Inside a recent Court of Appeal decision are timing decisions which give 4 pieces of guidance on how to calculate times:
1. general help in finding what is the last day to do something;
2. what time the last day ends;
3. when service by email occurs; and
4. how to prove email service.
The decision skips the old distracting reasoning about fractions of a day and which days to count or not count. It gets right to the bottom line, and shows how some legislation on the general subject is not on point.
One former Rule of Court about when the business day ends, and the effects of evening service, disappeared in 2010. So service up to midnight is service that day. When service is by a device (such as email or a fax), that is not too big a problem. But where service or attempted service is by hand (the best method in many cases), there is a problem. Attempted service by hand after an office is closed leaves no record or notice. Can an opposing lawyer come by your office at 11 p.m., find no one there, and so get an extra day to serve? If you are served the next day, you may assume that is too late. But if the previous evening was the last day, maybe it isn’t. Service when the office is next open may suffice.
Late evening service sounds like trickiness by the person serving, but not in all cases. About a year ago, I went to a downtown Edmonton office building, to drop something off in a law office there. It was a weekday, yet I found the outer door of the building at street level locked at 4:58 p.m. What does your landlord do? What does your receptionist do? Not what they supposedly do; what they really do. And not usually, but right now in Covid times. Do you actually know?
The decision is Covey v. Devon Can. Corp. 2020 ABCA 445, Calg 1901 0233 AC (Dec 8). On times and service, see ¶’s 12-19.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
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