Notice Periods When the Related Legislation is Silent
Legislation is notorious for being hyper-granular and specific one moment, and then vague and unclear the next. Sometimes the issue you’re interested in is entirely absent from the act. This can often make interpretation very difficult.
So what happens when the piece of legislation you are relying on is silent on an issue? One good example is notice periods – specifically, how to calculate them. Your first instinct may be to look to the rules of civil procedure; however, this does not always lead you to the solution.
For example, the Condominium Act has various provisions that require notice to be given to interested parties. Section 85(4) of the Act states, “at least 10 days before the day a certificate of lien is registered, the corporation shall give written notice of the lien to the owner whose unit is affected by the lien.”
The question is: how does one calculate the days required for proper notice? Unfortunately, the Condominium Act does not answer this question, so we must look elsewhere. The solution to cases such as this, or for provisions in the Construction Lien Act for instance, is the Legislation Act, 2006. Section 89 of the Legislation Act provides guidance on computation of time for notice periods. Section 89(3) states: “A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.”
In a recent Condominium Act matter, notice could be effected by mail. In the condominium corporation’s by-laws, it stated that notice by mail is effected the day it is delivered to the post office or mail box. So, based on the above requirements, my first event was mailing the notice and my second event was registering the certificate of lien. The day I sent the notice was excluded from my computation of the ten days; however, the day I registered the certificate was included. There are other notice provisions in the Legislation Act that should also be consulted.
The bottom line is to make sure you properly calculate the notice period, as a failure to do so could lead to improper notice.
For more information about notice, or any kind of real estate issue, contact the Real Estate and Development Group.