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Unclear Days: Computing Time in Statutes and Regulations
What does it mean when a statute or regulation says that there must be “x days between” two actions? What about “at least x days between” two actions? In keeping with the relative, wibbly-wobbly nature of time itself, the answer sometimes depends on where you are.
Federally, ss. 26-30 of the Interpretation Act set out rules for computing time in Federal legislation, such as how a time limit that expires on a holiday is automatically extended to the following day (s. 26); or how one month after March 30th is April 30th, while one month after March 31st is… also April 30th (s. 28).
When timelines are described in Provincial statutes or regulations, it is the equivalent Provincial interpretation legislation that governs. In Ontario, for example, these rules are set out in the Legislation Act, while British Columbia and Alberta include these provisions in their respective Interpretation Acts.
Confusingly, these rules are not always equivalent across jurisdictions. For example, the meaning of “at least x days” between two events is not the same in every province. Generally, when a legislative instrument refers to “x days” between two events, it is calculated by excluding the first day and including the last day. So, counting from a Monday, “four days between” means the period ends on the Friday (excluding the Monday but including the Friday). But in many jurisdictions, a reference that specifies “at least x days”, or “x clear days” between two events means that both the first and last days are excluded. So, counting from the same Monday, “at least four days between” means the period ends on the Saturday, not the Friday. This is the case Federally, as well as in British Columbia and Alberta, as examples (see ss. 27, 25.2, and 22(3) of their respective Interpretation Acts).
Ontario, however, doesn’t follow this distinction. Section 89(3) of the Ontario Legislation Act explicitly states that a reference to a period of time between two events includes the last day, “even if the reference is to ‘at least’ or ‘not less than’ a number of days”. So, counting from the Monday, “at least four days between” means the period ends on the Saturday for Federal legislation, but on the Friday for Ontario provincial legislation.
When computing a timeline prescribed by statute or regulation, and diarizing your own corresponding deadlines, it’s a good idea to make reference to the applicable interpretation legislation, and keep in mind that time, when it comes to legislative provisions, is very much relative.
Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.
I heard this on the CBC, and I’m hoping it hasn’t made its way into criminal lawyers’ writing: The suspect was remanded back into custody.
The re- prefix means ‘back’, so it is just remanded (and usually in custody, sometimes to, but not into).
Similarly, not refer back – just refer.
Ditto revert etc.
The reason why
Lord Tennyson may be to blame for this one (or C.V. Wedgwood): ‘Theirs not to reason why, theirs but to do or to die’ (The Charge of the Light Brigade).
It’s a pretty awful poem, but it’s worse to say The reason why the defendant did this is…; it’s just The reason the defendant did this is…
And please, never the reason is because or, worse, the reason why is because (the latter something also heard on the CBC).
The reason is that … can work, however.
If something remains, it’s still there – so still is a tautology.
Which is to say, unnecessary.
If you are unfamiliar with this writer, head to the nearest independent bookstore (Ben McNally would be an excellent choice in Toronto) and buy her unusual and compelling novels Speedboat (1976) and Pitch Dark (1983), both recently reissued under the New York Review of Books imprint.
What have they got to do with legal writing?
After completing her doctorate at the Sorbonne, Adler received a JD from Yale but never practised law.
Her training in law (and linguistics) must have prompted this perceptive observation of a lawyerly or that is more conjunctive than disjunctive: ‘And I’ve found, I think, the strongest “or” in language anywhere. It’s the lawyers’ phrase: as he then well knew or should have known. The strongest or.’
And she decries the overuse/misuse of literally and presently in a passage on the ‘assault mode’ of cinema reviewers:
‘“Literally,” in every single case, meant figuratively; that is, not literally. This film will literally grab you by the throat. This book will literally knock you out of your chair. “Presently” always meant not soon but now.’
My Favourite Apps – Part IV
Nowadays, I think most transit systems probably have an app that tells you when the next bus or train is coming. Handy, but I found a new app – Citymapper – which is great for planning out how to get where you need to go.
Citymapper will help you find your away around cities across North America, Europe, Asia and Australia. Most of the time you don’t even need an address. Just type in the name of the restaurant, museum, building, etc. and the app will tell you numerous ways to get there via public transit.
And if you want to explore other travel options, Citymapper also provides walking and bike routes (including the nearest bike share location) and Uber estimates. It’s all there…in one app.
Got a favourite app? I would love to hear about it.
Lesha Van Der Bij (@LVanDerBij) is CEO & Founder of Optimize Legal – keeping law firms and businesses up-to-date on changes to the law.
How to Cite Online Looseleafs
The question came up recently on the CALL listserv about how to cite online looseleafs, specifically those available on Thomson Reuters’ ProView platform.
The McGill Guide suggests citing print looseleafs as follows:
Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint.
However the McGill Guide does not address the question of how to cite a looseleaf that’s been accessed online. Extrapolating from section 6.2.1 of the McGill Guide (“Books”), it makes sense to add the online source at the end, e.g.
Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint (WL Can).
Note that Appendix E of the McGill Guide lists a number of abbreviations for online services, but not ones for Lexis Advance or ProView.
Many thanks to Esther Bélanger of Fasken Martineau DuMoulin who provided the following information:
[Thomson Reuters] are recommending this form :
Donald MacOdrum, Fox on the Canadian law of patents (Consulted on 29 August 2019), (Toronto: Thomson Reuters), ch 14 at 10 (Thomson Reuters eLooseleaf Library).
It is probably more practical to follow the McGill Guide’s lead and cite the revision number/date rather than the date it was consulted.
Esther also noted that Thomson Reuters sensibly recommends “looseleaf titles, whether in print or electronically … should be cited to chapter and section number/heading, not to page or paragraph numbers.”
Confusing Pairs Redux
You broach a subject when you raise it with someone: The partner
broached the issue of missed deadlines with the hapless associate.
A brooch is a piece of jewellery typically pinned to the upper breast: The Queen always wears a large diamond brooch on her coat or dress, but her ancestor James I preferred to pin one to his hat.
The two words are pronounced in the same way (like broach).
This shouldn’t need to be mentioned, but you’d be surprised – shocked, really – by the number of lawyers who have said to me that they sometimes get confused about which is which.
One gives a mortgage to a lender, perhaps to the point of being mortgaged to the hilt. So, if you like, think of the mortgagee as the donee in this scenario.
That is, the bank or some other lender who takes security for the loan (although this person is the giver (donor) rather than the recipient of credit).
The mortgagor, then, is the giver of the mortgage (but the taker of credit).
They mean the same thing, but people get confused about which one to use.
The verb shine has two forms in the past, shined and shone.
Research yields a general rule of thumb: shined tends to be used where the verb has an object (I shined my shoes but The moon shone brightly).
This isn’t invariably the case. It is more natural to say She shone her flashlight into the dark cellar or The inquiry shone a light into the dark world of cryptocurrency.
I am led to believe that Americans pronounce shone to rhyme with tone not gone. Shudder.
Neither a Lender…
Do you lend someone money or do you loan it?
You can do either, in fact. (The noun is always loan.)
The verb lend, in the sense of granting someone else temporary possession of something in the expectation of its eventual return, is an old one: Ælfric used it in his Grammar more than a thousand years ago.
Loan as a verb isn’t much more recent, going back at least as far as the early thirteenth century. In modern usage, however, the OED says it is ‘chiefly US’.
How we use the two verbs in this northern part of North America is, I think, idiomatic – with loan more frequent (but not universal) in a transactional setting.
Can you lend me ten bucks?
I will lend you the book, but please return it.
She lent me a hand when the going was tough.
The room doesn’t lend itself well to groups of more than ten.
Banks lend money at interest.
The finance company loans money at exorbitant rates.
The National Gallery loaned/lent the painting to the travelling exhibition.
Get Free Ontario CPD Papers on AccessCLE
It’s been a few years since AccessCLE was cited here on SlawTips, and a recent mention of it on the CALL-L listserv made me think it would be worth pointing to again, especially since there’s been a recent development that makes it even more accessible.
So what is the AccessCLE database? It’s a repository of LSO continuing professional development papers from 2004 onwards. While there was originally an embargo on papers newer than 18 months, the LSO recently lifted that restriction and now all papers are free.
The Great Library’s Know How blog reminds us that:
“Continuing professional development (CPD) program materials are an invaluable source of current legal information. Papers typically cover the practical implications of recent case law and legislative developments, and often include useful precedents, procedure and checklists. “
The papers can be searched full-text or browsed by topic, then downloaded as PDF.
This is one of those words with a weird function confined largely to the world of law.
The ordinary current meaning of deem, according to the OED is, essentially, to consider, think or judge (in a non-judicial way).
But lawyers have a special meaning, where deeming means treating A as if it were B and not A. Creating a legal fiction, in other words (and that doesn’t mean John Grisham).
This comes up in my teaching, where the law school will occasionally stick a deemed Wednesday in the calendar, in order to make up for an actual Wednesday sacrificed for some reason like a holiday or special event.
It also comes up a lot in statutory drafting, where all kinds of things are deemed to be other things for legal purposes: the word deemed occurs 4141 times in the Income Tax Act (Canada), for example.
Oddly, the OED’s other definitions of deem, while they involve judgment of some kind, don’t quite capture the ‘treating A as if it were B’ meaning that is familiar to lawyers.
One legislative drafter says that the ordinary ‘consider’ usage should be avoided: ‘Phrases like “if he deems fit” or “as he deems necessary” are objectionable as deviations from common speech’ (GC Thornton, Legislative Drafting, 2d ed (1979), 83-4, cited in Black’s Law Dictionary).
It appears that the Dictionary would think the legislative use of deem is actually the departure from ordinary usage – but intelligent people can disagree.
This division of opinion may cease to matter. Ruth Sullivan suggests that modern legal drafters have already ditched deem in the ‘consider’ sense and are starting to say is considered or just is when they wish to create legal fictions (Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis Canada, 2014), at §4.105).
National Self-Represented Litigants Project Report Now on CanLII
CanLII recently announced that 22 reports from the National Self- Represented Litigants Project (NSRLP) are now available on CanLII. The NSRLP builds on the National Self-Represented Litigants Research study conducted by Dr. Julie Macfarlane from 2011-2013 and is committed to advancing understanding of the challenges and hard choices facing the very large number of Canadians who now come to court without counsel. The NSRLP regularly publishes resources designed specifically for SRLs, as well as research reports that examine the implications for the justice system. The reports include:
- Ordering a Court Transcript: A guide to ordering court transcripts in each province and territory across Canada
- What You Need to Know About Affidavits
- Reading and Understanding Case Reports
To access the complete collection of reports, please visit the CanLII commentary site.
[This tip by Melanie Hodges Neufeld originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]