Now that everyone is working “24/7”, the term “business days” seems to have lost its meaning.
The strong preference today would be to eliminate that expression because it is so very unclear.
The Courts have generally not had occasion to examine the concept, unless someone misses out on a date for something which is very important. More recently, considerations of the term have been undertaken by specific administrative Tribunals. They need to interpret the law and usually a specific regulation within their own industry. Usually, there is already a definition of “business days”, so that will apply, but it is not of general application.
It just gets worse when you are talking about “banking days”. It is important to know that there is no such definition in the Bank Act, and now, you will find that many banking services are available 24/7.
Use Your Own Definition
This, at least, is one approach. Exclude Saturdays, Sundays and Statutory Holidays in Ontario. If your own definition is specifically included in your contract, then it will be applied. It doesn’t matter whether it’s right or wrong, or of general application; in your own case, it will apply.
Ontario Court of Appeal
This type of case doesn’t come up all that often. The last time Ontario’s highest Court had a look at this was Goldstein et al. v. Grant 18 O.R. (2d) 241 (1978).
In that case, the Court quoted with approval, the following statement:
“…. I am of the opinion that in the absence of any definition in a document, the word “business day” in such document means a day other than a Sunday, public or statutory or civic holiday: Nelson v. City of London, [1944] O.W.N. 455, [1944] 3 D.L.R. 604, 82 C.C.C. 73.”
So, this means that Saturdays are business days. They don’t have to be, but you would have to come up with your own definition if you want to exclude them.
Real Estate and Business Brokers Act, 2002
This is the Act which regulates the real estate industry. There is no definition of “business days” in the Act.
However, the matter does arise when it comes to placing the deposit in the Brokerage’s trust account. The Brokerage has 5 business days under Regulation 567/05.
Let’s have a look at s.17:
Deposit within 5 business days
17. (1) If an amount of money comes into a brokerage’s hands in trust for another person in connection with the brokerage’s business, the brokerage shall deposit the amount in the trust account maintained under section 27 of the Act within five business days.
(2) In subsection (1),
“business day” means a day that is not,
(a) Saturday, or
(b) a holiday within the meaning of subsection 29 (1) of the Interpretation Act.
That seems easy enough, a business day excludes Saturdays, and also excludes “holidays” as defined by the Interpretation Act.
This gets around the Saturday issue in the Goldstein case.
Interpretation Act
Here is the definition of Holiday in the Interpretation Act:
“holiday” includes Sunday, New Year’s Day, Good Friday, Easter Monday, Christmas Day, the birthday or the day fixed by proclamation of the Governor General for the celebration of the birthday of the reigning Sovereign, Victoria Day, Dominion Day, Labour Day, Remembrance Day, and any day appointed by proclamation of the Governor General or the Lieutenant Governor as a public holiday or for a general fast or thanksgiving, and when any holiday, except Remembrance Day, falls on a Sunday, the day next following is in lieu thereof a holiday.
That seems simple enough, business days (for the purpose of Regulation 567/05) will automatically exclude:
- Saturdays,
- Sundays, and
- Other listed holidays.
The “Wrinkle” in all of this
There used to be an Interpretation Act. It was in force at the time that the Real Estate and Business Brokers Act, 2002 came into force, namely 31 March 2006, but it was repealed a 16 months later on 25 July 2007. So, it is, no more!
Banking the Deposit Cheque
The advice would seem to be: err on the side of caution. Place this cheque in the Bank asap. Don’t wait until the last minute and count out the days.
Figuring out “Business Days”
Let’s assume that for some strange reason you really wish to use “business days” in your contract.
Relying upon the Goldstein case, a Saturday is a business day. Vendors and Purchasers are not governed by the Real Estate and Business Brokers Act, 2002, so they don’t really care. However, if it were applicable, and a Court were to apply the definition from the old Act which was repealed, then, Saturdays, Sundays and Holidays would all be “business days”.
But, there is no such Act anymore, so “business days” would just exclude Saturdays.
So, there we have it, four (4) choices:
- Every day is a business day except Saturdays, (567/05)
- Every day is a business day except Sundays, (Goldstein),
- Every day is a business day except Saturdays, Sundays and Holidays, (old Act),
- Every day is a business day, (old Act repealed).
Other Acts
The Vendors and Purchasers Act does not contain a definition, nor does the federal Interpretation Act.
Banking Day
The federal Bank Act does not contain a definition of “banking day”, so that not of any help here.
When Banks enter in contracts, and they need to deal with the issue of what constitutes a “banking day”, then they will insert their own definition into the agreement, and of course, that will govern. Here’s an example:
“Banking Day” means, in respect of any city and, as the context requires, the relevant parties to any relevant transaction, a day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in such city or in the case of relevant parties to a relevant transaction, the city or cities in which such parties have their executive or registered office and the city in which the relevant transaction is to take place.
The Internet
There was no such thing as the internet when the Goldstein case went to Court. Things have changed. Most regular banking can be undertaken on a 24/7 basis.
Going forward, the concept of “business day” appears to have lost its meaning.
Contract Documents
If you always switch to “calendar days”, then you won’t need your own definition. However, you will need to look at a calendar and figure out how many days you really need. If the time periods and the time limits otherwise come due on a weekend, and you are not pleased about that, then you should add a few more days to accommodate your needs.
Brian Madigan LL.B., Broker