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.