There- words

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Recommendation

"There-" words should not be used in legislation.

Discussion

"There-" words are words that begin with "There-" and end with a preposition, usually "at", "for", "from", "in", "of", "to", "under" or "with". They have been said to be "thrown in gratuitously to give legal documents that musty legal smell".^[1]

Instead of using "There-" words, drafters should use the appropriate preposition with a noun or pronoun. In the case of "thereof", drafters can use the possessive: for example, "unload any conveyance or open any part thereof" should be redrafted as "unload any conveyance or open any of its parts". In addition, "There-" words that refer to places can often simply be replaced by the word "there".

Redrafting is more difficult when "There-" refers to a noun phrase that is not explicitly stated but merely implied by another part of speech, such as a verb. Take for example "An Act to amend the XX Act and to amend other Acts in consequence thereof". To avoid "thereof", one must first think of the noun phrase to which "There-" refers, that is, amending the XX Act. The title therefore means "An Act to amend the XX Act and to amend other Acts in consequence of amending the XX Act", which can then be re-drafted as " An Act to amend the XX Act and to make consequential amendments to other Acts".

Avoiding "There-" words not only results in plainer language, but also often resolves ambiguities about their antecedents. A typical ambiguity is found in "a corporation with a subsidiary along with the directors thereof", in which it is unclear whether "thereof" is referring to "corporation" or "subsidiary". This provision should be redrafted as either "a corporation with a subsidiary along with the directors of the corporation", or "a corporation with a subsidiary along with the directors of the subsidiary", depending on the intended meaning.

Ambiguity may also arise when a plausible antecedent of a "There-" word is implied by a verb, as in the following example:

The Minister may manufacture or otherwise produce, finish, assemble, process, develop, repair, maintain or service defence supplies or manage and operate facilities therefor.

"Facilities therefor" may mean "facilities for defence supplies", but the context suggests that it may mean "facilities for manufacturing, producing, finishing, assembling, processing, developing, repairing, maintaining or servicing defence supplies".

An example of this latter sort of ambiguity was addressed by the Supreme Court of Canada in Chrysler v. Competition Tribunal (1992), 92 D.L.R. (4th) 609 at 618, although the court itself cast doubt on the interpretation that the antecedent of the "There-" word was implied by the verbs "hear and determine", as had been argued. The Court was considering subsection 8(1) of the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.) which says:

Gonthier, J commented:

In English, the phrase "any matters related thereto" may refer to the applications or to their hearing and determination, though to my mind, the latter reading is constrained [sic] and does not reflect the natural meaning of the words, namely "… hear and determine all applications made under Part VIII of the Competition Act and hear and determine all matters related to the applications". In French, "s'y rattachant" can only refer to the noun "demandes", and not to the verb "entend", or otherwise the clause would read "toute question se rattachant aux auditions".

Although the Court was able to resolve the ambiguity, the issue would have been avoided altogether if "to the applications" had been used instead of "thereto".

Drafters should also beware of situations in which redrafting to avoid "There-" words itself leads to ambiguity, which can happen when there is a modifying phrase following the "There-" word. For example,

"This Part applies to every Canadian corporation and to every subsidiary thereof that has more than three directors".

As drafted, this is not ambiguous. However, if this provision were redrafted as "…to every subsidiary of a Canadian corporation that has more than three directors", it would be ambiguous whether "that has more than three directors" applies to "Canadian corporation" or to "subsidiary", as in the original version. Further redrafting is needed:

• "This Part applies to every Canadian corporation and, if such a corporation has more than three directors, to its subsidiaries".
• "This Part applies to every Canadian corporation and, if a subsidiary of such a corporation has more than three directors, to the subsidiary".

Examples

The following examples show how "There-" words can be replaced.

Original Version	Revised Version
"non-resident" means …	"non-resident" means …
(b) the government of a foreign country or any political subdivision thereof, or any agent or agency thereof.	(b) the government of a foreign country or of any of its political subdivisions, or an agent or agency of such a government.
1. The operator of a sufferance warehouse, bonded warehouse or duty free shop shall, at the request of an officer, (a) allow the officer free access to the warehouse or duty free shop…; and (b) open any package or container of goods therein or remove any covering therefrom.	1. The operator of a sufferance warehouse, bonded warehouse or duty free shop shall, at the request of an officer, (a) allow the officer free access to the warehouse or duty free shop…; and (b) open any package or container of goods there or remove any covering from it.
2. The Governor in Council may make regulations… (c) prescribing the duration of such licences and the manner of applying for such licences or for renewals thereof; (d) prescribing the fees to be paid for such licences, the amount of any deposit that may be taken in respect thereof and the conditions under which such fees or deposits may be refunded;…	2. The Governor in Council may make regulations… (c) prescribing the duration of the licences and the manner of applying for them or for their renewal; (d) prescribing the fees to be paid for the licences, the amount of any deposit that may be taken in respect of the fees and the conditions under which the fees or deposits may be refunded;…
3. In the prescribed circumstances, the Minister may suspend or cancel a customs broker's licence issued under section xx or any other person may suspend or cancel such a licence that they issue thereunder.	3. In the prescribed circumstances, the Minister may suspend or cancel a customs broker's licence issued under section xx, or any other person may suspend or cancel a licence that they issue under that section.
4. In this section, "wreck" includes (a) cargo, stores and tackle of any vessel and of all parts of the vessel separated therefrom; and (b) any wrecked aircraft or any part thereof and cargo thereof.	4. In this section, "wreck" includes (a) cargo, stores and tackle of any vessel and of all parts of the vessel separated from it; and (b) any wrecked aircraft or any of its parts and cargo.
5. Imported goods are charged with duties thereon from the time of importation thereof until such time as the duties are paid or the charge is otherwise removed.	5. Imported goods are charged with duties from the time of their importation until the duties are paid or the charge is otherwise removed.

Footnote

[1] B. Garner, A Dictionary of Modern Legal Usage (2^nd ed.) (Oxford U. Press: 1995) at 401.

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