martland, Pigeon and Beetz JJ. dissenting.
P.C. Thompson for the appellants.
Maurice Gautreau for the respondents.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This appeal raises a classic issue in statutory interpretation, one which in its particulars is of first instance in this Court. Put shortly (and I shall deal in due course with context and history), is the word “children” in the specification of those who are in the class of preferred beneficiaries under s. 164(2) of The Ontario Insurance Act, R.S.O. 1960, c. 190, limited to legitimate children of an insured, or does the word include all children, whether legitimate or illegitimate? The Courts below, Labrosse J. at first instance, and a unanimous Ontario Court of Appeal, held that illegitimate children were included. The appeal here, brought by leave of this Court, challenges this conclusion.
The challenge was supported by a strong argument by Mr. Thompson, counsel for the appellant but, in my opinion, it fails because I find his initial submission unacceptable. Counsel for the appellant and counsel for the respondent each began with the contention that the Court must first look to the ordinary meaning when construing a word in a statute. Counsel for the appellant submitted that ordinarily “child” or “children” in a statute referred to legitimate children only. It was on that basis that he built the remainder of his argument, seeking to show by history, by context and by reference to interpretations of the same word or words involving similar connotations in other statutes, that there was nothing to show that a wider meaning was intended.
However, it is undeniable that the ordinary, the literal meaning of the word “child” is offspring, the immediate progeny of the mother who bore the child and of the father with whom the child was conceived. To say that the word “child”, standing unqualified in a statute, means legitimate child only is not to take the ordinary meaning, but rather to take away from it by a legal modification said to be compelled by the common law, to gloss it by a judicial policy that put illegitimate children beyond the pale of the law.
Clearly, the issue here depends, in large part, on one’s starting point. If we begin with the ordinary dictionary and biological meaning, a meaning which embraces illegitimate children, other considerations, such as history and context, must be invoked to displace it. If, however, as the appellant urges, we begin with the meaning alleged to be required by the common law, displacement must equally depend on other considerations. It seems to me that if there is nothing in the statute, taken as a whole, to require that the reference to children be confined to legitimate children, then we are faced squarely with the problem whether we wish at this time to continue to gloss the word with the limited meaning that some Courts in the past have placed upon it. There is no decision of this Court directly in point, and we are thus free to arrive at what we think is the better policy, in the absence of any explicit direction from the Legislature.
I turn to the facts. The appellant is the widow of Rudolph Joseph Brule whom she married in 1939. The spouses separated in February, 1968, and the appellant later obtained a judgment for alimony. Brule lived with one Lois Plummer from December, 1968 until his death on or about September 7, 1973. A male child was born to them on February 3, 1969 and he continued to live with his mother after the father’s death. On or about February 25, 1957 Brule took out a life policy with the Great-West Life Insurance Company and in it he designated his wife the appellant as beneficiary. On June 27, 1973, a little more than three months before his death, the insured changed the designation of the beneficiary under the policy, naming his son as such, and in his will made on August 2, 1973, he made a declaration under The Insurance Act in favour of his son. Proper notice was given to the insurer. The appellant did not consent to the change of beneficiary. The only asset of any significance in the deceased’s estate, in so far as it could be considered as part thereof, was the insurance policy, the proceeds of which amount to $24,300.
At the time that the policy was taken out, the governing statute was The Insurance Act, R.S.O. 1950, c. 183, and s. 158 thereof stated that “preferred beneficiaries are the husband, wife, children, adopted children, grandchildren, children of adopted children, father, mother and adopting parents of the person insured”. As is well known, the designation of a preferred beneficiary resulted in the creation of a trust in his or her favour and, subject to certain qualifications, took the insurance money out of the control of the insured, or his creditors. The insured could alter the designation within the permitted class, but not otherwise without the consent of the then designated preferred beneficiary.
Section 158 and associated provisions respecting preferred beneficiaries have their origin in 1865 (Can.), c. 17 which by s. 1 enabled a person to insure his life “for the benefit of his wife or his wife and children, or of his wife and some or one of his children, or of his children only or some or one of them”. By s. 5, insurance money declared to be for the benefit of persons in the class aforesaid was payable to them free from the claim of creditors. The statutory trust of insurance money appeared in 1884 (Ont.), c. 20, under which the provisions of s. 1 aforesaid were carried forward but, in addition, by s. 5 it was provided that a “married” man may declare a life policy to be “for the benefit of his wife or of his wife and children or any of them” and this created a trust in their favour. The term “married” which was carried into R.S.O. 1887, c. 136, was struck out by s. 2 of 1890 (Ont.), c. 39, apparently in order to avoid a difficulty in the application of the section but it also neutralized any implication that might have been drawn that only legitimate children were contemplated. The classification of persons as “preferred beneficiaries” came into Ontario statute law through a consolidating Insurance Act, enacted by 1897 (Ont.), c. 36, s. 159(2) thereof providing as follows:
The husband, wife, children, grandchildren and mother of the assured shall constitute a class which may be known as “preferred beneficiaries” and all other beneficiaries may be known as “ordinary beneficiaries”.
A new Ontario Insurance Act, 1924 (Ont.), c. 50 added “father” to the class of preferred beneficiaries as listed in s. 134(2). The final change, for present purposes, appeared in 1935 when by s. 11 of 1935 (Ont.), c. 29, the class of preferred beneficiaries was enlarged to include adopted children, children of adopted children and adopting parents.
I see nothing in this history, taken alone, especially when regard is had to the deletion of the term “married” in 1890 and to the inclusion of adopted children in 1935, to exclude children of the blood of an insured, whether legitimate or not, from the class of preferred beneficiaries. I think it important also to emphasize that it is not only an insured father (which is the present case) but an insured mother who may make a designation or declaration in favour of a preferred beneficiary, and I would regard it as strange in the one case as in the other if neither could, with confidence that a trust would arise, designate their child as a beneficiary under a policy on his or her life. There are some decisions, however, to consider and I shall come to them shortly.
The class of preferred beneficiaries disappeared in changes made to The Insurance Act by 1961-62 (Ont.), c. 63. The life insurance part of the Act, under which preferred beneficiaries were covered, was repealed and replaced by a new Part V. Among the provisions therein is one stipulating that “a person has an insurable interest… in the life of his child or grandchild” (see s. 145), a provision from which it would be as difficult to exclude a natural child, although illegitimate as it would be to exclude that child as a preferred beneficiary. In place of the previous prescriptions respecting preferred beneficiaries, the amending statute provides in s. 157 for a declaration designating a beneficiary irrevocably, with much the same consequences as prevailed previously and with protection to such a beneficiary against any alteration or revocation without his or her consent.
So far as contracts of insurance made before July 1, 1962 are concerned, (and that is this case), there was a transitional provision which is a point of reference respecting the pre‑existing class of preferred beneficiaries. Section 138 of the 1961-62 amending statute was as follows:
138. (1) Notwithstanding any agreement, condition or stipulation to the contrary, this Part applies to a contract made in Ontario on or after the day on which this section comes into force, and, subject to subsections 2 and 3, applies to a contract made in Ontario before that day.
(2) The rights and interests of a beneficiary for value under a contract that was in force immediately prior to the day on which this section comes into force are those provided in Part V of the Insurance Act then in force.
(3) Where the person who would have been entitled to the payment of insurance money, if the money had become payable immediately prior to the day on which this section comes into force, was a preferred beneficiary within the meaning of Part V of the Insurance Act then in force, the insured may not, except in accordance with that Part,
(a) alter or revoke the designation of a beneficiary; or
(b) assign, exercise rights under or in respect of, surrender or otherwise deal with the contract,
but this subsection does not apply after a time at which the insurance money, if it were then payable, would be payable wholly to a person other than a preferred beneficiary within the meaning of that Part. The in force date of the amending Act was July 1, 1962, and the change to that date was made in the successor s. 146 of The Insurance Act, R.S.O. 1970, c. 224, the Act currently in force with amendments not material here.
I come now to the case law. The point under discussion here was dealt with in two cases, in each by Judges of first instance. In Wojcik v. Anthes Foundry Co. Ltd.[3], Riddell J. did not have to decide the point squarely because the alleged change of designation from the insured’s wife to his illegitimate child was not effectively accomplished. He went on to say however (at p. 605) that
…the cases are quite clear that in a statute the word “children” means legitimate children. One of the leading cases is Hargraft v. Keegan (1885), 10 O.R. 272; and none of the recent legislation for the benefit of illegitimate children goes so far as to give them the advantage of all statutes in which the word “children” is used.
Hargraft v. Keegan, relied on in this passage, concerned a provision of the Wills Act against lapse where a child of a testator dies in his lifetime leaving issue living at the testator’s death. It was held, in a judgment of first instance, that “child” meant legitimate child, and hence the gift to an illegitimate child who died in the testator’s lifetime and who left legitimate children surviving, did not survive her death. (The then Mr. Riddell was successful counsel for the residuary legatees.) The judgment of Riddell J. was affirmed on appeal, but on a ground unrelated to the point under discussion: see (1925), 57 O.L.R. 286.
The second case, Re Snider[4], a British Columbia decision, deals with the matter directly and also briefly. There Farris C.J.S.C. held that because illegitimate children were not mentioned in the definition of “child” in s. 76(1) of the British Columbia Insurance Act, R.S.B.C. 1936, c. 133, only legitimate children were in the class of preferred beneficiaries. This view is simply a ref- lection of the submission of counsel for the appellant on what is the proper starting point in the statutory interpretation of “child”. Moreover, it does not follow from the definition of “child” in s. 76(1) (“child” and “issue” include an adopted child) that illegitimate children, children of the blood, are ruled out because the definition embraces adopted children who would not be of the blood.
The meaning of child has been considered in other statutory contexts. A decision of this Court, Montreal West v. Hough[5], was much relied on by the appellant and the respondent countered by reliance on two judgments of this Court, Re DuffelI, Martin v DuffelI[6] and Gingell v. The Queen[7] and on the majority judgment of the Alberta Appellate Division in Re White v. Barrett[8]. These cases were said to be at least analogically pertinent to the particular issue in the present case.
The Hough case concerned a fatal accident action brought by the natural mother of an illegitimate child who was killed as a result of negligence attributable to the appellant‑defendant. The action was brought under art. 1056 of the Quebec Civil Code, and it was maintained by the Courts below. The ground of appeal taken in this Court on the right of action was that the natural mother had no claim upon her illegitimate son for alimentary support and, consequently, could not assert any claim under art. 1056 for loss of expected pecuniary benefit. This position was rejected by this Court which pointed out that the operation of art. 1056 did not depend on showing that there was a legal right to alimentary support; it depended simply on whether the mother had a reasonable expectation of receiving support or financial benefit in the future from her son.
On the wider point, this Court noted that (1) there was a course of decision on the restrictive character of art. 1056, so far as concerned the class of persons entitled to invoke it; (2) under the prototype Lord Campbell’s Act of 1846, illegitimate children were excluded on common law considerations; and (3) other parts of the Civil Code had been consistently interpreted (unless there was provision to the contrary) to exclude illegitimate children (as did French law). Accordingly, this Court concluded a mother had status under art. 1056 only if she was suing in respect of the death of a legitimate child. In short, this Court felt that no other construction could be put on the words “père, mère et enfants” in the French version of art. 1056, as it then stood. The English version then read “ascendant and descendant relations” and was held to give the same result. The French version was altered in 1930 by 1930 (Que.), c. 98, s. 1 (as the Court noted) to conform to the English, the words “ascendants et ses descendants” replacing “père, mère et enfants”. In 1970, art. 1056 was amended by 1970 (Que.), c. 68, s. 11, and a paragraph was added, reading as follows in the English version:
The same right of action belongs to the natural child following the death of his father or mother, and to the father and mother following the death of their natural child.
Thus the Legislature, after a considerable lapse of time, apparently acted upon the assertion of this Court in the Hough case that it was for it to enlarge the scope of art. 1056 to include the parents of an illegitimate child and such a child.
The Duffell case which came to this Court in 1950, concerned, so far as relevant here, a question as to the jurisdiction of the Surrogate Court of a county in Ontario to deal with the custody of an illegitimate child. The applicable statute, The Infants Act, R.S.O. 1937, c. 215 vested jurisdiction by s. 1 in the Surrogate Court, on the application of the mother of an infant, to make such order as it saw fit regarding the custody of the infant. Custody was in issue between the natural mother, who had surrendered custody to proposed foster parents, and the latter, the mother having withdrawn a consent to adoption before an adoption order was made. This Court rejected the contention of counsel for the proposed foster parents that the jurisdiction of the Surrogate Court operated only in respect of legitimate children. Cartwright C.J.C., speaking for the Court, said (at p. 739): “I cannot find anything in the rest of the Act to cut down the ordinary meaning of the word “mother” or of the word “infant” “ and he upheld the jurisdiction of the Surrogate Court. The relevance of that case here is on the question of what is the ordinary meaning, and it comports with the view I expressed at the beginning of these reasons.
Gingell v. The Queen[9] is also helpful on the question of what is the ordinary meaning of a word, in that case the word “parent”. The narrow but important question in the case was whether the father of two illegitimate children, to whom no notice was given of a proceeding in which they were made temporary wards of the Crown, had a right of appeal as being a “parent”. The Courts below had held that the father of an illegitimate child was not a “parent” to whom a right of appeal was open. This Court rejected that view and held that the ordinary meaning of “parent” in the statute, dealing with the welfare of children, including neglected children, was reinforced by the meaning of “child” under the Act and by the obvious intention that all children be given the protection of the statute, any doubt thereon being removed by a reference, in two provisions to “a child born out of wedlock”.
In the course of his reasons, Martland J., who spoke for the Court, rejected the application to Canadian statutes of the approach of the English Courts that the word “parent” in a statute does not include the father of an illegitimate child unless the context so requires. I take that to mean, and would agree, that the Canadian approach is rather the other way. That was the approach of McDermid J.A. speaking for the majority of the Alberta Appellate Division in Re White v. Barrett[10] with whose reasons in this respect Martland J. agreed.
Like the Duffell case, Re White v. Barrett concerned jurisdiction (more accurately, perhaps, status of an applicant for relief) but in a different although related context. The question was whether a Family Court Judge could entertain an application by the father of an illegitimate child for custody or access to the child. The statute entitled a parent of a child to apply, but did not define either “parent” or “child”. In upholding the lower Courts which had sustained the right of the father to invoke the jurisdiction of the Family Court, McDermid J.A. said this (at pp. 409-411):
…The first question to be decided is the prima facie meaning to be given to the words “child” and “parent” when used in a statute of Alberta passed in the year 1967, which was the year the section to be interpreted was first enacted. Is the rule of construction that these words should be given their ordinary meaning, or should they be given a restricted meaning and confined to a “legitimate child” and a lawful parent? In the first instance we are concerned with only what is the prima facie meaning, for in any case the meaning may be altered by the context of the statute…
Notwithstanding this general rule, counsel for the appellant contends that in construing the word “child” and “parent”, not the popular meanings should be given to these words, but they should be respectively restricted to mean legitimate child and lawful parent. This is the rule of construction in England and it has been applied in a number of Canadian cases.
I accept when the rule of construction was first enunciated in England that children meant “legitimate children”. This was the meaning the ordinary person, whether as a member of Parliament in enacting legislation or as a testator writing his will, would give to the word. It may still be the meaning that a testator in Canada would give to the word and in view of Re Millar, [1938] 1 D.L.R. 65, [1938] S.C.R. 1, this restricted meaning in construing a will, prima facie must be given to the word. However, such restricted meaning is not the ordinary meaning of the word when used in legislation today. In Hutchinson v. Official Administrator (1963), 41 D.L.R. (2d) 658, 44 W.W.R. 55, Aikins, J., of the Supreme Court of British Columbia said at p. 661, “Treating the word child as having its ordinary meaning I think it beyond dispute that the word includes an illegitimate child”. The correlative of “child” is “parent”, and Denning, L.J., in Re M. (An Infant), [1955] 2 All E.R. 911, [1955] 2 Q.B. 479 at pp. 487-8, said, “I must say that if the word ‘parent’ is to be read in its ordinary meaning, I should have thought that the natural father was a parent just as much as the natural mother is…”. I have been unable to find in any dictionary I have consulted that the word “child” or “parent” should exclude an illegitimate child. With deference, I agree with Aikins, J., and Lord Denning, M.R., that the ordinary meaning of the words is as they have stated.
The learned Justice of Appeal then considered a number of other authorities, including the judgments of this Court in the Hough and Duffell cases and concluded as follows (at pp. 413‑14):
In construing the section in question, which was passed in 1967, I think the same rule of construction should be applied as was applied by the Supreme Court of Canada in Martin et al. v. Duffell, supra. I cannot find anything in the Act to cut down the ordinary meaning of “child” or “parent”, and accordingly they should be given their ordinary meanings. With deference I think this rule much preferable to the English rule as applied to statutes passed in recent times. Any time a word is given a meaning contrary to its ordinary meaning in a statute I think there is a great danger that it will mislead the public. Also to apply a rule that prima facie restricts “children” to “legitimate children” hardly seems consonant with the rule that the Courts are concerned primarily with the welfare of the child unless illegitimate children are still to be placed beyond the pale.
It was also his opinion that even if the ordinary meaning should not be taken prima facie as the proper one, it was more consonant with the object of the statute that illegitimate children should be included rather than excluded.
I come now to two judgments of the House of Lords which were concerned with issues of construction similar to those involved here. One, Galloway v. Galloway[11], was relied on in different ways by the respective counsel for the opposing parties; the other, Farrell v. Alexander[12], is pertinent in a more general way to problems of construction.
The Galloway case concerned the question whether a wife who had taken divorce proceedings was entitled to seek custody and maintenance of a child born out of wedlock to her and her now husband and who, because the husband was then married to another women, was not legitimated on their subsequent marriage under the Legitimacy Act of 1926. The legislation under which the wife sought this ancillary relief was a re-enactment of legislation originating in 1857. This was the first time that the issue had come to the final Court. There had been a line of cases in lower courts, with differing results, but the prevailing view (as Lord Radcliffe put it) was that the power of the Court to grant the ancillary relief did not extend to an illegitimate child, except a child whose illegitimacy arose from the nullity of a marriage which was the current subject of court proceedings.
I think it unnecessary for present purposes to dwell in any detail on the English legislation considered in the Galloway case. The relevant statutory clause gave power to the Court in divorce proceedings to make just provision “with respect to the custody, maintenance and education of the children the marriage of whose parents is the subject of proceedings”. The House of Lords divided three to two in holding that illegitimate children were within the scope of the section, reversing the Courts below who had adhered to the older view that the word “children” must be glossed to mean legitimate children only. Viscount Simonds in dissent (joined by Lord Cohen) took as his starting point that the statutory words were to be examined “in the context of the statute in which they are found and the then prevailing general law” (at p. 310). Emphasis on the prevailing law in 1857 led him to the not surprising conclusion that legitimate children alone were meant in any written instrument or statute, prima facie at least, but he preferred an approach that in all cases “‘children’ means legitimate children unless some repugnancy or inconsistency and not merely some violation of a moral obligation or of a probable intention would result from so interpreting the word” (at p. 311). As to context, he could find none to support the inclusion of illegitimate children, and although recognizing that the House of Lords was free to give the word “children” a wider meaning, the climate of judicial opinion was such that it should not be said that the Legislature by successive re‑enactments of the relevant legislation intended that the same words have a different meaning. Viscount Simonds’ views were those pressed strongly upon this Court by counsel for the appellant and I need do no more here than to refer to what I said of counsel’s submission at the beginning of these reasons.
The approach of the majority (Lords Oaksey, Radcliffe and Tucker) was quite different. A primary point for them (and it is relevant here) is that there was no such course of decision on the matter in issue as to warrant the conclusion that the law had been clearly and firmly established. There are two observations by Lord Tucker which I regard as significant. First, taking 1857 as “the crucial date” (to use his words) he went on to say this (at p. 324):
…I am not persuaded that the view with regard to illegitimacy attributed to Parliament in 1857 is a sufficient ground for not construing the section strictly in accordance with its language. Purely as a matter of construction it would seem to me that Parliament, having deliberately chosen a form of words which can only have one meaning with reference to one class of proceeding, and having used the same words with reference to two other classes in a section which is prefaced with the words “in any proceedings”, these words must necessarily bear the same meaning throughout. I agree with the view expressed by Denning L.J. in Packer v. Packer, [1954] P. 15 that any other construction requires the section to be rewritten, and that by the language adopted the test of parenthood has been substituted for legitimacy… The second observation (more accurately, a series of them) is as follows (at pp. 325-26):
…I would be disposed to accept a different construction if there existed a considerable body of authority—although not binding on this House—which had been acted on for many years, and which must be assumed to have been in the mind of Parliament on the occasions when section 35 of the Act of 1857 has been amended or re-enacted. I do not, however, find that the precise point has ever been the subject of express decision until Harrison v. Harrison, [1951] p. 476 although I agree that the reasoning of many of the cases cited points to the construction which has been accepted by the majority of the Court of Appeal in the present case…
…I cannot find in the history of this matter sufficient grounds for inferring that in 1950 Parliament placed the seal of its approval on a previously accepted construction of this section…
I have not referred to the question of convenience, because, in my view, this has little, if any, bearing on questions of construction, but where I find a strict construction results in enabling the court to do that which justice clearly requires in the interest of an infant child, I am the less inclined to reject a literal interpretation by attributing a lack of enlightenment to Parliament in 1857…
Farrell v. Alexander is not as closely related to the type of problem presented here as are the other cases that I have heretofore canvassed. It originated in an action by the appellant lessees to recover from the previous tenant of the premises a sum of money alleged to be an unlawful premium which it was illegal for that tenant to exact in connection with an arrangement whereby she surrendered her tenancy to permit a new lease to be given to the appellants. The immediate question was whether the respondent came within the words “any person” in a statute which made it an offence to require payment of a premium in addition to rent. The respondent’s contention was that “any person” was restricted to a landlord or lessor or prospective landlord or lessor. This position was rejected by the House of Lords with one dissent.
The history of the legislation, going back to 1915 and ending in a consolidation statute in 1968, was heavily relied on to support a restricted mean- ing of the phrase “any person” and as well case law with that result, none of it, however, in the House of Lords. One of the arguments advanced was that re-enactment of the legislation on which a certain judicial decision was given should be taken as a validation thereof. As to this Lord Wilberforce observed (at p. 727):
My Lords, I have never been attracted by the doctrine of Parliamentary endorsement of decided cases; it seems to me to be based on a theory of legislative formation which is possibly fictional. But if there are cases in which this doctrine may be applied, and I must respect the opinions of those judges who have so held, any case must be a clear one… l This case is certainly not such a case.
This observation is relevant to the issue here, and, even more, are the provisions of ss. 4 and 19 of The Interpretation Act, R.S.O. 1970, c. 225, reading as follows:
4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning.
19. The Legislature shall not, by re-enacting, revising, consolidating or amending an Act, be deemed to have adopted the construction that has by judicial decision or otherwise been placed upon the language used in the Act or upon similar language.
Section 19 of the Ontario Interpretation Act has neutralized the suggestion made in many cases, and raised in Farrell v. Alexander, that a re-enactment of legislation amounts to an endorsement of previous judicial decisions thereon. Lord Simon adverted to this issue in his reasons in Farrell v. Alexander and commented on it in terms which appeal to me, as follows (at pp. 740-41):
…the object of statutory interpretation is rather to ascertain the meaning of what Parliament has said. On this approach the previous judicial interpretation is merely one of the facts within the knowledge of the draftsman in the light of which he will draft. It carries to his knowledge as much authority as it bears under the general doctrine of precedent, but no more. If the decision is of long standing it is unlikely to be disturbed unless it is clearly erroneous (and sometimes not even then). If it has been frequently followed it gains added authority. Still more if it has been endorsed by the Court of Appeal. And again if it has been the basis of commercial or proprietary transactions or of criminal responsibility. And so on. A decision of your Lordships’ House on statutory construction is most unlikely to be overruled under the 1966 declaration: Jones v. Secretary of State for Social Services, Hudson v. Secretary of State for Social Services, [1972] A.C. 944. In short, the previous decision carries its own authority. So long as courts are conscientious in applying the doctrine of precedent, the draftsman will rarely be led astray. If Parliament wishes to endorse the previous interpretation it can do so in terms (of, just by way of one striking example, the Law of Property Act 1925, s. 40(2)). The sovereignty of Parliament is fundamental constitutional law; but courts of law have their own constitutional duties, important amongst which is to declare the meaning of a statutory enactment. To pre-empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of Parliament to endorse the previous judicial decision would have to be expressed or clearly implied. Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respect or at most implies merely the truism that the language has been the subject of judicial interpretation for whatever (and it may be much or little) that is worth.
There are, I think, three questions that present themselves at this point. First, is there any reason, on principles of construction or from the standpoint of context, to narrow the ordinary meaning of “children” to exclude illegitimate children? Second, is there any clear course of decision that would impel this Court to such a result? Third, is there any reason of policy, either reflected in the enactment under discussion or from a more general standpoint, to limit the right of a father or a mother to designate a natural born child as his or her preferred beneficiary? I would answer all three questions in the negative and, consequently, support the judgments below.
The ordinary meaning is clear enough, as I have already noted, but it is said that there is a “family” connotation to the class of preferred benefici- aries. I do not know why this should exclude an illegitimate child unless we read “family” as referring to married persons and their legitimate offspring, and this then becomes the same argument already considered, namely, there must be a gloss of legitimacy placed upon the word “children”. Adopted children were added in 1935 but this is no ground for saying that illegitimate children should also have been expressly mentioned if they are to be counted among the class of preferred beneficiaries. The supposition would be that they were not therefore included, but that cannot be as against adopted children who, without the legal stamp, could not be classed as children at all.
Second, there is no clear course of decision that should stand in the way