November 4th, 2018
Readers will recall that the Canadian Standards Association (CSA) filed for an injunction against PS Knight last month in order to prevent us from selling Knight’s Code. This new CSA litigation took place while both parties waited for the Federal Court of Appeals (FCA) Ruling on another, though identical, CSA litigation from March 2018.
We don’t have the FCA Ruling yet, but the Federal Court Ruled last week on CSA’s latest injunctive litigation.
And here it is…..
“The Court Orders that this motion is dismissed with costs payable to the Respondents”.
The “Respondents” is us, by the way. We won.
While the CSA had argued in Court that PS Knight conduct was a breach of law and ought to be punished, harshly, and with sticks (probably), the Court didn’t quite agree that we’d done any breaching of law whatsoever.
Specifically, the Judge Ruled that “I do not find that Knight’s actions constitute a fundamental breach” and with regard to PS Knight’s specific conduct, the law “has been honoured.”
You may also recall some of CSA’s more hyperbolic references to how dangerous our Code is, how it’s crammed with 180 errors so serious, so foul, as to cause “public safety risks,” and “increased risk of shock,” or “serious property damage, bodily injury or even death,” or nuclear winter, or the randomized maiming of the citizenry, etc. and so forth.
Well, the Judge reviewed CSA’s claims rather carefully, running a sort of audit, comparing their claims against the reality of our publications and, to the surprise of no-one, concluded that while CSA “raised serious safety risks, the evidence [CSA] provided to that effect is not compelling.”
Indeed, said the Court; “the vast majority of the differences the CSA characterized as material appear to be small grammatical edits or minor changes the CSA did not highlight it its [own] 2018 Code.” Examples of these differences were noted in our August 6th article.
Further, CSA’s own legal submission, specifically the allegations therein of their resident expert, Timothy Pope, “supports the inference that the remainder [of the CSA’ 180 claims] were of no particular concern to CSA.”
The CSA’s posting of public warnings of how dangerous PS Knight products are, and their issuing of warning letters to academic institutions, etc. have been Ruled baseless. It has been this conduct therefore, by CSA, that’s in breach of law.
In other words, the CSA lost their own injunctive and every argument they submitted to support it.
Apart from the merits of the arguments of both parties, it is arguable that the Court had little choice but to Rule as they did. The applicable law, oft quoted in these pages, is short in length and clear in content; that anyone has the right to do what CSA’s suing us, repeatedly, for having done. We’re in the right. Any finding to the contrary would make a mockery of the law and the Court itself, in that it would further cement the already solidifying view that in Canada’s courts, how the law reads is the opposite of what it means.
If the law means the opposite of what it says it means, then the law means nothing. And the Court knows it. And that’s why the thin veneer of objectivity is needful to safeguard credibility even in Crampton’s Court.
Consider further that if the Judge had Ruled in accordance with Manson’s Ruling of 2015, the one presently under FCA appeal, the optics of the Ruling would be properly awful. Seriously, the same Federal Court ruling on the same issue, twice, and concluding that laws are privately owned, including those laws used every day by that same Court, with the injunctive taking affect while the FCA was deliberating on the legitimacy of Manson’s Ruling…. Such a thing would be newsworthy on its own.
Finally, Ruling in favour of the Civil Service and their preference for private law would have linked this Judge with the author of the previous such Ruling, Justice Michael Manson. Surely, an undesirable comparison.
The CSA’s loss is therefore attributable to their weak-to-invisible argument, and is hammered home due to this Court’s previous compromised Rulings and subsequent complacency when confronted with them.
So, the big question now is whether CSA will drop their latest litigation and politely await the FCA Ruling, or whether they’ll appeal this Ruling too. If they do, the appeal will go before the same FCA that’s already considering their last Ruling, being Manson’s Law. That’s awkward; having two identical appeals before the same Court, against the same party, and so pointlessly. But they might appeal it anyway, its CSA after all.
In the nearly seven years of this legal saga, I have learned that CSA’s capacity for bloodymindedness and legal masochism is, indeed, very strong. Almost a fetish over there, it seems.
We’ll know if they’ll appeal sometime in November, and we’ll report on that and, of course, on any FCA Ruling that materializes.