P. F. Collier & Son Ltd. v. The Deputy Minister of National Revenue for Customs and Excise, [1986] 2 CTC 375

Stone, J.:—I think this appeal which is brought under subsection 48(1) of the Customs Act,* [1] 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 60-day time limit laid down by subsection 47(1) of the statute! [2] when it was filed on Wednesday, December 29. The appellant could not file the notice on either the 27th or 28th which were the 59th and 60th 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 him the full 60-day period intended by Parliament he had, I think, until the next day when the office was open to file his notice and he did so.

I do not challenge the principles of the decision of Thorson, P. in Horowitz v. M.N.R., [1962] C.T.C. 17; 62 D.T.C. 1038, 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] 1 Q.B. 336 (C.A.). That case 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 commenced 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. concurred, said (at 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 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 facie 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 Interpretation Act, R.S.C. 1970, c. 1-23, 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 Interpretation 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 substituted 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 substituting 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. 228 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 elated April 12, 1983 and would refer the matter back to it to hear the appeal on the merits.

Appeal allowed.