That's a fair point, Mr. Chair.
The text continues:
Non-exhaustive definitions are used to expand or narrow the ordinary meaning of terms, to deal with borderline applications of terms or to illustrate their range of application by setting out examples.
That makes sense.
In the last section, Ms. Sullivan describes examples in our situation, where we have “means” and “includes” in the same clause. She said:
A statutory definition stating that a defined term “means and includes” something would be confusing since it would imply that the definition both displaced ordinary meaning (means) and relied on it (includes). However, a definition that first uses “means” to stipulate a definition that displaces ordinary meaning and then uses “includes” to enlarge, narrow or illustrate the stipulated definition makes sense and is a conventional drafting technique. In such a case, the defined term applies to anything that comes within the stipulated definition regardless of whether it also comes within the meaning of the words that follow “includes”....
This is where it gets a little tricky, because there seems to be some disagreement at the Supreme Court on this. I won't go through all of it, but she makes reference to the Entertainment Software Association case. She notes, “It is not always obvious whether a list that follows ‘includes’ is meant to expand the scope of the stipulated definition or merely illustrate it.” She then quotes Justice Abella's majority in that case and Justice Rothstein's dissenting opinion. I won't read them, but they're there.
After reading that, I was still unsure, to be honest. Maybe if I had spent some more time considering it, I would have been more comfortable. What I have proposed solves this, in my mind at least, because we're simply going to say, in the current clause, “means” in the chapeau, and in each subclause, we'll remove “including” and use the word “namely” to denote an exhaustive list.
I would like your view on this, Ms. Gibner or Mr. Wong, or whoever else would like to comment. In my view, by doing so, we've made it doubly clear that the amendment's purpose is to say the classes of subscriber information that are listed in that clause are exhaustive.