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Preemptory & Peremptory: misused and confused words!

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

Introduction
The purpose of this article is to explain the meaning of and distinguish between the words preemptory and peremptory.
 
Everyday usage / common meanings
The common usage or everyday meaning, as opposed to the legal meaning, of each of the words is as follows:
 
Preemptory (also spelled pre-emptory) [pree-EMP-tor-ree]
Preemptory is defined as pertaining to preemption. To preempt is to take action in order to prevent (an attack or other anticipated event) happening; or to forestall.
 
The most common use of preempt is in its adjectival form, preemptive, usually used in a military context e.g. the commander ordered a premptive strike against the enemy.
 
Peremptory [pre-emp-tor-ee]
Peremptory is an adjective with a number of meanings:
  1. Precluding or putting an end to all debate or action.
  2. Not allowing contradiction or refusal; imperative; absolute; decisive; positive; conclusive; final; not admitting of question; not open to appeal, challenge, or delay.
  3. Insisting on immediate attention or obedience.
  4. Expressive of urgency or command.
  5. Offensively self-assured or given to exercising usually unwarranted power; dictatorial; dogmatic; brusque; imperious.
Cause for confusion between the two
Peremptory is often misspelled and mispronounced “preemptory”. This confusion is caused by the influence of the verb “preempt”, but as noted, the adjectival form of preempt is actually preemptive.
 
Legal use of peremptory
There are a number of correct legal meanings for peremptory:
 
Peremptory order
When used to describe orders, peremptory means that the order must be performed by the given time and no further extensions will be given.
 
“[P]eremptory” in the sense used in the relevant cases: see especially, Saikaley v. Commonwealth Insurance Co. (1978), 21 O.R. (2d) 629, 91 D.L.R. (3d) 298 (H.C.J.) [means] "obligatory"…"positive" [or] "conclusive" on the "time" issue.
(Wright v. Rank City Wall Canada Ltd. (1990), 72 O.R. (2d) 44, per Master Sandler).
 
In Taggart v. Taggart (No. 1) (1951), 3 W.W.R. (N.S.) 418 (B.C.S.C.), Wood J. made a peremptory order that the husband in that action pay security for costs by a particular date, or risk his action for reversal of the Decree of Judicial Separation being dismissed. The husband failed to pay by the specified date because he did not have sufficient funds. The husband re-applied for reversal of the Decree and explained that he could not pay the security because all of his wealth was tied up in the house which he owned with his wife. Wood J. described his earlier order as peremptory and refused the husband’s application to reverse the Decree of Judicial Separation.
 
However peremptory orders are not absolute; the words "peremptory" or "peremptorily" do not always mean "absolutely final". There is a discretion in the Court under special and urgent circumstances to determine whether they shall have that meaning or not:
 
[T]he phrase "peremptory order," … means that the order is given on the footing that it is to be final unless some very special and urgent circumstances are brought forward as a reason for altering it.
(Re Alger and Sarnia Oil Co. (1892), 21 O.R. 440 (Ont. H.C.)).
 
Consent orders may be peremptory, and may be ordered on just one of the parties: Inter-Coastal BKR Development Group v. Cadillac Care Inc., [1995] B.C.J. No. 2275 (QL). For example, if the defendant has been unreasonably withholding discovery information, the court may specify a disclosure order that is “peremptory on the defendant.”
 
Peremptory trial / hearing date
When used to describe a trial or hearing date, peremptory means that the trial will proceed on that date without any further opportunity for postponement. If the party is not prepared to proceed on that date, a default ruling will be made against them.
 
Jurisdiction to make a trial date peremptory is found in the courts inherent jurisdiction to control its own process. A peremptory trial date may be established by the court on its own motion, or at the request of a party, to insure timely disposition of the case.
 
In R. v. M.W.D., 1999 YTSC 1 the Crown requested an adjournment of the trial date because some of its witnesses were unavailable. A new trial date was set and was ordered peremptory on the Crown meaning that if the Crown was not ready to proceed on that date, a judicial stay of proceedings would be entered.
 
Peremptory challenge
When selecting a jury, each party has the right to have a certain number of jurors dismissed from serving on the panel without stating a reason: R. v. Bain (1992), 69 C.C.C. (3d) 481 at 520, [1992] 1 S.C.R. 91.
 
Peremptory challenges are distinguished from "challenges for cause" (reason) which are based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial.
 
The number of peremptory challenges for each side depends on whether it is civil or criminal proceeding.
 
Peremptory writ:
At common law, a peremptory writ was an original writ requiring the presence of the defendant in civil actions. If the defendant failed to appear, default judgment would be awarded.
 
Legal use of preemptory
Preemptory is often used to describe court orders or trial dates which are not open to variation. As explained above, this is an incorrect usage of preemptory and the word peremptory should be used in that context.
 
The following describes correct usages of preemptory in a legal context.
 
Preemption with respect to goods or shares:
The purchase of goods or shares by one person or party before the opportunity is offered to others. In old English law such a right of preemption was held by the Crown which allowed it to purchase provisions and other goods for the use of the Crown, at an appraised value, in preference to all others, and even without the consent of the owner.
 
Nowadays preemptive rights may be contractually granted to purchase shares, options, or other securities ahead of other parties. For example, preemptive rights may give existing shareholders a right of first refusal to purchase new shares offered for sale.
 
Preemption with respect to acquiring Crown land:
A right conferred by the government on a person who has settled on and improved public land, to purchase that land at a fixed price to the exclusion of all other applicants.
 
Constitutional law doctrine of preemption
Based on s. 91 of the Constitution Act 1867, under the doctrine of preemption once the federal government has legislated in an area, it may specifically and expressly preempt all provincial legislation on that subject matter by declaring that it has “occupied the field”. Alternatively, the federal legislation may bar only inconsistent provincial legislation. Where parliament does not clearly indicate whether it intended to preempt all legislation or only inconsistent legislation, the court will determine parliament’s intention from the nature and legislative history of the enactment.
 
Preemption in international law
Historically, the right of a nation to detain the merchandise of strangers passing through the jurisdiction in order to afford its subjects the preference of purchase.
 
Sources consulted:
o       Dukelow, D., The dictionary of Canadian law, 3rd ed. (Toronto: Carswell, 2004).
o       Gardner & Gardner, Sanagan's Encyclopaedia of Words and Phrases Legal Maxims, Canada, 5th ed. (Toronto: Carswell, looseleaf).
o       Words & phrases judicially defined in Canadian courts and tribunals (Toronto: Carswell, updated to June 2006) (8 volumes).
o       Yogis, J., Canadian law dictionary, 5th ed. (New York: Barron's, 2003).
o       Concise Oxford English Dictionary, 11th ed. (Oxford, Oxford University Press: 2004).
  
  
 
 
Research articles :