Sartorio’s Letter

April 8th, 2018

Last week’s article was more heated than usual.  Written in frustration and amazement at the gall of CSA, it was more blunt than usual, using terms more assertive than usual and, as a result, generated more email responses than usual.

The article covered CSA’s filing of a yet another lawsuit against us, as identical to their previous lawsuits, and the article also covered CSA’s big insult and arrogant assumption of doing so in the interval between the March 1 Hearing and the yet to be released Ruling. 

The day after the article was released, I received the full files on CSA’s new lawsuit (it takes time for legal Service to actually deliver to each party).  And therein I also found a surprise. 

You see, I had thought that CSA’s gall was confined to unlawfully influencing the Court of Appeal through the filing of a duplicate lawsuit in the interval between the Hearing and the Ruling.  But no, oh no.  This is CSA.  On Monday I found out they’d done so much more.

“We are Counsel to the Respondent, Canadian Standards Association, in the above noted appeals.”  That’s right, in addition to filing their new lawsuit, they also sent a separate, stand-alone letter to the Appeals Court.  They’re trying to influence the Court after the Hearing with a new lawsuit and letters of additional argumentation, with fifteen pages of attachments.

“We enclose for the Court’s consideration additional authorities relevant to certain issues raised at the Hearing”.  Uh-huh. 

It might not be clear how big a breach of law this is.  On receipt of my copy of CSA’s letter to Court, I asked a rather senior lawyer for an unvarnished personal opinion.  He said he’d heard about unlawful filings made between a hearing and a ruling, but only from people who are self-representing.  That is, from well meaning people who aren’t aware they’re not supposed to behave that way.  But, he said, in thirty years of practicing law he’d never heard of a professional lawyer trying to make additional arguments after the Hearing.  At least for the lawyer I asked about it, CSA’s conduct is literally unheard of. 

The CSA’s legal Counsel is Mr. Kevin Sartorio, of the bluechip firm of Gowling WLG.  He’s not a newbie, at least he’s not billed as such.  Yet conduct like this is illegal, unethical, underhand….  Or maybe Gowlings just isn’t all that good.

We’ve had hints of this before.  Readers may recall CSA’s unlawful inclusion of twenty-seven paragraphs of privileged information in one of their filings.  The Judge wasn’t keen on this CSA conduct and struck all of the unlawful paragraphs from the record.  Interestingly, Sartorio defended his unlawful inclusions by insisting that he didn’t know any better.  Seriously.  I was at the Discovery session wherein he haughtily declared himself in the right, while using a fascinating series of condescending facial gestures because, you know, we’re just nothings compared to him. 

And then there’s his surprising lack of preparedness for Discovery sessions, his ad-libbing his questions therein, the loooong pauses between questions while he dreams up another one (he’s supposed to have prepared these in advance), his wobbly, watercup performance at Federal Court and his no-show spectating at the Motions Hearing (“he didn’t seem to be leading his case”), and one could go on at length.  We’ve always assumed that CSA’s minds were Dunning-Krugered, but that the performance of CSA’s Counsel was weak because they were less interested.  On reflection, it could be that they’re less capable.

On this point, let’s look at their unlawful letter to the Appeals Court.  Sartorio writes therein; “the relief in the event a document incorporated by reference [passed into law] is found not be ‘accessible’ is that a person is not liable to be found guilty of an offence for any contravention of that document”.

Caught that?  Persons violating electrical law cannot be found guilty of an offence.  The CSA’s Counsel is arguing that the texts of law are not enforceable. 

Setting aside for a moment that there are indeed penalties at law for violating the law, and steep ones including prison time for breaches of electrical law for instance, and further ignoring that electricians are fined for various breaches of electrical law every day, and further dispensing of the awkward existence of reams of records of prosecutions and court cases specifically on such violations, the CSA argument ineloquently thudding into the inbox of the Court of Appeal is entirely self defeating.

If electrical laws are violable without penalty, then why would anyone comply with them?  Look, if these texts aren’t enforceable at law, then under the Statutory Instruments Act, they aren’t actually laws.  However absurd the argument, how does it help CSA?  Why would people buy copies of the law if their only reason for buying was complying?  The CSA argument undercuts the very market they’re trying to monopolize.  And it gets worse.

If electrical law isn’t really law, and since nobody is compelled to comply with suggestions, then all of the sums through all of the years that have been paid in electrical permits, fines and penalties, and all of the added expense of “complying” with text that nobody had to comply with -all of these sums, deeply into the billions of dollars’ worth, were illegitimate and therefore needlessly paid and baselessly compelled.  And that’d be the start of the biggest class action lawsuit the Country’s ever seen.  And it leaves the Country without any electrical laws whatsoever, a real anything goes, ‘wild west’ of wiring. 

How, pray tell, does this help CSA?

At some point it’s proper to ponder if maybe CSA Counsel’s regular blunders, in procedure, in law, in strategy, etc, aren’t so much the cause of nefarious scheming by masterful legal minds as the absence of anything remotely masterful about them.

On our side, there’s a bit of relief in all this, in the fact that Sartorio sent this unlawful letter at all.  If the civil service were quietly lobbying the Court of Appeals as they appear to have done with the Federal Court, trying to generate another Manson-type Ruling, then it’s unlikely CSA or their Counsel would’ve felt the need to issue such a letter.  That they chose to send one may be an indication that the Court of Appeals process hasn’t been similarly compromised.  You never know, we just might get a clean verdict.