With increasing frequency, one reads arguments by lawyers arguing their clients have a “strong” case or defence based on an interpretation of a contractual or statutory provision is so wrong, it is enough to make one weep. Beyond the common complaint about the literacy of lawyers in their everyday correspondence or speech, the inexcusable lack of legal acuity in our profession seems to be reaching epidemic status.
Part of the problem is that, contrary to public expectations of law schools as places where one learns about laws, we do not really teach lawyers how laws are drafted or how contracts are interpreted. At my alma mater, Contractual Interpretation is offered as an upper-year elective. The course description is blunt and offers self-criticism about the inadequacy of the core curriculum:
“In the real world of law practice and in the courts, by far the most important aspect of contract law is contractual interpretation. Disputes over the meaning of contracts are pervasive and often quite intractable. Yet contractual interpretation is not a central focus of most contract law courses, and legal literature on the topic is relatively underdeveloped.”
Perhaps even more of a jolt to public expectations may be the offering of the Statutory Interpretation course only at the Masters level. Once again, it is no Freudian slip that the course is described in relation to what students do not learn in the core curriculum:
“So much of law school, especially the first year curriculum, emphasizes the common law dynamics of legal argument, reasoning and doctrine. And yet, since the 20th century, Common Law jurisdictions have witnessed a dramatic rise in legislative enactments and regulations that courts are often required to interpret.”
Let there be no doubt. We are not training our lawyers to be experts on reading what laws and legal documents actually say.
Comparison to other disciplines
Can we imagine other academic disciplines graduating students without having taught the basic language of the subject area? Imagine a graduate from a music school not knowing how about major and minor scales, or a doctor who received an M.D. without taking anatomy.
The awkward fact about Canadian law is that, for the better part of a century, law schools have taught a rigid curriculum mandated by law societies and “bridge” programs intended to survey professional practice topics. Legal drafting and interpretation are actually much more difficult to teach and to learn than substantive law. I would wager that if we actually made legal literacy a required first-year course with a robust C+ pass score, most would fail and would have to resit the exam during the summer.
The instructive value of the analogy to music or medicine cannot be underscored enough. One can imagine a trained music teacher walking into a rehearsal and knowing immediately, by the distances between notes, what is wrong with a piece. Or a doctor understanding why pain felt in one part of the body might actually be referred pain from an injury or lesion elsewhere. A lawyer trained in the basics of interpretation should be able to look at a clause in a contract or regulation and advise the client precisely what it means and what it does not mean.
Learn the ejusdem generis rule: The Hidden Logic of Lists
The laws of contractual and statutory construction are based on common principles because both are laws (one is private, the other public). Beyond the basic similarities, they do diverge at advanced levels. One of the most basic and yet most misunderstood area of interpretation is the ejusdem generis rule, which is the rule governing lists. There are many interpretive rules that seek to legislate substantive or procedural fairness, like those defining the equivalence of the conjunction “or” with “and,” the permissive verb “may” with the mandatory “shall,” or the contra proferentum rule of strict observance against the party who drew up a document. The ejusdem generis rule is one of the few that focuses on law as a specialized vernacular.
In plain terms, ejusdem generis rule means “of the same kind,” meaning the intention of the creator of a list of defining terms in a legal document was to describe people, things, occurrences, etc., that should bear the same legal consequences. There is nothing metaphysical about this. It is not an incantation. Rather, it is a recognition that the choice of listed examples has a meaning beyond being randomly chosen examples of a more general class of phenomena. If a grocery supply contract provides an extra charge for handling and delivery of “peaches, nectarines and other soft fruit,” a court may interpret the contract as allowing the charge for transporting apricots but not pears or grapes, despite the ambiguity of the word “soft” in describing fruit.
The reason why the list in legal practice is not easy is that its purpose is to capture and give status to known classes of phenomena without casting the net wider than intended but nevertheless avoiding class orphans. The list stands in stark contrast to the legal syllogism, the latter being made up of a major premise and minor premise from which the deduced result requires no interpretation. A law founding a Canadian provincial law society that defines a “lawyer” as “a person licensed in Ontario to practice law as a barrister and solicitor” does not contain a tautology because a lawyer licensed in another jurisdiction but not here is not a lawyer for the purpose of the legislation. Such a definition is contained in Ontario’s Law Society Act, s. 1(1). It operates as a classic syllogism because Jane Doe, having acquired such a licence, is a lawyer for the purpose of the legislation.
As soon as one tries to define what a lawyer does exclusively, for the purpose of excluding non-lawyers from what lawyers do, it gets complicated: see subsections 1(5), (6), (7) and (8). There is a broad general definition of legal services comprised of a root dyad of legal principles and judgment in relation to a client:
“For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”
In order to ensure that certain types of conduct are specifically covered and others exempted, the remainder of these subsections provide lists of what legal services are and what they are not. Subsections 1(6), (7) and (8) themselves constitute a list of lists, with (7) giving specific examples of a category listed in (6), and (8) saying what is not to be included in (5). Subsection (6) contains clause (6)2(ii), which is a description of selecting, drafting, completing or revision, on behalf of a person:
“a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person”
The ejusdem generis rule will limit “other document” to documents like wills and codicils and will resist inclusion of other documents surrounding death, such as a death certificate. That is within the confines of this and similar clauses, but the overall structure of 1(5), (6), (7) and (8) is that of a general definition followed by a list of examples.
The introductory phrase to subsection (6), “Without limiting the generality of subsection (5),” operates in the same way as the word “including” in a more particular provision. Lawyers too often consider the non-exclusive nature of the list to assert items in the list as autonomous points of departure to expand the meaning of the provision. The Law Society Act example shows how it would be overreaching to construe clause (6)2(ii) as prohibiting an office supply store from selling a wills kit, thereby denying the major premise of having to apply legal principles and judgment.
Using the term ‘non-exhaustive’ to describe definitions that rely on the conventional meaning of the defined word can therefore be misleading. Such definitions are non-exhaustive only in the sense that they are incomplete. To appreciate the intended meaning or scope of the word, reference must be made to its conventional meaning which is not set out in the text. (Sullivan on the Construction of Statutes, 5th Ed., p. 64)
Words like “including” or introductory phrases like “without limiting the foregoing” make sure that certain examples do fall within the definition in the way that the words “not including” ensure that certain examples do not fall within the definition. The word “including,” similar to the French equivalent “notamment,” has the effect of ensuring that listed items following the word are understood to be included in the overarching definition.
The leading Canadian decision on the intersection between the esjudem generic rule and the semantics of an apparently expansive list is National Bank of Greece (Canada) v. Katsikonouris,  2 SCR 1029. The National Bank of Greece decision starts with the ejusdem generis rule as meaning a class of things is followed by general wording does not allow the general wording to expand the list. The use of general denominators followed by a list of examples separated by the word “including” is a departure from the ordinary ejusdem generis rule used by the courts to limit the scope of meaning:
“… The rationale for applying the ejusdem generis rule is accordingly absent. Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it. But it would be illogical to proceed in the same manner when a general term precedes an enumeration of specific examples. In this situation, it is logical to infer that the purpose of providing specific examples from within a broad general category is to remove any ambiguity as to whether those examples are in fact included in the category. It would defeat the intention of the person drafting the document if one were to view the specific illustrations as an exhaustive definition of the larger category of which they form a part.
“Moreover, in this instance, the very language used to introduce the list of omissions and misrepresentations confirms that it would be erroneous to view them as exhaustive. In the English version of the clause, the term “including” precedes the list of examples of omissions and misrepresentations, while the term “notamment” is used in the French text. I note that the Concise Oxford Dictionary (7th ed. 1982) defines “include” as “comprise or embrace (thing etc.) as part of a whole”, while the Petit Robert 1 (1987) says of “notamment” that it “sert le plus souvent à attirer l’attention sur un ou plusieurs objets particuliers faisant partie d’un ensemble précédemment désigné ou sous‑entendu”. This meaning finds confirmation in legal lexicons as well: the entries under “include” and “including” in Stroud’s Judicial Dictionary (5th ed. 1986) to take but one example, again make it clear that these words are terms of extension, designed to enlarge the meaning of preceding words, and, not, to limit them. [underline added]
“As I have noted, the natural inference is that the drafter will provide a specific illustration of a subset of a given category of things in order to make it clear that that category extends to things that might otherwise be expected to fall outside it.”
Lawyer as professional reader
If the principles outlined above seem arcane, they shouldn’t. If we ever did learn about interpretive rules, perhaps we also learned that most of them are not arbitrary conventions but products of judicial scrutiny. Of course we are not required to be walking encyclopaedias. We are supposed to possess higher order abilities when it comes to reading and writing about law. The ejusdem generis rule is a good mind-training exercise for lawyers, like basic positions in ballet or object exercises in method acting. Whenever a client brings us a problem or concern involving a contract or statute, we should be able to see patterns and meanings more capably than the client. That, after all, is part of what we are and what we do.