This week while attending the 2016 Tax Law for Lawyers Conference hosted by the Canadian Bar Association, during a presentation on statutory interpretation by Brian Arnold of the Canadian Tax Foundation, I was reminded how often we take the power of language for granted and how often we use our interpretative skills in daily life. This reminder is an important one as it relates to the drafting and interpreting of legal documents (such as contracts, Wills and trademark applications).
How do we take language for granted? We take words and phrases which, if interpreted literally, would mean one thing and use them to communicate something different without even realizing we are doing it. For example, the presentation’s participants were presented with the phrase “swimming underwater”. If asked about our ability to swim underwater, we take for granted that the person asking the question is questioning our ability to swim in the water under the surface of the water. It is unlikely that someone whose first language is English will take the words literally – put another way, it is unlikely such person will understand the question to refer to his or her ability to swim in the earth found under the water.
With respect to our day-to-day use of our interpretive skills, the following is an adaptation of an example which Mr. Arnold put to us: If Ross is walking down the street with his pet monkey and comes across a sign on a diner which says no dogs or cats allowed, he must make a decision whether or not he can enter such diner with his pet monkey. He may decide that since a monkey is not a dog or a cat his pet is welcome in the diner. On the other hand, he may look at the sign and interpret it as expressing the diner owner’s intention that no pets enter the diner. Ross (or anyone for that matter) might not give such a sign much thought. He might simply understand the sign one way or the other and govern his actions accordingly. However, either way he would be forced to look at the sign and make a decision regarding its meaning.
If, as is demonstrated in the above two examples, supposedly simple everyday actions / thoughts can result in confusion, it is no wonder that legal documents can be interpreted in multiple ways. These examples show why you may pull out a contract or a piece of legislation and find a list of definitions of terms, the meanings of which you thought were obvious. These examples help to demonstrate the importance of using clear and unambiguous language, and asking whether a document expresses your intentions accurately. Finally, they help to explain why lawyers, when drafting documents for you, ask for the details that they do.
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