Videos: “days”; “shall” vs “may”; “irregularity”

In this week’s instalment of videos, Heather Douglas and I talk about several nitty gritty bits of vocabulary that is quite essential to navigating a lawsuit at the Ontario Superior court.

  1. “How are Days counted in Litigation”

This was quite surprising to me when I was a newcomer to litigation. I just assumed that if the rules say that you have to do something in 10 days, then it’s just that: ten business days. But! As it turns out, it’s not that simple. (Of course not.) The word “days” can include weekdays or holidays, depending on whether the time period in the rule is 7 days or under.

The actual rule is here: (Note, rules change all the time. The text below is current as of time of blog, but go to CanLII to access the latest version-

3.01 (1) In the computation of time under these rules or an order, except where a contrary intention appears,

(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;

(b) where a period of seven days or less is prescribed, holidays shall not be counted;

(c) where the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday; and

(d) service of a document, other than an originating process, made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday.  R.R.O. 1990, Reg. 194, r. 3.01 (1); O. Reg. 394/09, s. 3; O. Reg. 438/08, s. 4.

(2) Where a time of day is mentioned in these rules or in any document in a proceeding, the time referred to shall be taken as the time observed locally.  R.R.O. 1990, Reg. 194, r. 3.01 (2).

2. “Shall” vs. “May”

Some rules dictate certain things must happen (“shall”). Some rules provide the decision maker (judge, master or registrar) with some discretion. However, in practice, things that “must” be done by the court staff may not necessarily be done, due to backlogs. Also, customs within the legal profession also play a part on whether mandatory rules are actually “obeyed” in reality. Watch Heather Douglas explain further in this video:

3. “Irregularity”

Often people involved in litigation see things in terms of black and white, right and wrong. When one is in an adversarial process, one tends to see the rules as something that protects your rights. One also tends to use the rules as a means of attacking the opponent. For example, if the other side did not follow through with a rule, one takes that as an opportunity to point fingers at the other side. Calling out the other side’s disobedience of the rules to the court (by way of “motions”) escalates the conflict.

It appears that the people who drafted the rules anticipated that there will be occasions when parties do not comply with the rules. This is referred to as an “irregularity”, and there are rules to deal with non-compliance. And it is not necessarily that whenever a party does not follow a rule, that they will be harshly punished.

In this video, I ask Heather Douglas to explain the actual rule, reproduced here: (Note, rules change all the time. The text below is current as of time of blog, but go to CanLII to access the latest version-

2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. R.R.O. 1990, Reg. 194, r. 2.01 (1).

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