Restoration by Injunction
November 26th, 2017
We just cornered the Canadian Standards Association (“CSA”). We’re being modest; they’re in trouble.
The CSA announced that the next amendment to Canada’s electrical laws will be released in the first week of January, 2018. Indeed, the CSA is even taking pre-orders on their website. They’re also offering review seminars in December. That is, if you pay them five hundred dollars, they’ll tell you what they’ve changed in the law before they release it this January.
That’s illegal. Quoting from the legislation that governs the CSA;
“The [CSA] shall notify the Canadian public of standards available for public review, the public review shall be a minimum of 60 calendar days, [and] on request of an interested party, the [CSA] must promptly provide a copy of the draft standard in question.”
This is called a public review law. Under this law, the CSA can’t restrict public access, they can’t trade money for access, and a full copy of the draft must be freely given to anyone.
On November 2nd, we tested for compliance. We sent a letter to CSA’s legal counsel requesting confirmation of compliance with the public review law. They ignored us.
Then, on November 20th, we filed a Motion with the Federal Court, requesting;
“an interlocutory injunction restraining the [CSA] from selling and distributing the 2018 version of the Canadian Electrical Code [electrical law] pending the [CSA] complying with its obligations” at law.
Let’s be blunt. The CSA has been violating a wide range of laws for well over a decade without consequence, the public review law is just the tip of the iceberg. When CSA gets in trouble with the law, the civil service steps in to excuse them from penalty, scrutiny and accountability. It’s like a license for crime.
Not only is CSA’s callous disregard for law, and governments’ willingness to go along with it, incredibly offensive, but that conduct is also very damaging to legitimate businesses.
At PS Knight Co, for instance, we need to update our publications to align with changes in electrical law. But we can’t update anything until CSA releases that law. Critically, the CSA will release the law concurrent with their own explanatory guidebook in competition with PS Knight. Their book is released concurrently with the law, but ours is delayed for several months while we frantically update our books.
The first months of a new release are the most lucrative. Revenue in these months, for a small operator like us, is often the difference between profit and loss on a Code cycle. With CSA its different. Given their sky-high pricing and zero development costs, the first months of release are pure gravy. For example, the CSA had over 8,000 pre-orders in advance of the 2012 release. That’s nearly $1MM in CSA revenues folks, just in pre-orders.
The CSA’s violation of the public review law is very profitable for them and, as a bonus, their violations of law suppress PS Knight revenues as part of their efforts to force us into bankruptcy. And crime doesn’t pay?
It gets worse. The CSA is empowered to amend certain laws under its mandate, including electrical laws, in some provincial jurisdictions without legislative vote or approval (the famous Accepted as Amended provisions). That is, the CSA has been afforded the power to change the law without legislative review. New amendments are therefore law immediately upon release.
That the law is being amended in defiance of the law is a big breach of the law. We brought this Motion to compel CSA to comply with law.
The evidence is abundant, making the argument strong. For instance, the CSA publicly announced its intention to violate Federal public review laws, they actually advertised their plans on their website. We pointed this out in our filing, that if our Motion is denied “the Court will be condoning CSA’s continued disregard for the law”.
It’s pretty simple; the law requires a 60-day period for public review and unhindered access to new drafts of legislation upon request. The CSA is not in compliance with public review laws. So how do you suppose they’ll defend against our Motion?
Well, they’ll likely claim to have complied already, and that we’re nuts for not noticing, and that we’re malicious, and nasty, probably. They’ll argue that CSA does post the actual changes to the law at least 60-days ahead of release. But the law requires full public review, not merely review of the bits they’ve changed since last time. Yet that’s all they post for public review.
In example, think of the word “minimum.” It’s a relatively small word to insert into a law, isn’t it? Yet that word can be placed to fundamentally change the nature of the law. Changing “maximum” to “minimum,” for instance, could be a dramatic change in citizens’ obligations. What if that change were made to speed laws? Would that be a big change?
Right now, the CSA is only releasing for review the changes themselves, in this example the single word “minimum.” Read carefully; this text is what you see of CSA’s changes to law;
Alright, now that you’ve reviewed the change to law, do you understand that change? What attribute of traffic law does this refer to? How has enforcement changed?
You get the idea. Code changes are meaningless when divorced from context.
As we argued in our Motion; “Despite the SDO Requirements, CSA did not provide the 2018 Code draft for public review. In defiance of regulations, the CSA does not provide the Canadian public with a copy of the draft standard upon request. CSA only provides snippets of the draft Code online.”
Changes in each Code cycle amount to less than 2% of Code text, such that the sum of all CSA’s public postings is less than 2% of the text of electrical law enacted upon release. It is not reasonable to expect the public to appreciate the content of amendment to electrical laws when more than 98% of the text of those laws is concealed from them.
Not only are changes to law divorced from context, the <2% of text that is publicly posted is not contiguously available. That is, the <2% snippet is itself divided into even smaller snippets, each individual change to law being posted separately. In most instances, the individual snippet so posted consists of a few lines of text. The full text of this law however, is 696 pages in length in its current iteration.
The even smaller snippets, taken from the <2% of amended text, are not posted concurrently but are intermittently posted, one at a time, throughout the three year Code cycle according to the internal, non-posted timelines of CSA. At any given time therefore, the actual text of amended law posted for public review is a small fraction of the even smaller snippets of the less than 2% of new Code.
Posting less than 2% of text from a body of law totalling hundreds of pages in length, and reducing this small fragment to even smaller snippets of disconnected text, and posting these at irregular, secret intervals, does not constitute a public review of draft amendments to law.
Imagine if pipeline or energy companies handled their public review compliance this way. Greenpeace would have a fit, and so should the rest of us.
Another option to review Code snippets is through a CSA bulletin board called “Communities of Interest”. This requires the public to register for an online CSA account on its website and agree to its terms and conditions. The website terms and conditions allow CSA to suspend and / or terminate the account in its sole discretion. The CSA has not been authorized to unilaterally disallow the public to review amendments to laws that apply to them. Moreover, the authority unlawfully assumed by CSA to block public review is in violation of its obligation to specifically enable public review.
If that’s not enough, and it surely should be, the CSA has also blocked access to me specifically. As a competitor, the CSA has used its control of legislative processes to electronically block me, specifically, from public review. I can’t even see the snippets.
You know why, don’t you? The CSA can’t comply with law while retaining an unfair and illegal advantage. It’s harder to compete within the market that they’re regulating if they regulate it honestly. More broadly, the CSA can’t charge people for the right to read the law if the law is freely accessible. Violating the law is profitable; public review on the other hand, is public service. In the same way, the police would have higher speed control revenues if drivers weren’t allowed to read the speed limits. Then, changing “maximum” to “minimum” would be like a “money machine.”
Violating the law in the process of amending the law questions the integrity of that law and undermines its enforceability. And we said so in our Motion.
“In the circumstances of this case, the 2018 Code will bind millions of Canadians at law after its release. Therefore, if the injunction is not granted and the 2018 Code is released, the public may have to deal with the 2018 Code being found to have been developed and published in violation of [law] after it is released. Such a scenario invites the question of legitimacy, and thereby the enforceability, of any law so illegitimately amended.”
I trust the significance of these lines is noted. In legal contexts, this is a bombshell.
“Accordingly,” we wrote, “the Court ought to continue to support the public interest in seeing the law obeyed because it is difficult to find hardship in requiring CSA to follow a law that is currently in force, that CSA has stated on its own website it has to follow, and which was specifically created for [the CSA].”
So the CSA’s in a pickle. The evidence is abundant, and abundantly clear, and they’re clearly non-compliant. In this, they can’t argue to Court that they’ve complied, at least not without a lot of grinning from the bench. This Motion exposes the illegitimacy of CSA’s practice of “monetizing the legislative process.” That’s awkward, and its also an introduction of a hideously risky liability.
Our expectation is that CSA will appeal outside the Court process. That is, they will approach their colleagues elsewhere in the civil service for one of two favours. First, they could request that CSA be granted an exemption from public review laws. That way CSA can amend the law to the liking of their paying members, without legislative review, and without public awareness. Or, second, the civil service could arrange a private word with the office of Paul Crampton, Chief Justice of the Federal Court, to appoint another Michael Manson-like judge for our hearing.
Regular readers will recall that Justice Manson, famous for Ruling in CSA’s favour that Canadian law is privately owned, is actually a former CSA employee, CSA media representative, a former legal contractor for CSA, a public speaker at conferences for CSA, etc., etc. Inconveniently for CSA, the civil service is running out of conflicted judges. The question then, is whether there is another justice on the Federal bench who could be tapped by Crampton, presumably without inducements, to pre-arrange a verdict on behalf of the government.
Ponder the record thus far; Our 50 year-old contract for publication was dismissed as invalid without evidence, argument or consideration and with an actual, literal wave of Justice Manson’s hand. Queen’s Printer Copyright law, unambiguously authorizing us to do exactly what we’re being sued for having done, has been thrown out entirely, then the Ruling that did so was ignored entirely by every Queen’s Printer in the land, leaving us as the only party anywhere actually complying with Manson’s Ruling. The CSA is now concealing its financial statements in violation of the Transparency and Accountability Act. They’re ignoring completely their obligations under the Access to Information Act. They have immunities from litigation, these illegally obtained and illegally held. You get the idea? This is lawlessness in the Federal civil service and, thus far, in the Federal Court as well.
In this context, our Motion to compel CSA compliance with laws on public review is a crucial step in restoring CSA to the rule of law. We’ll have our hearing in December. It’s a step forward.
We can do nothing to stop the civil service from granting CSA even more extra-legal immunities and exemptions. As to rigging the Court, our Motion and, more broadly, the integrity of Canadian law, is dependant on the presence of an honest judge. Pray there is one.