January 12th Court Hearing

January 9th, 2017

Later this week we’re at a Hearing in the Federal Court of Appeals.  The Canadian Standards Association (CSA) has filed five motions with the Court, and all of these will be heard this Thursday, Jan 12th.

The CSA motions are significant, certain of these have the power to bankrupt us, destroying our defence of public law and, with it, our family business.  This Hearing then, is the biggest date thus far in our legal process.


Background

Regular readers are familiar with the issues but we’ve usually got new visitors at RestoreCSA, so we’ll briefly give some context.

PS Knight Co is a half-century old family business.  We’re actually celebrating our 50th year in 2017.  Unlike PS Knight Co, the CSA is a Federal Agency reporting to the Minister of Industry via the Standards Council of Canada.

PS Knight Co’s only line of business is the publication of electrical guidebooks.  These explain and instruct on Canada’s electrical laws, enabling readers to wire their basements, bathrooms, etc. safely and in compliance with electrical law. 

In explaining, for example, how much distance is legally required between a plug outlet and a sink, we specifically quote that distance.  Without knowing that distance people couldn’t comply with the law requiring that distance.  And that’s where CSA gets upset.

The CSA drafts and amends Canada’s electrical laws.  They think that because they draft the law, they privately own the law.  And if they own the law privately, then nobody, including PS Knight Co, can reference the law without paying them for the right to do so.

In 2012, CSA launched a litigation against PS Knight Co for copyright violation, claiming that we were effectively stealing from CSA by referencing the law.

Of course, CSA publishes a competitor guidebook and if PS Knight Co were forced out of business through litigation, then CSA would have a monopoly in that market.  They could push their prices to the ceiling and everyone who uses the law would have to pay CSA whatever prices they wanted.  That’s CSA’s incentive.


Problems in the CSA Argument

Claiming to own the law privately is a weak argument.  That the public has an unfettered right to know the laws that apply to them is a pretty basic right, it’s foundational to democratic society and it’s very longstanding, it goes all the way back to the Magna Carta.  It’s a matter of principle, and in Canada that principle takes the form of Queen’s Printer Copyright.

Our books are published under Queen’s Printer copyright.  This is the copyright used by governments in publishing legislation, and Queen’s Printer laws are unambiguous on such matters.  The Alberta version reads as follows; 

“Alberta Queen’s Printer permits any person to reproduce Alberta’s statutes and regulations without seeking permission and without charge”

Then there’s the CSA authorization of 1969.  In the earliest days of PS Knight Co, CSA furnished us with a written declaration, signed by their executives and on their letterhead, fully authorizing us to use these texts in any way, for any purpose, and unrestricted in duration, etc. etc.  Most critically, their authorization wasn’t dependent on the text being passed into law.  Rather, it was a global authorization.  It was furnished on the assumption by CSA that the text would at some point be law, so that text is like legislative deliberation.  Or, as CSA put it at the time, “it’s public domain anyway.”

In this, we’re being sued by CSA for doing exactly what they authorized us to do in the first place.  It’s not breach of contract; we’re being sued for honouring a contract.

So what are they doing about the weakness of their position?  Well, they’re focus is on process.


CSA’s Use of Process

Since 2012, the CSA has launched three identical lawsuits against us.  That is, they’ve got different titles and they were filed in different Courts, but the contents of each lawsuit are a cut-and-paste job, the text of each being the same.

The goal was to use the legal process itself as a weapon to bankrupt PS Knight Co before any of CSA’s silly arguments were scrutinized in Court.  The CSA has been working to make each of their litigations as expensive as possible.

One of these add-on litigations was an injunctive relief case brought in 2015.  They won that case.  The Judge Ruled that CSA does indeed own legislation privately, stating that copyright in legislation “does not belong to the Crown.”  This Ruling effectively struck Queen’s Printer laws all across Canada and privatized the ownership of most Canadian laws.  That’s surreal in a democracy.

Then that Judge ordered us to pay $100k to CSA for their trouble.


What Happens on Jan 12th?

The Jan 12th hearing is just a motions hearing, albeit a rather decisive one. 

In the wake of CSA’s injunctive win, we filed an appeal of the decision and requested a stay of costs, pending that appeal.  That’s usual by the way, if the Ruling is under appeal then by convention the cost particulars thereof are likewise stayed.

In this case however, CSA has filed to enforce the Ruling for $100k in costs without regard to the appeal. 

Then they filed a Motion for Security of Costs, demanding that we place even more money into a third party account to compensate CSA in the event of a PS Knight loss on appeal.  That’s another $100k, on top of the previous $100k.

The CSA received PS Knight financials as part of the Court process, so they know how much financial damage we can absorb.  We’ve endured nearly half of a decade of paying to defend against CSA’s various litigations against myself, my company and my late father, on top of CSA’s other multiple filings such as the WIPO and CIRA cases.  The CSA’s been targeting our distributors too, telling them that it’s illegal to do business with us.  And while CSA’s statements aren’t true, their mucky move has cost us revenue.  As a result, we are, you know, a bit tight with money.  They know this too.

In all, the CSA has filed five motions for hearing on Jan 12th, two of these could bankrupt PS Knight Co.  And that’s their whole point.


Why is this Significant?

We have not been inside a Courtroom on the litigation that started this saga five years ago. 

The CSA has been using the process to grind us down.  As we publicly predicted nearly four years ago, “their tactical approach has been to bleed us financially.”  That’s the only ploy they’ve got.  Well, it’s either that or behaving honourably.

If the Court should Rule in CSA’s favour on January 12th, on either of their financial motions, we will be wiped out.

If that happens, we will have been denied the right of appeal on the injunctive Ruling and, more significantly, we will have been denied the right to defend ourselves at all in the original litigation.  We will have been bankrupted before even arriving in Court.

Further, our bankruptcy will eliminate the only party appealing of the private law Ruling, effectively entrenching private ownership of legislation in Canada.

It’s a big day on Thursday. 

The irony is that a win for us on Thursday largely clears the pathway to trial.  These motions are CSA’s big hurrah; after these there’s not much they can do to delay the trial. 

If they win, we’re wiped out.  If we win, CSA’s in big trouble.

And that’s why it’s a big day on Thursday.