Litigation Update - March 2018

March 5th, 2018

We had a huge Hearing on March 1st.  The Federal Appeals Court Hearing did indeed take place but the Justices reserved their Ruling, so we won’t know the result likely for a few weeks.

As to the Hearing itself, how things went and how the various legal presentations were received, we can’t really comment much.  Actually, “much” is the wrong word; we can’t comment at all on the Hearing’s particulars.  We’ll shortly have a Ruling to comment on and, one hopes, entertainingly.

In the interim, what follows is a quick summary of where we’re at in the litigation process.  So, here we go…..


T-646-15 Injunctive

This was the Canadian Standards Association’s (CSA’s) effort to stop us from releasing the 2015 edition of the Canadian Electrical Code.  Their Injunctive Motion in 2015 resulted in the infamous Manson Hearing, the ridiculous Ruling that legislation is privately owned (aka Manson’s Law), and gave rise to our appeal of Manson’s Law which was heard on March 1st, last week.

Critically, CSA included in their Injunctive Motion the claim that Queen’s Printer Copyright is illegitimate.  Thus, the main argument of their original 2012 lawsuit was subsumed within the 2015 Injunctive.  What that means is the Ruling that we’re waiting for will resolve the main issue of ownership of legislation. 

If we win this Ruling, the CSA has lost their main argument.  If we lose this Ruling, we’re likely wiped out.  You may recall CSA’s effort to bankrupt us in January 2017?  That was when they argued that even though Manson’s Law was under appeal, we should have to pay all the financial penalties right away, as though there was no appeal, and as though it were a sure thing CSA would win the appeal.  Well, we won reprieve from Court on that one, but all of those stayed penalties will immediately apply if we lose on the Ruling we’re waiting for.

More broadly, if CSA loses they won’t likely be granted leave to appeal to the Supreme Court.  Generally, the Supreme Court only reviews serious cases, not ill-considered claims to privately own the laws the Court is Ruling on.  Conversely, if we lose, and if we can somehow scrounge the money to pay Manson’s inflated fines, then we could appeal to the Supreme Court.  So we have at least a theoretical fallback, whereas CSA only has one in fantasy.


T-1178-12 Federal Case

This is CSA’s main case, the one they launched in 2012.  As noted above, most of the arguments of this case have been subsumed by T-646-15, but the one argument remaining within this case is the question of legitimacy of CSA’s grant of license to PS Knight to reproduce CSA standards prior to passage into law. 

Recall that in some jurisdictions (notably ON, BC and QC), there is a gap of several months between CSA’s updating of a law and the passage of these updates into law.  In that gap, those updates remain the intellectual property of CSA.  For PS Knight to publish quotations from them requires CSA’s permission to do so.

Of course, we have their permission, in writing, on their letterhead, signed by their senior executive.  The CSA then, has been suing us for six years for doing what they’d already authorized us to do.  Their case isn’t, you know, really solid.

This Federal Case has been paused during most of the T-646 case, but it’s now ramping up for trial later this year.  The trial may be a sleeper, depending on how the T-646-15 Ruling goes.


Ontario Provincial Case

This case is the most silly of all of CSA’s silly cases.  Back in spring, 2015, the CSA launched a series of duplicate litigations against us.  They were having a bit of a tantrum, really. 

They took the text of their T-1178-12 case, and duplicated it into the T-646-15 case, then into the WIPO (World Intellectual Property Organization) case, then into the CIRA (Canadian Internet Registry Authority) case, and then into the new and exciting Ontario Provincial Court case.  It was this shameless cut-and-paste litigation that spurred Justice Gleason to note CSA’s “paragraph for paragraph” duplication of litigations in her March 2017 Ruling.

Well, late in 2015 we argued before Ontario Court that CSA’s latest case was a copy-and-paste job, and that it wasn’t legal to file multiple identical cases against the same party in the same jurisdiction at the same time.  Annoyingly, the Court agreed, but let the case go ahead anyway.

Now, in 2018, we’re before the same Ontario Court later this spring, applying to have the Provincial case thrown out for abuse of process.  The CSA’s conduct is clearly abuse of process, but it’ll take a Court Hearing to see if the laws against such abuses are being taken seriously.

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In sum then, it’s a full year ahead.

It’s worth noting though, that none of this, absolutely none of it, was necessary.  None of the losses, none of the damage to business, nor damage to persons -none of this had to happen.  The only reason we’re in this mess is because CSA got greedy for other people’s money.

They tried a shakedown of PS Knight Co, and it didn’t work.  But they didn’t learn from their mistake.  So they launched a lawsuit against us, and that didn’t work.  But they didn’t learn from their mistake.  They discovered (amazingly, that they didn’t know it already) that they had already authorized us to do what they were suing us for having done.  But when they learned it, they didn’t stop the lawsuit.  They actually doubled down on their absurdities.  Then we started RestoreCSA, and they tried to compel us to stop.  That didn’t work either, but they didn’t learn from their mistake.  They kept on, with more litigations, in the face of more revelations, and all quite pointlessly.  But they didn’t learn from these mistakes. 

We’ve had a lot of meetings with CSA executives during these years.  We warned them repeatedly, and at length, of what was coming if they persisted with such weak arguments in such public places.  We predicted their predicament.  We were specific in our predictions.  The CSA’s now experiencing exactly what we said was coming.  But throughout, they kept on, because they just weren’t learning from their mistakes. 

Well, we’re reaching a point where CSA’s mounds of mistakes will make for an unpleasant environment.  Needlessly so, but here we are.