Litigation Update Q1 - 2019
March 4th, 2019
We’ve been pestered to do another litigation update. That’s fair, it’s been a year since we did one, and some road-mapping might be in order. The fact is that the various Canadian Standards Association (CSA) litigations tend to seem a muddle, it’s easy to lose track of which case is where and what’s coming next.
The muddle, incidentally, is deliberate. I recall a teleconference with a Federal Prothonotary (a senior Court official, responsible for scheduling and chaperoning cases), sometime in 2015. During this call, Kevin Sartorio, the CSA’s lead lawyer, proposed splitting their main case into several Hearings, as a Summary Judgement, then an Injunctive Hearing, and whatever residual issues remained to be dealt with separately in the original case file. This, he proposed, in the interests of clarity and efficiency. I nearly burst out laughing.
Well, the Prothonotary didn’t think CSA’s proposed massive complication would improve clarity or efficiency and, to her credit, she said so. The whole point of duplicating Court processes is to increase the complexity, the workload, the legal costs to PS Knight and, of course, to make a muddle of the whole thing. Things get lost in the muddle; the more muddle, the more CSA’s duplicity is easier to conceal.
The CSA lost the argument on that call but they’re nothing if not relentless. Within a few weeks they’d found a way ‘round the Prothonotary’s refusal. They filed an entirely new lawsuit, identical to their previous lawsuit, resulting in exactly the same duplication their rejected splitting proposal would have produced. And that’s how what’s called the 646 litigation got started.
So where are we in all these litigations? Glad you asked. Here you go…
This is the most active of CSA’s litigations. The CSA’s excuse for this lawsuit was PS Knight’s publishing of Knight’s Code, a book authorized under Queen’s Printer Copyright and for which we’d also received CSA’s blessing to produce. That’s right, they’d already agreed we had the right to publish it, they’re now just telling the Court they “lost their institutional knowledge” on the matter. Translation; “we forgot about that.”
Anyway, the first 646 Hearing gave us Manson’s Law, the Ruling that legislation is privately owned. As you may recall, it turned out that Justice Michael Manson was actually a CSA employee. It was incredibly illegal for Michael Manson to Hear a case between PS Knight and his own employer, and we said so in a report to the Chief Justice, Paul Crampton. Though Crampton has responsibility for policing his Court, in his enlightened wisdom he determined that Manson’s material violations of the law were in no way material violations of the law. Crampton did nothing.
We appealed the Manson Ruling to the Federal Court of Appeal (FCA) and had a lovely Hearing, pretty much everything therein going in our favour. The FCA Ruling, arriving nine months later, was against us. We were amazed, and we have reason to question the integrity of the FCA in this Ruling and, in time, will publish on our concerns.
The SNC scandal is giving the public a chance to peer behind the curtain, to see how legal processes work in practice. Consider all those secret meetings between the Prime Minister, the Country’s top civil servant, and the Attorney General to try to cook a Court case, then the Privy Counsel Office inquiring to “engineer the issues at stake” in the Mark Norman case, and then the testimony of Privy Counsel Clerk Michael Wernick -the ultimate insider- that any suggestion of legal impropriety by the civil service is “erroneous, unfounded speculation and, in some cases, is simply defamatory.” Uh-huh. This feels so very familiar. It’s almost like the same influence presently and repeatedly on scandalous display was also practiced in favour of CSA.
That’s worrying, as right now the Supreme Court of Canada is considering our request for leave to file an Appeal. We don’t know when they’ll decide, but we’re expecting word from them in the next week or two. The Keatley case (on who owns public records) is scheduled for March 29th, and we’ve asked for concurrency in Hearing so, if the Court is willing, we’ll either have our appeal heard on March 29 or the Court will reschedule Keatley so both can be heard later this spring. That said, if the Supreme Court is as compromised as the lower Courts on civil service matters, we could be in trouble. For comparison, recall that FBI Agent Peter Strzok and DOJ lawyer Lisa Page were happily attending barbecues at FISA Judge Contreras’ residence, the same Judge they were presenting to, the same judge they were beholden to. And that was the crooked start of a very crooked affair (pun intended). It’s a similar story in Canada; those with Federal power enjoy the same social circle, they know each other personally, and that familiarity is how influence is quietly peddled.
We’ll know our status on the Supreme Court filing soon enough.
Another of CSA’s duplicate lawsuits, the de-facto split they originally tried for, is the attempt within the 646 litigation to prevent PS Knight from publishing Knight’s Code. Readers will recall that they lost this Federal Court effort in November of last year. Naturally, the CSA is appealing to the FCA. Yes, it’s silly, as the whole matter is already bundled before the Supreme Court right now, but from CSA’s perspective this pointless duplication is costing PS Knight a fortune and it’s costing CSA nothing (it’s your money folks, these are tax dollars being used) so, you know, why not keep at it?
The CSA has filed their papers with the FCA, we’re awaiting word on particulars and will respond, with reluctance and annoyance, in due course. Nothing exciting happens on this file until at least the fall of 2019.
Ontario Provincial Litigation
Late in 2018, we put a Motion before the Provincial Court to dismiss CSA’s duplicate lawsuit there. We did so on the basis that CSA’s duplicate lawsuits are basically cut-and-paste jobs, with near identical text from one to the other. In this, the filing of multiple lawsuits on the same issue, against the same party, in the same jurisdiction, is a pretty transparent attempt to financially harm the victim. This is what anti-SLAPP legislation exists to prevent. And our Motion was submitted with specific reference to Ontario’s latest anti-SLAPP law.
We expect to hear the Ruling on our Motion later this month.
Nothing to report here, sorry. The 1178 litigation is the CSA lawsuit that started all of this in 2012. Amazingly, we’re seven years into this and we haven’t seen the inside of a Court room on the litigation that started it all.
The 1178 litigation will re-commence either if the Supreme Court Rules that they won’t hear our appeal or, alternately, upon their Ruling on the Keatley / CSA Hearing. Further, our counterclaim for damages is within 1178, so this case isn’t going anywhere quickly.
There have been other CSA litigations. The CIRA case, for instance, but these have already run their course and we won them. We won expensively, and that was the whole point of course, but I’ll not belabour these other CSA cases here as they’re no longer ongoing.
And all that, my friends, is where we stand right now. Thank you for your support through all of this!