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.
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.
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 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.