legal reasoning and time-of-day

699156 at 699156 at
Wed May 21 22:26:06 UTC 1997

This isn't strictly on-topic, but I though readers of this list
would be interested in a recent summary trial in the Supreme Court
of British Columbia, Smith Bros. & Wilson (B.C.) Ltd. v. British
Columbia Hydro and Power Authority. A key issue was the legal 
meaning of the term "11:00 a.m.". The ambiguity arose because a 
time of day expressed in that format is ambiguous: it can refer 
either to an instant (i.e. exactly eleven hours after midnight) or 
a 60-second period (i.e. the period more than eleven hours after 
midnight but less than eleven hours one minute after midnight).
Here, a $13-million contract turned on this fine distinction.

The defendant B.C. Hydro had issued tender instructions for the
contract stating a closing time of "11:00 a.m. local time". The
bid of the plaintiff Smith Bros. and Wilson was submitted when
B.C. Hydro's clock said 11:01, and stamped accordingly. However,
at trial, there was evidence from one of B.C. Hydro's own engineers
that the clock was approximately one minute fast, compared to
Pacific Standard Time determined with reference to the U.S. Naval
Observatory clock in Washington D.C. This part of the judgment 
makes interesting reading, because the engineer had done the
testing for his report two weeks after the day the tenders were
due, but was still able to find (based on certain assumptions)
the clock's differential on the tendering day.

Since the clock was about a minute fast, the plaintiff's bid was
actually submitted at 11:00, not 11:01. But this still wasn't
good enough, because the court held that 11:00, in its everyday
meaning of "the period from 11:00:00 to just before 11:01:00", was
not what was meant by the tender instructions. Rather, the tender
instructions were read to mean bids could be submitted up to 10:59:59,
but not one second after that.

The judge stated:

   [33] B.C. Hydro and Smith Bros. cited cases in which 
   expressions like "until the 1st day of July next", for example,
   were used.  See: Re Smith and McPherson (1921), 51 O.L.R. 457
   (App. Div.).  The purport of those decisions is that the whole
   of the named day was intended to be included.  The argument is
   that if the naming of a day imports the whole of that day, the
   stating of time in hours and minutes should import the whole of
   that minute as being included in the calculation of the time
   limit.  I do not agree with this analogy.  In my opinion, 11:00
   a.m. describes a precise point in time, not the time that
   exists between 11:00 a.m. and 11:01 a.m., whereas, when a date
   is stated, it is common knowledge and usage that that named day
   is a 24 hour period from midnight to midnight.

The full text of the reasons for judgment is available on the web at

and there is an article on the case in The Lawyer's Weekly, 21 March 
1997, p. 16.

M. Englander

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