Awaiting the Injunctive Ruling
December 17th, 2017
“This motion is but the latest chapter in the Defendant’s concerted campaign of harassment and vexatious actions against CSA, its employees, its legal counsel, this Court and its judges”.
This line, along with quite a few others, all roughly equivalent in dubious credibility and balance, featured in CSA’s last minute supplementary Court filing late on Wednesday, ahead of last Friday’s injunctive hearing. That’s right, they filed even more paperwork, beyond the hundreds of papers they’d already filed, for a 2 hour hearing.
This latest CSA filing was 32 pages in length. Most of it was a rehash of already filed arguments, but this time with enhanced invectives.
Their reaction is understandable though, last week didn’t go well for CSA. Things started going sideways on Tuesday morning, at a discovery session (like a deposition or Q&A inquiry of witnesses).
In example, you may recall that for this hearing the CSA changed its definition of the electrical Code. It went from being a single Standard that’s passed into law to being a compilation of a few thousand standards published in a single book. Each amendment to the law therefore, is amending a single standard, so they only have to post a few lines for review. In this, CSA claims that no public review of the full Code is required.
Well, we explored this with their affiant, Mr. Zimmerman. Plenty of bobbing and weaving in here;
“Q - And so, therefore, the entirety of the standards would be available to be provided for review as of November 2017?
A - The public review period you are referring to?
Q - Yes.
A - The public review period was done earlier on.
Q - No, no. But what I’m saying is you’ve told me, as I understand it, that the amendments were completed prior to the end of October 2017, correct?
A - Yes.
Q - So it would be possible, therefore, for CSA to provide a copy of all the standards by November 2017 for public review, correct?
A - I’m sorry. I’m confused because the standards were provided for public review well in advance…
Q - The amendments were, Sir.
A - The amendments, yes.
Q - I’m not talking about the amendments now. I’m talking about the standards, okay?
A - Yes.
Q - The standards incorporate amendments, correct?
A - Well, the standards are amended. They’re basically all the individual standards that make up the Code are independently reviewed and provided in public review.”
Caught that? Zimmerman is trying to avoid acknowledging that the Code is a single standard and, as such, has not been subjected to public review. Rather, he says, the Code is a collection of thousands of standards.
So we handed Zimmerman a copy of the 2015 Code book, and invited him to turn to the preface.
“Q - And if you can read the notes please at [page], notes 1, 2, and 3. Just read them to yourself.”
The preface of the Code is the legal terms section, basically defining what the terms mean in the book, what the format is, etc. The notes that Zimmerman was invited to read were within this preface. The first note begins like this;
“Although the intended primary application of this Standard is stated in….”
That’s right, the CSA defined the Code as a “Standard.” That’s singular; a single standard, and it’s capitalized; a specific standard, being the Code. That’s awkward, and it got worse for Zimmerman, because the second note begins like this;
“This Standard is subject to periodic review…”
And the third note;
“All enquiries regarding this Standard…”
So, said our counsel, “do those notes accurately describe the Code?”
“A - Yes.
Q - Ok, and the word ‘Standard’ at para 1, that Standard refers to the code overall?”
Absolutely not, says Zimmerman, “the object of the code is to establish safety standards, so the code is a collection of standards.”
“Q - Ok, but the word -if I go back to note 1, which you said was accurate…
A - Yes. Um-hmm
Q - …it says ‘application of this Standard’. The reference to the capital ’S’ standard is the code itself; is that what the reference is to?
A - It may be referring to it as a code in this context, but that’s boilerplate language used in everything we publish, so…
Q - Ok, so the word ‘Standard’ with a capital ’S’ is used boilerplate in everything you publish?”
The argument that CSA’s own legal definitions for its standards are meaningless is not perhaps the strongest of defences.
Their argument is also hogwash. The phrase “this Standard,” in singular and with a capital ’S’ for specificity, occurs 26 times in the Code, all in reference to itself. Nowhere does the Code define itself as a multiplicity of specific standards. It just isn’t there.
After his pancaking on standards, Zimmerman went wobbly on the legal nature of the code in law. He took the usual CSA line, that the Code is a voluntary document, not a law. We pushed back.
“Q - Would you agree with me Sir, that once the standard is adopted by regulation, it’s no longer voluntary, correct?
A - No, I would not agree with that statement.
Q - So you would say it’s voluntary to the extent that people are allowed to break the law?”
He went all contortionist on this one, trying to claim that it’s voluntary for a government to enact as law, but he argued that what governments do is beyond his control, therefore as far as CSA is concerned the law remains voluntary.
“Q - But once it’s adopted by a legislature, you would agree with me, then, it’s a standard that must be complied with by people, correct?”
More obfuscation. Now he waxes that some legislatures have different dates of passage, some places have their own amendments, etc. None of this affects the mandatory nature of legislation, so we coaxed him back to the issue.
“Q - Yes, okay. And it’s no longer voluntary in that jurisdiction, correct?
A - I would assume so [but] I’m not a legal expert.”
This is what it’s like defending against CSA. They fight against the obvious and dispute the self evident, even questioning that the nature of law is mandatory compliance.
Elsewhere in discovery, the CSA claimed that compliance with public review laws would cost them money. Of course, this ought to be irrelevant but, this being CSA, we had to wander through their curious claims of added cost.
Curious, that is, because their cost claims didn’t conform to any costing that we’d yet seen. The CSA was claiming that compliance with law would cost them about $100k to cover changes in the text resulting from the public review process. But they also claimed costs of exactly the same amount in the event no changes were required. However odd, here’s how it went;
“Q - So if there were no changes made to the Code as a result of the public review, would your evidence change in paragraph 73?
A - No.
Q - It would still, you say, cost $100,000?
A - There would be costs probably in excess of $100,000.
Q - Even if there are no changes?
Q - Yes.”
How could public review compliance cost exactly the same figure regardless of the work involved?
Well, said counsel, “I don’t understand, Sir. Are you saying Sir, that if there are no changes made the cost is $100,000, and if there are changes made the cost is $100,000?
“A - There will be costs incurred if there are changes made to the code, there will be costs incurred if they aren’t [sic] because it will still have to go back to the committee for review because you essentially publishing [sic] if you will, a different version of the code.”
Nonsense. The public review law requires public posting of the final, or “mature,” draft of the code. What CSA choses to do beyond this, and at whatever cost, is their own concern.
Regardless, CSA’s Gowlings counsel knew walking out of discovery that their figure was weak. We’d also asked them for a breakdown of the accounting used to generate that figure. And producing one could be awkward if the figure had been conjured out of air. As our side walked out, we thought it was. We actually joked about CSA quickly cobbling together a plausible breakdown. And it seems they did.
When we received the breakdown the following day, the $100k figure had ballooned into two figures, both higher than they’d testified the day before. The first estimate was now $333,000, purportedly covering a public posting of law without options for public comment. The second, with public participation, was now listed as $1,096,000.
Actually, the figures within these curious figures were curious themselves. For instance, does it really take 300 hours of time and $71,000 to post a document on their website? They also claim that it would cost $450,000 for a project manager to intake public comments for 60 days of public review. And that 60 days of review is calculated at CSA to be “1 FTE for 1 Year.” Even if CSA paid someone a full years’ rate for only two months of work, does a CSA intake clerk really make $450,000 / yr? Really?
If you can tell, CSA was awfully nervous about the Friday hearing.
It should be clear why they were nervous; the public review law is clear as can be:
“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.”
They’re not complying. And they fretted that it might be clear in Court, hence their nerves. Those nerves were strongly evident in their supplemental filing.
It was a full mudslinging spectacular, a real big blast even by CSA standards. Ponder this pleasantry;
“Finally, given Mr. Knight’s repeated vexatious attacks on CSA, its employees, this Court, CSA’s counsel, and third parties, even if Mr. Knight had first-hand knowledge of the matters to which he deposes, he simply is not a witness who can be trusted to present those facts in a dispassionate, straightforward, or fair manner.”
In the last four years, I have thoroughly researched my adversary, published my findings, and publicly disclosed the evidences found in national archives or delivered by sources, some from within CSA itself. To impugn the findings due to their significance is to conclude that the seriousness of the wrong debases the credibility of evidences for that wrong. Yet that’s exactly what CSA was arguing.
Yes, their supplemental filing lists yet again the various articles found on this newsfeed and expounds on how horrid the charges are but, as usual, without refuting any of them.
Then they complain about being mocked. RestoreCSA has been “publicly mocking and insulting CSA’s external counsel and making claims that counsel have misled the Court in prior hearings”. Well, they have misled the Court, and on numerous occasions, and at great annoyance to our side. And yes, we have made merry with their peculiarities. That’s only fair; they’re waging war against me, my family, my family business. They’re taking enough of our money to take a sampling of our ire.
Anyway, the CSA also vented that we’d “waited mere weeks before the release of the 2018 Code to bring this Motion”. Actually, we waited until the start of the 60-day review window (a Jan. release means a public review start in Nov. at the latest).
For all these reasons, said CSA, the Court should not only dismiss the entire claim, but they should also “award of solicit-client costs […] under Rule 400(1) where a party has displayed reprehensible, scandalous, or outrageous conduct.” That’s us, apparently.
Not wishing to miss a chance to slag our side, the CSA helpfully defined the above, as;
“‘Reprehensible’ [deserves] censure or rebuke; blameworthy.
‘Scandalous’ [is] causing general public outrage or indignation.
‘Outrageous’ behaviour is deeply shocking, unacceptable, immoral and offensive.”
Look folks, the public review law is quoted above, and it’s not complicated, and CSA’s not in compliance. Asking that the law be respected is not reprehensible, scandalous or outrageous. One gets a whiff of desperation in their phrasing.
“The Defendant’s motion is so ill-founded and so obviously brought for improper, vexatious, ulterior motives that it can only be concluded that the motion should never have been brought.”
In case the Judge was unclear on CSA’s position;
“The Defendant’s conduct is worthy of rebuke.” Our conduct is “vindictive and malicious,” our filings are “hopeless and vexatious proceedings against CSA,” and our record is a “pattern of abuse”.
“The Defendants must be deterred and held accountable for these actions.”
Oddly, the CSA doesn’t mention that we’re the ones being sued by them, not the other way around. The record is clear for all to see, and to judge for themselves. Yet to read CSA’s material, and to hear their pitch in Court, one could actually conclude that CSA is the poor, helpless victim and we’re the big, bad bully, hoping to harm them for spite’s sake.
It’s grating that truth means so little. We’re hoping that law still counts for much. We’ll soon see.
On Friday, the Judge reserved his decision, with release likely late next week.