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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we will talk about the computation of time as is required by the Rules of Civil Procedure so you can calculate the time correctly with respect to your civil proceedings in Ontario. We begin with our usual disclaimer that this course is not legal advice so if you have any specific questions regarding your issues you must contact a lawyer, a paralegal or the Law Society of Ontario for any referral.

Why do we need to correctly compute the time? Why is that important? It’s important because (1) if you are not filing or serving or delivering the documents pursuant to the Rules and if you try to file a document with the court office which is beyond the timeline prescribed in the Rules of Civil Procedure, the court office will simply not accept the documents.  They don’t have this discretion that if you are late in filing some documents and you are being polite to the court office staff that they will accept your documents—they will not.  They will simply abide by the Rules.  If you are late or if you have not followed the timeline within the Rules then you will have to either obtain consent of the parties for the late filing or you’ll have to get a court order to change the timeline or file the documents beyond the time line that is prescribed in the Rules. It is very important that you follow the timelines within the Rules at the outset. Now Rule 3 in the Rules of Civil Procedure is the one that deals with the computation of time.  I will give you some of the important aspects of that Rule.  Few things that you want to keep in mind are that when you are calculating time between 2 events you exclude the 1st day of the event (the 1st event) and then you include the last day off the 2nd event. (2) Secondly when you are given a time period which is less than 7 days you do not count holidays.  You want to keep in mind that when time expires on a holiday, then whatever you are required to do, whatever expiry date is on the holiday you can do so on the next day—which is not a holiday. For example, if the last day of serving some document was Sunday then you could do it on Monday—if Monday is not a holiday.  (3) The other part that you want to keep in mind is that any documents that you serve after 4 pm or on a holiday—they will be considered as if they are served on the next day, which was not holiday. That’s important 4 p.m. is your cut-off time period of serving the documents on the same day.  The only exception to that is a document which is an originating process—that is not considered here. Now, if a Rule provides for a time of day in the specific delivery or service of document then you have to treat that time as the local time in the place where you are serving that document.  

Let me explain these Rules by example so that it will be a bit more clear to you how you actually compute the time.  Let’s take the example of service of statement of defence which is a common document that you may need to serve if you’re defending a court action.  The timeline for service of documents is in the Rule 18.01, which essentially says that if you have been served with a statement of claim within Ontario, then you have 20 days from when the claim was served, to deliver your defence/to serve your defence and file it with the court.  Certainly, the filing may be delayed a bit as long as you’re not noted in default.  But certainly the service of the statement of defence has to be done in 20 days. How do you calculate the 20 days? Let’s take it by way of an example.  Let’s say that the claim was served on you on April 1st 2019.  1^st event that occurred which was the service of claim was April 1st 2019. 2^nd event which is going to happen is the service of defence.  If you calculate 20 days you exclude April 1^st, then you calculate 20 days it falls on April 21^st 2019. April 21^st 2019 is actually a Sunday.  The 2^nd event is a holiday.  Then, according to the Rules, statement of defense now is due by April 22^nd 2019.  You excluded the 1^st event, you included the 2^nd event—it so happens that the 2^nd event falls on a holiday.  The next working day is not a holiday—April 22^nd.  Your statement of Defense is due on April 22^nd 2019.

Let’s take another example.  This is service of pretrial conference brief under Rule 50.04.  Why I’ve chosen this example is because this is a time period which is less than 7 days. A pretrial conference brief needs to be served and filed with the court at least 5 days before trial.  Let’s take another example of that.  Let’s say the pretrial is scheduled for April 22^nd 2019.  You have to serve it 5 days before April 22^nd 2019.  I have calculated this to be April 15^th 2019. And how did we do that—we excluded the 1^stevent which was April 22^nd 2019 and then we do not count the holidays.  Therefore when we include the 2^nd event the 5 days falls on April 15^th 2019.  A lot of times people make this mistake. They end up counting the holidays and then they assume that their time period for delivering the pretrial conference brief would have been April 17^th—which is not the case.  If you show up on April 17^th or 16^th and try to file your pretrial conference brief at the court office it will not be accepted.  It’s very important to calculate these time periods correctly.

Now what happens when you are late in serving, filing or delivering a document?  What are your options? You generally have 3 options under Rule 3.02.  (1) First is that the court has this power to grant you an extension in time or abridgement which is prescribed under the Rules.  You can always bring a motion to the court and you have to bring a motion.  It’s a motion before the court and you present your case and explain to the judge or master why do you need extension and you justify it.  The court has the power to grant you that extension or abridge the time period.  (2) The 2nd part that you want to remember is that when it comes to the time periods within the Rules of Civil Procedure, if you have consent of all parties then you can file that consent.  For example, in a delay in filing some document if you attach a consent of all parties (that all parties are permitting you to file a specific document with delay), then the court office will accept it.  (3) The 3rd point you want to remember is that if your matter relates to an appeal, then any extension or abridgment in time that you need from the court, it has to be granted by an Appellate Court Judge.  A Superior Court Judge will not be able to grant you this extension.  In the cases of Appeal you’ll have to end up presenting your situation to an Appellate Court Judge and seek his or her approval.

In conclusion, what I want you to keep in mind is that you always want to carefully compute your timelines.  Obviously, you don’t want to wait till the last day.  If something is to be filed at least 5 days it is Ok to file that document 10 days in advance because if you wait till the last minute or the last day you may realize that when you arrive at the court office you may not have the complete documents or you may not have the documents in the form that the court office will accept.  Then you don’t have much time to fix that mistake and then go back and file your documents.  You ideally don’t want to wait till the last day but at the same time you want to make sure that you compute your time period correctly so that you don’t have any mistakes.  Remember that the court office cannot avoid the Rules.  If the Rules dictate that a certain time period needs to be followed, the court office will simply follow that.  They do not have any discretion in bending those Rules in your favor.  Once you’re computing the time period correctly and you’re following the Rules you avoid unnecessary hassle of having to bring a motion or asking other parties to consent for the delayed time period.  Depending upon the circumstances you may or may not get a court’s approval or you may or may not get consent from the parties.  This is a simple procedural thing about calculating the time and you want to make sure that you’re not off the time periods that is prescribed under the Rules of Civil Procedure.

Hopefully that helps you in understanding the computation of time within the Rules of Civil Procedure and we will see you in the next lecture shortly.