FCA Ruling Arrives
December 17th, 2018
We have been waiting for a Ruling from the Federal Court of Appeal (FCA).
On March 1, 2018, we (PS Knight Co and Gordon Knight personally) were afforded a Hearing before a three-judge panel of the FCA. We were there to overturn Manson’s Law.
Readers will recall that Justice Michael Manson of the Federal Court had previously Ruled that laws in Canada are privately owned, provided the law was not drafted by a government employee. We subsequently discovered that Justice Manson was chosen by Chief Justice Paul “Kangaroo” Crampton, through some dodgy circumstances, to Judge between ourselves and his former employer, his current presenting partner and his friends on the social circuit, the Crown Agency called the Canadian Standards Association (CSA).
In light of this, and as private ownership of law is, well, a pretty shattering concept in an otherwise civil society, we appealed the Manson decision to the FCA. Our FCA Hearing was on March 1, and we’ve been waiting for the FCA Ruling ever since.
And now it’s here. We lost.
The FCA Ruling is blunt and revolutionary. The law, we’re told, is privately owned.
We have wonderfully peculiar readers here at RestoreCSA. They like detail. When our explanations are experienced as insufficiently specific we start getting friendly emails pestering for more information. To maximize the number of happy readers, what follows is an outline of what happened at the Hearing (previously embargoed until we received the Ruling), what’s in the Ruling itself, what we plan to do about it, and what it all means going forward.
Here we go….
Having a Court Hearing in Toronto in March really is the end of the world. March is a rubbish time of year for pretty much anything in Toronto, litigation in particular. Its, you know, coldish.
I usually fly in for such things in the small hours of the morning, passing some time at Pearson, reviewing documents in sort-of comfy airport chairs, watching planes being loaded, unloaded, pushed about.
It’s unclear to me why window panes at airports are oriented horizontally. When sitting in a comfy-ish chair and looking out the window, the dividing frame of the window obscures the sightline. I can see below the frame and I can see the sky above it, but the interesting bit on the tarmac is obscured. For reasons that elude me, most airports are like this.
Anyway, at about 7:30 I take the train from Pearson to downtown. This takes about a half hour. Then I walk to the lawyer’s office. It’s eighty blocks away, takes nine hours. Then I coffee myself.
I wander into my lawyer’s private office as he and his colleague bundle their boxes. Court Hearings invariably require multiple boxes of documents, these loaded onto pullable luggage carriers and toted along the sidewalk to Court. For this Hearing we arrived in Court around 9AM.
The Court itself is at 180 Queen St., if you’re interested. It’s in an office tower, greyish building, unremarkable, doesn’t look remotely Court-like. Inside its greyish too, sort-of an architectural orgy of mid-2000’s glass and neo-brutalism.
Speaking of dated neo-brutalism, CSA’s lawyer, Kevin Sartorio, finally got himself a new outfit. Gone was his creased and folded Robe from the Manson Hearing, now he’s gone all stylie.
I made a note; “New outfit? Or ironed his gown?”
I also noted who’d shown up in the gallery. The CSA’s Morton was there, and a new face from Gowlings, a senior figure merely spectating that day who seems to have been a sort of supervisor to Kevin. Oh, and our good friend Green, the Uriah Heep of the legal profession, was beside Kevin in the lawyer’s box.
The three judges were Justice Webb (the most senior, in the center position), Justice Gleason (familiar from the Injunctive Stay of 2017, on the right) and Justice Rennie, on the left side of the Bench.
We presented first. It was nothing remarkable. I mean, it was brilliantly argued of course, but there was nothing really exotic within the argument. It is not difficult to prove the existence of public law. So, while we used our full two-hours of allotted time, it was a bit like proving gravity, the onus is on the other side when trying to disprove the status quo (otherwise known as the obvious).
We had some questions from the Bench, all handled well. Nothing dramatic.
We also had some help from the Bench. Justice Rennie was asking our Counsel leading questions, trying to gently sway the argument in our favour. This was unexpected, and welcome. We came through our presentation well satisfied of our position. We were dominant and unassailed and, most important, there was every indication that we’d won the Bench.
Then it was CSA’s turn. To our surprise, Kevin stood to present the CSA argument himself. On our last outing, Kevin just sat there like Captain Pike, letting Green do the thing.
I wrote a note; “Spanking for prev. non-engagement?”
From 11:25 to 12:15, Kevin spoke at length without going anywhere. His points were weak and weakly delivered. He was repeatedly interrupted by Judges, both to correct him and to take issue with him on the strength of this points.
I wrote a note; “Thus far, 12:15, total sidestep of owning the law issue.”
That’s big, folks. The issue of owning the law was the whole point of the Hearing. And Kevin was ducking it. One should also note that in Court one always leads with one’s strongest point, concluding on the weakest or least integral argument. Kevin lead with nothing, telling the judge he’d close on the owning the law bit. We thought that odd.
Kevin had a rough first hour and we were feeling pretty good. Then he did the unexpected. Kevin asked for a break in the session to confer with his colleagues. This was granted, and we all shuffled into the hallway, the CSA into a breakout room, and our side onto not-especially comfortable chairs facing the Courtroom.
We pondered. It appeared that Kevin had nothing to work with and, on the big issue of the day, he had only liabilities. He bombed the first half and was raked by the Bench, and was now holding a hail-Mary strategy session to salvage something on his return. And as is his wont, Kevin took bloody forever.
On resumption, the hail Mary thing didn’t work out. Right from the get-go Kevin was in trouble. He was trying to argue two contradictory things at the same time; that CSA owns the Code even though the Code is indeed part of law, but that CSA doesn’t own the law itself.
It was quite a dance and the Judges were tiring of it. At one point Justice Rennie interrupted Kevin’s argument that CSA members draft the law as a sort of public service. Rennie didn’t buy it. He asked if the members were paying for the right to draft the law. Ooooh, that’s dangerous. If Kevin confirmed it, then CSA was admitting to influence peddling. If Kevin denied it, he’d look silly.
He chose to look silly. These members, he said, were offering their time and talent for the good of society, with no thought to personal benefit whatsoever. Justice Rennie looked perplexed. Awkward pause. Then Kevin offered; “That seems reasonable to me.” Justices Rennie and Gleason started laughing, with Rennie replying that it sure didn’t seem reasonable to him.
Kevin, by now on his heels for the better part of an hour, and withering under relentless -and aggressive- questioning from the Bench, was suddenly confronted by a frustrated and impatient Justice Webb with the one question Kevin had been avoiding all day.
“Mr. Sartorio,” said Webb, “let’s be clear; is your client claiming to own the law; yes or no?” Oh dear, that’s damning. “No,” said Kevin. What else could he say? “But they own copyright in it.”
There was laughter throughout the Courtroom. All three Judges were openly laughing at the CSA position.
“Mr. Sartorio, ownership is what copyright is.”
I glanced back at the gallery. Morton was hunched over, furiously writing in a notepad. He’d been doing this throughout Kevin’s gongshow session. Green was slightly animated, writing notes, almost lifelike.
I don’t want to convey the wrong impression, the Judges weren’t mean spirited, they weren’t bullying Kevin. I had no impression that their laughing at him was calculated. Worse, it was spontaneous.
Well, Kevin concluded, and pursuant to the Rules of Court, we had occasion for a brief rebuttal, about a half-hour’s worth.
While our side delivered the conclusion, I glanced at Kevin a few times, trying to tell his demeanor. And boy, was it telling.
I wrote a note; “folding hands to face, breathing heavy, resting chin on hands, folding, leaning on desk.”
The guy had the look of total defeat. He’d spent the whole day on his heels. He’d won no arguments, he’d taken atypical flak from the Bench (the worst possible place to take it from), been argued against by the Judges, had the Judges passively assisting our side’s argument, and been laughed at repeatedly over the course of four full hours of Hearing. It was the most one-sided Court experience I’ve yet witnessed.
I felt for him, you know. But only briefly.
We walked out into the bracing balminess of March, toting our boxes across the bumpity seams on the sidewalk, and much pleased with our position. Barring a Kangaroo Crampton-like intervention, it seemed we’d just pancaked the private law argument.
The FCA Ruling arrived on Dec 7, 2018. From paragraph 3 of that Ruling; “For the reasons that follow, I would dismiss both appeals, with costs.”
That means we lost on both counts and the “with costs” means that we also have to pay for CSA’s legal bills. Thanks, that’s a huge help.
The Ruling was drafted by Justice Gleason and agreed by Justice Rennie. Justice Webb issued a dissenting Opinion.
Gleason began in reasons by quoting from Manson’s Law thusly; “It would be contrary to the purposive construction of the Copyright Act to strip” such parties of their ownership rights in legal text “simply because certain provinces have incorporated it into law.”
By this Ruling, anyone who is not a government employee, and who has successfully drafted and lobbied government for inclusion of their preferred text into law is now the legal owner of the resulting legislation, with full enjoyment of those rights and authorities as accruing to any other kind of private ownership.
Amazingly, the FCA Ruling quoted from the Reproduction of Federal Law Order, as follows. Read carefully;
“Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.”
There. That’s just as blunt as the Alberta Queen’s Printer Copyright, also noted in the Hearing and much quoted in these pages;
“Alberta Queen’s Printer permits any person to reproduce Alberta’s statutes and regulations without seeking permission and without charge”
Well, Justice Gleason then took issue with the word “enactments,” suggesting that while the Code is indeed part of law (she admitted this in several paragraphs), Crown copyright authorities did not extend to enactments of law. Therefore, laws enacted cannot be copyrighted by governments, they must be private property.
So right after quoting the law that grants universal access, the Judge concludes that universal access is not permitted at law.
The absurdity is astounding. If Crown copyright cannot apply to enacted laws, then what reproduction of enactments is the Law Order referring to? What “statutes and regulations” are governed by Alberta Queen’s Printer? Look folks, if enacted laws are excluded from copyright, then no Crown copyright has authority over any legislation. Yet authority over legislation is the entire purpose of Crown copyright.
Bravely forward regardless, Gleason upheld the 2016 Ruling in its entirety, though her FCA Ruling is more assertively phrased;
“Thus, as long as it is original, any writing may be the subject of copyright in Canada. This would include laws and regulations.” [para.73]
“That law and regulations may be the subject of copyright is indeed recognized” [para.74]
Then she noted that the Federal Government is ok with private ownership of law. She quoted Conservative Minister of Industry James Moore, in his Determination of Nov 28, 2013. Actually, she was quite taken with Moore’s statement, referencing it twice. [para. 21 & 56]
Gleason also noted that Industry Canada has quite helpfully included a blurb on its website that third party generated text is not covered under the reproduction of law order. Again, another huge help from the civil service.
So, we’re left with clear and straightforward Queen’s Printer legislation from both Federal and provincial governments, all affirming the public nature of law and proactively affirming the universality of access to and use of law, yet under this FCA Ruling, we are also informed that what these laws say they mean is the opposite of what they really mean.
Trying to make a contradiction appear to be a consistency takes a lot of words. Telling the truth takes only a few.
The majority Ruling of the FCA took sixty-seven pages of space. Justice Webb’s Dissenting Opinion took fourteen pages.
Webb was succinct and basically repeated our arguments.
He noted that the Crown is obviously permitted to publish laws [para.178], that the Crown is the owner of any Order in Council [para.180], that contrary to Gleason’s surreal assertions, Canada’s electrical laws are not voluntary in nature [para.186], that the Code must be part of law [para.187, 189, 190, 193], and that penalties exist for non-compliance, a key criteria for constituting law (from the Statutory Instruments Act) [para.199].
For these reasons, wrote Webb, “PS Knight simply wanted to publish the Code and make it accessible to everyone at a reduced price from that charged by the CSA. Having greater access at a reduced price cannot be considered to be contrary to public policy.”
Then he hammers it;
“Therefore, the Crown prerogative to publish this Order in Council has been exercised. Since the Code was considered as part of the text of the Regulations when it was incorporated by reference, it is the same as if it had been reproduced in full in the Regulations and, therefore, is part of the Regulations. Since the Reproduction of Federal Law Order permits any person to copy any enactment, the Crown has already granted P.S. Knight Co. Ltd. the right to copy the Code.”
Pretty straightforward, isn’t it? We can quote the law all we like, without charge and without permission, because the law is ultimately copyrighted by the Crown.
Pity that the majority of the Bench came to see things differently.
What it Means
In a phone call last week, I discussed the Ruling with Counsel. “How is this even possible,” was a line from that call. And I didn’t speak it.
How could a Hearing so completely in our favour, indeed so completely that opposing Counsel held his head in his hands at the end of it, -how could this Ruling be so strikingly disconnected from the Hearing? How could two Judges go from laughing at CSA’s position to embracing it so completely over the course of ten months?
Well, we don’t have the answer yet. We’re working on that.
What we do know is that much of the Ruling reads like a CSA advertisement.
Quoth the Ruling, the Electrical Code is drafted with a “substantial undertaking of skill and judgement” and “significant effort and expense.” [para.49 & 96] These are CSA claims, and already debunked in these pages and already admitted as false by CSA in other Courts. So why would the FCA take seriously these already discredited and disproven claims?
In another example, the FCA repeatedly declares Canadian electrical laws to be mere voluntary standards. [para.5, 9, 49] But what do you suppose would happen if an electrician were to ignore electrical laws on the jobsite? Would the argument that the law really isn’t the law be effective with electrical inspectors?
Webb pointed this out, just as repeatedly [para.186, 187, 189, 190, 193].
And then there’s the big CSA insecurity; that they’re still under a Government Charter as a Crown Agency. I mean, they’re awfully insecure about that one, because admitting their legal status puts them under a lot of inconvenient laws. Like the Transparency and Accountability Act, or the Access to Information and Protection of Privacy Act, for instance. It would also somewhat inconveniently illuminate CSA as a de jure legislative body, rather than a de facto legislative body.
So, CSA wants to broadcast that they’re not part of government. Gleason repeated that CSA claim in her Ruling. Six times. [para.5, 29, 49, 50, 67, 103]
The fact that CSA’s legal status wasn’t a matter before the Court doesn’t seem to have mattered. It’s interesting that Justice Manson did the same thing in his Ruling, ignoring CSA’s Government Charter repeatedly, and just as repeatedly affirming that the Crown Agency was actually a private company. We know why Manson did so; we’re not yet clear why Gleason did so.
Perhaps the most incredible passage in the FCA Ruling is Gleason’s description of CSA’s behaviour as “an example of cooperative federalism at its best.” [para.90]
Somehow, in the ten-month interval between Hearing and Ruling, two members of the FCA were turned from scoffing at CSA to praising them; from scorning their positions to embracing them. Somehow these two were turned so dramatically as to involve themselves now in proactively shoring up defences of CSA’s other, unrelated insecurities.
In June of this year, as I awaited this Ruling, I admitted concern over the prospect of civil service lobbying of the FCA. I had then “no indication of discrete discussions or word of carefully couriered expressions of Government concern quietly working their way into the Courts Administration.” That was true then, and is so now. But the Ruling itself, and the Hearing which lead to it, is inexplicable on the surface.
Perhaps in time we’ll receive more background on the matter.
This case is being followed more widely than you might expect. The ramifications of private ownership of law are, you know, well, impressive.
Within a day of the Ruling we received emails from prominent lawyers, one of which began with the word “wow” in all caps, followed by about sixteen exclamation points.
We know the issue and the case and, because the FCA Ruling included a Dissenting Opinion, we have a very good chance of a Supreme Court review. There is a similar case from Ontario presently scheduled for the Supreme Court in February, 2018 which may now be postponed in light of the FCA Ruling. Either way, delay or not, our case is close enough to this other case that it would be difficult for the Supreme Court to decline a review of ours.
That said, and perhaps it’s seven years of litigation and political interference colouring my perspective, but if the Court process is generally just a veneer in the benefit of whatever the civil service wants, then the result is already known. It’s just a matter of time and money to get there.
We’re pressing in Parliament again, hopefully with better results this time. I tell you, trying to convince a politician to act against civil servants is like…. Actually, I can’t dream up an analogy for this. Trust me, it’s tough. But we’ll tough it out.
We’ve come this far and now, it seems, we’ve got a bit farther yet to go. We’ll get there in time.
Thank you all for your continued support through these difficult years. Your support is invaluable, and warmly appreciated, even if I lack the time to acknowledge every instance of it.
And now, my friends, we’re off to the Supreme Court.