In Canada, federal statutes are bilingual, in French and in English, and both are equally authoritative. The important issue of reviewing both versions of statutes was highlighted in the recent Federal Court decision Sandoz Canada Inc v. Canada (Attorney General), 2014 FC 501 (“Sandoz”). A succinct MBM blog post on this case is available at: http://www.canadaipblog.com/2014/05/pmprbs-interpretation-of-patentee.html. In his analysis and interpretation of “patentee”, the Honourable Mr. Justice O’Reilly noted that the French version of section 79(1) of the Patent Act, R.S.C., 1985, c. P-4, is narrower compared to the English version. By accepting the narrower interpretation, Sandoz is consistent with the “shared meaning” principle of bilingual statutory interpretation. This principle stipulates that in cases of discrepancies between the English and French versions of a statute, the meaning common to both versions must be accepted unless evidence of legislative intent indicates otherwise.
The leading case on bilingual legislations and statuary interpretation is R. v. Daoust, 2004 SCC 6 (“Daoust”). At paragraphs 27 to 30 of Daoust, the Supreme Court of Canada set the following steps for interpreting bilingual statutes:
- First, one needs to determine if there is “discordance” between the two versions of the statute. If discordance exists and it is “irreconcilable”, the court must rely on other statutory principles such as purposive and contextual interpretation;
- If the two versions are not irreconcilable, the court must determine whether there is an ambiguity, as in whether the wordings are “reasonably capable of more than one meaning”;
- When neither version are ambiguous, or they both are, the common meaning is normally the narrower version;
- When one version is ambiguous and the other is not, the version with the unambiguous wording is the common meaning of the two versions;
- When one version’s meaning may be broader than the other version, the version with the narrower meaning in this case would be the common meaning and thus adopted by the court; and
- The second step after the common meaning is ascertained, the court must move to assess the common meaning’s concordance with the ordinary rules of statutory interpretation.
The “shared meaning” principle guided Justice O’Reilly in Sandoz to interpret the English and French versions of section 79(1) of the Patent Act. He concluded that the English version’s meaning is broader than the French version and accordingly, the narrower French version was adopted.
Since Canada’s Constitution Act allocates intellectual property to the Federal Government’s portfolio and all federal statutes are bilingual, it is therefore prudent and very important to pay attention to both versions of the relevant statutes when dealing with IP matters in Canada.
By David Chen & Amir Mirtaheri