Keatley Ruling Arrives

September 30th, 2019

The Keatley Ruling is in.  We won.  Big.

“Held: The appeal should be dismissed.  It is unnecessary to deal with the cross-appeal.”

And that was it.  That’s what a win looks like in a Court Ruling.

Court Rulings are dull reading, a sort of dull dullness, dull-like you might say.  Yet within the droning dullness is featured a big win for us.  I’ll try to make the analysis seem interesting. 


Background

An Ontario company called Keatley Surveying Ltd., a land surveying company, at some point got miffed that the surveys they were registering with the Provincial Government were made available without charge to the public.  And so they were, and that’s just fine.

You see, Keatley was paid for their survey work.  I mean, they weren’t surveying recreationally.  And, at law, their land surveys had to be filed with the Government.  The reason?  The legal surveys showing where everything on a bit of land is located are critical for sorting property boundaries, permissible construction areas, and so forth.  The survey then, is the legal definition of what’s on the property and informs of what can be placed there.  Land surveys are part of the public record.

It’s been this way for well over a century.  Public records give the public a clear and accessible framework for the functioning of society.  It’s just that Keatley wanted to monetize public records.  Sound familiar?

They thought that the piffling payment for conducting a survey could be massively multiplied if everyone who used it had to pay for access.  I mean, if Keatley actually owned the public records themselves, then everyone would have to pay, including governments.  What a lovely racket!

So they sued.  Keatley lost their first two lower Court Rulings, eventually they appealed to the Supreme Court and that’s how we got here.


Supreme Court Ruling

Last Thursday, in a unanimous 7-0 Ruling, the Supreme Court has upheld the public ownership of public records.  The Reasons for Decision, the bit outlining the basis for decision within a Ruling, features a point-by-point refutation of the tenets of Manson’s Law.

Even better, three of the seven Justices wrote additional contributory reasons for their Decision, seemingly taking every available opportunity to pound Manson’s Law into powder. 

Consider these wee examples;

“A work will be prepared by the Crown when an agent or servant of the Crown brings the work into existence for and on behalf of the Crown.”

Seems innocuous, doesn’t it?  Well, that simple line is terminal for Manson’s Law. 

You see, central to the private law argument is the notion that any legislative text contributed by third parties is not “prepared by the Crown.”  In this, Crown Copyright cannot apply because the text was not “prepared under the direction or control of the Crown.” 

The Supreme Court just shot that down.  Under this Ruling, any text drafted for exclusive purposes of the Crown, (“for and on behalf of the Crown”) is necessarily Crown copyrighted. 

Bottom line:  The only purpose for ever drafting legislative text is to engage in legislating; an obviously government function.

Next, this lovely line;

“Similarly, a work will be prepared under the Crown’s direction or control […] when the Crown essentially determines whether and how a work will be made”.

Using Alberta as an example (and who wouldn’t, its glorious here), the Electrical Code Regulation (Safety Codes Act 209-2006) declares the Canadian Electrical Code passed into Provincial law, and that any new versions of it are automatically passed into law upon release (under the Accepted-as-Amended provisions of that law).

That is, the Crown has declared that the Code, specifically as “published by the CSA Group,” is law and that Alberta’s electrical law will be updated by CSA Group as they deem appropriate. 

So the Canadian Electrical Code meets both criteria for Crown direction and control.

Ok, just one more example;

“The work will be a ‘government work’ where the work serves a public purpose and Crown copyright furthers the fulfillment of that purpose.  These will be works in which the government has an important interest concerning their accuracy, integrity and dissemination.”

Too easy.  Electrical laws are laws; their purpose is intrinsically public.  Even better, Alberta’s Queen’s Printer requires of anyone reprinting Provincial laws that “due diligence is exercised to ensure the accuracy of the materials produced”.  See?  The Code meets this requirement too.

I won’t hammer the balance of it.  The Ruling was 147 paragraphs of awesome.  Nearly all of that is directly applicable to our case.

Recall that CSA was an intervenor in the Keatley Hearing.  They were there, they argued in favour of Keatley.  The CSA knew that Keatley was a threat to their dirty Rulings, so they went the distance to shore up Manson’s Law. 

In other words, not only is the Keatley Ruling tightly applicable to our case, the fact that CSA argued in favour of Keatley means that in legal terms Keatley’s loss is also CSA’s loss.  The CSA argument, made by CSA counsel, got crushed in Court.

Ok, all this is good, right?  Well, yes, we think so, but lets keep our heads about it.  We know what the civil service is like.

We expect that CSA will continue the balance of their various litigations against us.  It doesn’t matter to them that the matter’s been buried, they’ll do their best to resurrect it. 

We expect that CSA will argue that their loss is actually a win, that the text of the Ruling means the opposite of what it says it means.  We’ve seen that a few times before. 

We expect CSA to argue that Keatley was entirely different, having nothing at all to do with Manson’s Law.  Even though CSA said otherwise in Court, took the bother of presenting in favour of Keatley in Court, and even though the Keatley Ruling references PS Knight repeatedly.

We expect that CSA will behave as they have for eight years, using taxpayer dollars to overwhelm and eliminate their victims, in contempt for law and decency and integrity and, now, in defiance of a Supreme Court Ruling.

The Keatley Ruling has altered our direction and our plans for the fall.  It’s all good though, there’s still a road ahead of us but we’re now a lot closer to the end of it.

We’re nearly there folks, thanks for standing with us!