Days After

Introduction

Legislation frequently requires that an action be taken within a prescribed period, and frequently expresses that period as being within a certain number of days after the occurrence of a particular event.

This can be expressed in two ways:

1. "within X days after the happening of Y"

2. "within X days after the day on which Y happens"

However, as the rules governing time periods in the Interpretation Act apply only to the second of these two cases, the results of each case may be different and drafters must therefore take care to express the desired period appropriately.

Particular care should be taken in drafting transitional provisions that require or permit certain actions to be taken within a fixed period after the coming into force of the enactment.[1] Because of the rules regarding the coming into force provisions, there can be differences between reader expectation and legal operation in such cases.

Recommendations

For the reasons discussed below, it is recommended that:

1. Drafters should verify with instructing officers exactly when it is intended that a period following the happening of a given event is to end, and describe the period in relation to a specified day, because of the effect of ss. 27(4) and (5) of the Interpretation Act.

2. Periods following the coming into force of an enactment should be drafted using the expression "X days after the day on which this Act/Regulation/provision comes into force", and should never be expressed to be within X days after the "time" or "date" of coming into force, because of the reference to a specified "day" in ss. 27(4) and (5) of the Interpretation Act.

Discussion

Subsections 27(4) and (5) of the Interpretation Act provide that

These provisions operate, however, only when a particular day is specified. Because of this, a different result is obtained if a day is specified than if one is not.

Consider the following examples, which for ease of calculation use the period of one day:

1. A person may file a document within one day after receiving it.

2. A person may file a document within one day after the day on which it is received.

Assume the document in question is received at 3 pm on April 15, 2002.

Under Example 1, interpreted literally, one could justifiably conclude that the person has until 3 pm on the 16th to file the document. Given the context, however, some readers might assume that they can file any time before the close of business on the 16th. Still others might interpret the provision as giving them until midnight on the 16th to do the filing in question.

Under Example 2, because a day is specified and ss. 27(4) and (5) provide that the specified day (of receipt) is not counted, the person clearly has one day after the 15th — i.e., until midnight on the 16th — to file the document.

The same analysis applies to whatever period of time is chosen. If a day is specified (Example 2), the period will be longer than if one is not (Example 1).

To avoid the uncertainty inherent in Example 1, periods should be drafted to commence "within X days after the day on which Y happens". Referring to a specified day takes advantage of the Interpretation Act to lend certainty to the provision in question.

The situation is arguably unclear when a period is drafted to begin after the "date" on which X happens,[2] since ss. 27(4) and (5) refer to a specified "day" and not "date". While it is surely the case that a "date" is a "day," drafters should prefer referring to "day" rather than "date" when describing a period of time in order for there to be no doubt that the Interpretation Act rules apply.

The difference between specifying a day and not doing so is even more pronounced when an action is to be taken within a fixed period after the coming into force of an enactment or provision. Such language is often found in transitional provisions.

The time at which a provision comes into force is provided for by s. 6(1) of the Interpretation Act:

Consider the following examples, which again for ease of calculation use the period of one day:

1. A person may register a previously unregistered document within one day after the coming into force of these Regulations.

2. A person may register a previously unregistered document within one day after the day on which these Regulations come into force.

Assume the regulation in question came into force on April 15, 2002.

Under Example 1, because the regulation comes into force at midnight of the 14th,[3] the person has until midnight on the 15th to register the document.

Under Example 2, because ss. 27(4) and (5) provide that the specified day (of coming into force) is not counted, the person has one day after the 15th — i.e., until midnight on the 16th — to register the document.

Once again, the same analysis applies to whatever period of time is chosen. If a day is specified (Example 2), the period will be one day longer than if one is not (Example 1).

Because unsophisticated readers of legislation are unlikely to be aware of the effect of s. 6(1) of the Interpretation Act on the time of coming into force of an enactment, drafters should also not include references to the "time" when an enactment comes into force. In fact, most readers will misinterpret a stated period after coming into force unless it is captured by the rules set out in ss. 27(4) and (5) of the Interpretation Act. To ensure that those rules apply, therefore, periods following coming into force should use the expression "X days after the day on which this Act (or Regulation) comes into force".

  [1] An informal survey indicates that about 40% of provisions establishing a period after coming into force use the first type of reference, while the rest use the second.

  [2] See, for example, s. 10(2) of the Tobacco Reporting Regulations:

(2) The manufacturing procedures shall be provided

(a) in the case of a consumer tobacco product being manufactured at the time these Regulations come into force, within 90 days after that coming into force date; and

  [3] At 0000 hours on the 15th under the French version of s. 6(1)

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