A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent. That’s because any given time of day isn’t a period of time, but simply the boundary between blocks of time. For example, 9:00 a.m. is the boundary between the eight-o’clock hour and the nine-o’clock hour. Because a point in time occupies no time itself, it’s impossible for an action to take place at a point in time, as opposed to a fraction of a second before or after, although the time taken to perform the action might happen to straddle the point in time. (I don’t recall how Sydney reacted to this stunning bit of news, but by now she’s used to my pointyheadedness.)
I was reminded of this when, during last week’s Calgary seminar for Petro-Canada and Fraser Milner Casgrain, Jane Sidnell, an FMC partner, asked me whether a bid that had to be submitted at a given time would still be timely if it was submitted no later than a minute after the specified time. At the end of the seminar Jane gave me a photocopy of a text discussing a couple of Canadian cases relating to this issue; little did she know what fun I’d have with it.
Smith Bros.
One case was Smith Bros. & Wilson (B.C.) Ltd. v. B.C. Hydro, 1997 B.C.T.C. LEXIS 4518, an opinion issued by the Supreme Court of British Columbia. In this case, the advertisement stated that bids were to be submitted “until 11:00 a.m.” and the instructions to tenderers specified that bids were to be submitted “no later than 11:00 a.m.” The court held that because Smith Bros. had submitted its bid sometime during the minute after 11:00 a.m., its bid was late.
Bradscot
The other case was Bradscot (MCL) Ltd. v. Board of Education (Roman Catholic Separate) of Hamilton-Wentworth, 1999 O.A.C. LEXIS 81, a decision by the Ontario Court of Appeal. In this case, the deadline for bids was “Friday, May 8, 1998 at 1:00 p.m.” (Italics in original.) The question was whether a bid submitted 30 seconds after 1:00 p.m. was timely. A competing bidder said that it wasn’t; the school board said that it was, in that any bid submitted before 1:01 p.m. would have been timely.
The lower court held that the bid had been submitted in time, saying as follows:
In my opinion when it is stated that some deed is to be done “at 2:00 p.m.” the time is for that minute and the act is not overdue until the minute hand has moved off the 12 hand to the :01 position. … I am of the view that had it been the intention of the Board or of the architects who drew the invitation to tenderers that a tender be made in strict manner suggested by the applicant, they would have expressed the time as 1:00:00 and would have used the more stringent words throughout.
The appellate court stated that “In formulating a rule I do not rely on any distinction in the meaning of the words ‘only until’, ‘at’, and ‘not later than’. In my opinion, these words are used interchangeably in the instructions to tenderers.” It went on to say that “I do not think that there is one ‘right’ interpretation of the words ‘at’, ‘only until’ or ‘not later than’ in the instruction to tenderers.” The appellate court noted that the position of the lower court and that of the court in Smith Bros. were both reasonable, but it elected to defer to the judgment of the trial judge.
My Analysis
My take on this? That the court in Smith Bros. was right and that the court in Bradscot reached a reasonable conclusion for the wrong reason.
In Bradscot, the appellate court was simply wrong to say that the prepositions in question are interchangeable and don’t have a clear meaning. The meaning of until 1:00 p.m. is in fact clear—the period in question ends at the boundary between the first and second afternoon hours. Hence the court in Smith Bros. got it right.
But at 1:00 p.m. means something different. Instead of designating the end point of a period in time, it designates the time when action is to be taken. But as I explained to my daughter, strictly speaking it’s impossible to take a given action at a stated time, because any stated time constitutes a boundary between blocks of time. The best you can hope for is that the stated time will occur during the short period of time it takes to perform the action. Otherwise, you’ll always be early or late.
By contrast, using at with respect to a time of day doesn’t raise this problem if you’re dealing with status rather than action—You must be in the room at 1:00 p.m.—or if you’re stating the end of a period—Your shift ends at 8:00 p.m.
The illogic involved in using at to specify when actions are to occur doesn’t raise a problem in casual contexts, where no one expects extreme precision. But when money is at stake, as is the case when you’re submitting a bid or taking some other contract action, extreme precision is the norm.
In Bradscot, the lower court unwittingly opted for a sensible solution. If strictly speaking one can’t take an action at 1:00 p.m. but only before or after or both, it makes sense to give extra time to any party required to take an action at a certain time. Giving the bidder an extra minute certainly seems reasonable, but it’s not a solution required by semantics.
As always, my interest in such matters is how drafters can avoid this sort of uncertainty. In this case, the answer is easy—never use at to specify a deadline for submitting bids or taking any other contract action. Instead, specify either an ending point in time, using until, no later than, or before, or beginning and ending points in time, using between.
I wouldn’t follow the suggestion of the Bradscot lower court and specify deadlines in hours, minutes, and seconds. That does nothing to cure the illogic involved in using at to state a deadline for taking an action.
My first thought on reading Smith Bros. was that it was wrong. I think this rests on my interpretation of “11.00”, which I see not as a moment in time, but as a period of one minute. As I read it, something submitted 30 seconds after 11.00 has started is still submitted at 11.00. But I also see the perfectly good logic in reading it the other way.
I think I completely agree with your general point – the point is to eliminate the uncertainty. The word “before” seems to cover both interpretations (whereas “until” and “no later than” may not), so I will probably tend towards that in future.
Art: Thanks for mentioning before—I’ve added it to the prepositions I recommend at the end of the post.
You think that if you have to do something by a stated time, you always have an extra minute? I’ve never heard that, and I’ll only accept it if you can point to some authoritative non-legal reference work to back you up.
Ken
Interesting post and topic, and particularly interesting that the school board in the Bradscot case measured seconds.
I agree with the need to avoid “at”–which directs a very precise time at which something is to occur–but I also agree with Art that, realistically and in many cases, it includes that extra fifty-nine seconds after the precise deadline. For example, court filings in our jurisdiction have a specific time stamp to indicate filing date and time. It does not measure seconds. If I were directed to file a document “no later than 11:00” but file it forty-five seconds after 11:00, the file stamp would read “11:00”. I would then have filed it, for legal purposes, at 11:00, because that is what the court filing stamp indicates.
Bottom line? You’re right to be correct and precise, but we’re also lucky that many places don’t measure by the second.
Greg: I think that your point about date-stamping does explain where the notion arose that a point in time includes the following 59 seconds. But compromises made in recording time have no direct bearing on how one measures time. They may influence a court, as in Bradscot, but it would be risky to count on that being the case. So as always, I say stick to a usage that doesn’t involve rolling the dice. Ken
I agree that the phrase “no later than 11:00” includes all 60 seconds of the 11:00 minute. This is similar to a deadline “no later than April 15” includes all 24 hours of that day.
I think where Ken is off in his argument is the assumption that the time stated is intended to represent “a point in time.” If something is “due by April 15,” it does not necessarily mean April 15, 12:00:00AM. I think most would presume to have the entire day included in the deadline, much like the court in Bradscot presumed to have the entire minute.
CK: Regarding your first paragraph, you’re comparing apples and oranges. No one could argue that a day is anything other than 24 hours long, so it has no bearing on the implications of stating a time of day.
Regarding your second paragraph, I believe you misunderstand the implications of due by April 15. The question courts ask in construing such phrases has nothing to do with whether someone has an extra minute. Instead, it’s whether the by is inclusive or exclusive. See MSCD 9.8.
Ken
It is only an “extra minute” if 11.00 is understood as point in time. I completely see Ken’s logic, but at the same time I know that if someone tells me the time is “11.07”, we are, by their watch, somewhere in the minute between 11.07.00 and 11.07.59 (inclusive). There are some parallels between the apples and the oranges.
But clearly this debate only serves to reinforce the main point – a document should be drafted in a way that produces the same result under both interpretations.
Art: Your 11:07 example is interesting, but I’d say that it’s directly analogous to Greg’s date-stamping example and so has no bearing on at 11:07. Ken
You’ll note from the above trackback that GeekLawyer thinks that my conclusions in this post are “wrong.” I’m all for the marketplace of ideas, but Blawg Review isn’t a forum for debate. Using it as an opportunity to denigrate someone else’s ideas, without even any attempt at explanation, is crass. I’ll leave it at that.
What Greg’s and Art’s examples show, and what I am trying to describe, is that when someone says “7:00”, they often are speaking of the inclusive minute from 7:00:00-7:00:59, much like my example of a calendar date deadline. So the contractual confusion would seem to be stemming from whether or not the reader views “7:00” as a point in time as Ken would contend or a period of time from 7:00:00-7:00:59 as we see many common usages do.
CK: As you note, you’re making the same point as Art.
When I tell someone I’ll meet them at 7:00 a.m., I certainly don’t have in mind that I’ll meet them sometime in the first minute of the 7:00 a.m. hour.
Perhaps a better example would be someone telling you that the bomb will go off at 7:00 a.m. I think it would be unreasonable to assume that that means that the bomb will go off sometime during the first minute of the hour.
Ken