Judgments

Decision Information

Decision Content

A-862-83
P. F. Collier & Son Ltd. (Appellant) v.
Deputy Minister of National Revenue for Customs and Excise (Respondent)
INDEXED AS: P. F. COLLIER & SON LTD. v. CANADA (DEPUTY M.N.R, CUSTOMS AND EXCISE)
Court of Appeal, Thurlow C.J., Heald and Stone JJ.—Toronto, September 23; Ottawa, September 25, 1986.
Practice — Limitation of actions — Tariff Board refusing to hear appeal on ground notice of appeal filed out of time Statutory time limit of 60 days for appeals — Board's office closed on fifty-ninth and sixtieth days of appeal period — Appeal allowed — Board erred in law — Notice timely — Applicable principle that if court office closed day time expires, time extended to next day office open — Approach within spirit of Interpretation Act, s. 11 — In view of reliance on common law, statutory argument as to definition of "holi- day" in Interpretation Act, s. 28 not considered — Customs Act, R.S.0 1970, c. C-40, ss. 47(1), 48(1) — Interpretation Act, R.S.C. 1970, c. I-23, ss. 11, 25(1), 28 — Judicature Act, R.S.O. 1980, c. 223, s. 92.
CASES JUDICIALLY CONSIDERED
APPLIED:
Pritam Kaur v. S. Russell & Sons Ltd., [1973] Q.B. 336 (C.A.).
DISTINGUISHED:
Horowitz, L.N., v. M.N.R., [1962] C.T.C. 17 (Ex. CO. COUNSEL:
David R. Vine, Q. C. for appellant. Judith McCann for respondent.
SOLICITORS:
David R. Vine, Q. C., Toronto, for appellant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
STONE J.: I think this appeal which is brought under subsection 48(1) of the Customs Act,' R.S.C. 1970, c. C-40 as amended should succeed. The Tariff Board should have heard the appeal on the merits. As the office of the Board in Ottawa was closed the whole of Monday and Tuesday, December 27 and 28, 1982, the notice of appeal was timely within the sixty-day time limit laid down by subsection 47(1) of the statuie 2 when it was filed on Wednesday, December 29. The appel lant could not file the notice on either the 27th or 28th which were the fifty-ninth and sixtieth days after the decision of the Deputy Minister was made because the Board's office was closed on both days. That being so, to give it the full sixty- day of the period which was a Sunday. Lord Denning, M.R., with whom Karminski L.J. con- , curred, said (at page 349):
I do not challenge the principles of the decision of Thorson P. in Horowitz, L.N., v. M.N.R., [1962] C.T.C. 17 (Ex. Ct.), on which the Board and counsel for the respondent relied, or their applicability in a situation comparable to that there considered. But there was in that case no reason such as there is here why the giving of the required notice could not have been accomplished on the last of the prescribed days.
In my view the correct principle to be applied here is to be found in Pritam Kaur v. S. Russell & Sons Ltd., [1973] Q.B. 336 (C.A.). That case
' That subsection provides for an appeal from an order, finding or declaration of the Tariff Board "upon any question of law".
2 47. (1) A person who deems himself aggrieved by a decision of the Deputy Minister
(a) as to tariff classification or value for duty,
(b) made pursuant to section 45, or
(c) as to whether any drawback of customs duties is payable or as to the rate of such drawback,
may appeal from the decision to the Tariff Board by filing a notice of appeal in writing with the secretary of the Tariff Board within sixty days from the day on which the decision was made.
involved the time within which an action could be commenced for a fatal accident and it was held that the action had been commenced "within three years" laid down by the statute when it was com menced on the next day after that period had expired, the court office being closed on the last day of the period which was a Sunday. Lord Denning, M.R., with whom Karminski L.J. con curred, said (at page 349):
So I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open.
Megarry J. concurred in the result, thinking that the plaintiff was entitled to the full statutory period to bring his action. He concluded (at page 356):
If the act to be done by the person concerned is one for which some action by the court is requisite, such as issuing a writ, and it is impossible to do that act on the last day of the period because the offices of the court are closed for the whole of that day, the period will prima fade be construed as ending not on that day but at the expiration of the next day upon which the offices of the court are open and it becomes possible to do the act. In this appeal, there is nothing in the facts of the case which ousts the prima facie application of this exception, which accordingly applies. I therefore concur in allowing the appeal.
It would seem to me also that this approach is well within the spirit of section 11 of the Interpre tation Act, R.S.C. 1970, c. I-23 which deems every federal enactment to be "remedial", and directs that it "shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."
The appellant also relies upon the definition of "holiday" appearing in section 28 3 of the Interpre-
3 28. In every enactment
"holiday" means any of the following days, namely, Sunday; New Year's Day; Good Friday; Easter Monday; Christmas Day; the birthday or the day fixed by proclamation for the celebration of the birthday of the reigning Sovereign; Vic- toria Day; Dominion Day; the first Monday in September, designated Labour Day; Remembrance Day; any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiv ing; and any of the following additional days, namely:
(Continued on next page)
tation Act. We were told that as Christmas Day and Boxing Day in 1982 fell on a Saturday and Sunday respectively, the terms of the collective agreement covering employees of the Board sub stituted December 27 and 28 as "holidays" and as a consequence the office of the Board was closed on those days. Counsel urges that December 28 be regarded as a "holiday" thereby bringing into play subsection 25(1) of that statute. It provides that where the time limited for doing a thing expires or falls upon a holiday "the thing may be done on the day next following that is not a holiday". Special emphasis was placed on paragraph (a) of this definition and especially on the words "any day that is a non-juridical day by virtue of an Act of the legislature of the province." Counsel drew attention to certain Ontario regulations dealing with civil service holidays including the substitut ing of regular working days for holidays that fall on a Saturday or Sunday and to the definition of "holiday" and its application to the closing of Supreme Court of Ontario offices as was provided in section 92 of the Judicature Act, R.S.O. 1980, c. 223 with a view to showing that December 28, 1982 should be regarded as a holiday. In view of the conclusion I have reached by taking the common law route, I can see no useful purpose to be served by considering this alternative argument.
I have concluded that the Board erred in law in deciding it could not hear the appeal because it considered the notice of appeal was filed out of time. In my opinion the notice was timely and, accordingly, the Board possesses jurisdiction to hear the appeal on the merits. I would therefore set aside the decision of the Board dated April 12,
(Continued from previous page)
(a) in any province, any day appointed by proclamation of the lieutenant governor of the province to be observed as a public holiday or as a day of general prayer or mourning or day of public rejoicing or thanksgiving within the province, and any day that is a non-juridical day by virtue of an Act of the legislature of the province, and
(b) in any city, town, municipality or other organized dis trict, any day appointed as a civic holiday by resolution of the council or other authority charged with the administra tion of the civic or municipal affairs of the city, town, municipality or district;
1983 and would refer the matter back to it to hear the appeal on the merits.
THURLOW C.J.: I agree. HEALD J.: I agree.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.