Public Review Ruling
January 2nd, 2018
Hello. Welcome to the Ruling announcement. The quick summary? We won (mostly).
The Canadian Standards Association (CSA) will be allowed to release the Electrical Code on schedule in January but boy, did they pay a crushing price for that.
The hearing pretty much flattened CSA. They lost their jurisdiction arguments, they lost their Serious Issues arguments, they lost their Irreparable Harm arguments -frankly, CSA lost all of their arguments and positions on all matters of substance and consequence. Catching perhaps a 5% reprieve with the Code itself, and that only for a few months’ until the Manson appeal, is a pittance relative to their losses in this Ruling.
This is a really, really big win for us. With this Ruling, we’re in a dominating position in Court, and CSA’s standards racket is now on death watch. Yes, it’s that big.
Why? Well, what follows is an explanation of our lovely, big bloodbath Ruling, its significance and how CSA is now quite screwed.
Let’s start with CSA’s first argument. Their first argument to Court was that the Judge, Justice Richard Bell, had no jurisdiction to Rule at all. Apparently Justice Bell was supposed to “dismiss the entire claim.” They lost that argument.
From the Ruling; “At the hearing, CSA contended I had no jurisdiction to consider this application for an interlocutory injunction because the Moving Party [that’s us] had failed to establish it sought injunctive relief in its originating process.” In other words, our Motion was new. But, said the Judge, “I disposed of that argument at the hearing, having satisfied myself that an issue had been raised in the counterclaim which […] was sufficient to ground a claim for an injunction.” Justice Bell was being polite; the CSA had falsely told him that we’d never raised these issues before but, of course, we had, and repeatedly and at length in past Motions and a series of discovery sessions.
Alright, next was the matter of CSA’s standards as voluntary in their nature. The CSA has consistently claimed that their standards are voluntary, whereas we have claimed, just as consistently, that these standards are passed into law and, as laws, CSA standards cannot be considered voluntary. Obligation is intrinsic to law; voluntary compliance is nonsensical. We won that too.
“The CSA’s Code […] becomes law automatically in some Provinces,” with the Ruling specifically mentioning Alberta as one such jurisdiction (PS Knight is an Alberta registered corporation). Justice Bell then reiterates; “the Code becomes mandatory in several provinces immediately upon its publication.” And he hammers it; “Contrary to CSA’s assertions, large swathes of the Canadian public will have no choice but to comply with the Code once it is published in 2018.” These standards then, are mandatory in their nature.
Recall that CSA has claimed for convenience, and for decades, that standards passed into law are voluntary. Well, that claim, so central to CSA’s litigations and so routinely relied upon by them in Parliament, has just been decimated.
The CSA also argued that our Injunctive Motion was “so ill-founded and so obviously brought for improper, vexatious, ulterior motives” and that the sum of our arguments are “hopeless,” indeed so utterly baseless as deserving of “rebuke.” The Ruling didn’t quite agree. The CSA’s dozens of breathless paragraphs got shut down with one line:
“I am of the view that the Moving Party raises a Serious Issue for determination by the Court.”
The CSA couldn’t bully the Court from considering the Motion on arguments of jurisdiction, and they couldn’t bluster the Court on material issues either.
Next on tap; Irreparable harm.
A successful injunctive application needs to demonstrate irreparable harm. Justice Bell defined it this way; “irreparable harm is met when there is a risk of damages for which compensation at trial would be impossible to determine”. In this, he Ruled that “in the event that CSA has failed to meet the [Standards Council of Canada’s] public review requirement, the harm caused to the Moving Party […] would be irreparable for the following reasons”. And then he listed them.
So, if it’s true that CSA has violated the public review law, then irreparable harm is proven. Why?
“First,” said Justice Bell, “the Canadian public in many provinces (including the Moving Party in Alberta) would become subject to a regulatory scheme that has been developed in a manner inconsistent with legislative intent.” The intent of any public review law is to enable public review, hence the breach.
“Second, the Moving Party […] would have been denied the opportunity to review a mature draft of the revised standards, contrary to the” public review law.
In this then, if the CSA is indeed in breach of the public review law, then irreparable harm necessarily exists.
That brings us to the ultimate question; was CSA found in violation of public review laws?
Why yes, actually. “The mature Code has clearly not been available for public comment for 60 days.”
That’s about as clear as Rulings get, folks. Using “clearly” is clearly a message from the Court. Ambiguity is fast fading for CSA.
The CSA has been Ruled in violation of law, which means that irreparable harm exists, and this will shortly start a new and exciting headache for CSA.
For all that however, the Court declined to grant the injunction itself. The reasoning stems from what’s called “balance of convenience.” That is, the cost to the Moving Party of not getting the injunction must be greater than the cost to the CSA of having an injunction against them. In this, the Court noted CSA’s claim that an injunction “will cost [CSA] in excess of $1 million”.
Of course, this is the cost estimate that was one-tenth of that figure in testimony earlier in that same week. It’s also the estimate featuring a $71,000 charge for posting a document to CSA’s website. So, you know, it’s not especially solid, this number.
That the Court took CSA’s contradictory cost claims at face value is the result of CSA sending the Court ~400 pages of convolutions for a 2-hour hearing; the truth gets mightily muddied in the mess they’ve been spreading. They put two radically different numbers into testimony, both under oath, making one of their figures perjurious. But obfuscation is a tactic, an annoyingly effective one.
So CSA escaped the injunction by lying to Court. But their momentary relief has come at a massive cost.
Ruling that the current Code has not been submitted for public review means that the next Code cannot be released without public review. The CSA will be compelled to comply with public review law on the next Code edition in three years’ time. And public review means public access, like any law, for free. See? That’s big.
Unless the Federal Government steps in to bail them out, the 2018 Code is therefore the last iteration of electrical law that CSA can conceal before enactment, and the last law that they can sell for money.
We’re seeing the end of CSA’s standards racket.
And it gets even better.
The Ruling repeatedly noted that violations of public review at CSA are not confined to electrical laws. For instance, in his preamble Justice Bell muses; “that the Moving Party raises a serious issue as to whether the CSA’s procedure allows for public review of, and comment upon, a mature draft as required” [emphasis added]. This is the “procedure” that the SCC “has endorsed” for all CSA standards since 2009.
Recall that CSA standards are updated every 3 - 5 years, and that it’s been eight years since the 2009 change to CSA’s public review procedure. In 2018 therefore, every CSA standard currently included in law was released under the “procedure” that Justice Bell Ruled in his conclusion as “clearly” not compliant with public review law.
In other words, every current CSA standard in law is in violation of public review law.
According to CSA’s own Court admissions, there are ~3,000 laws affected. That means CSA is in material breach of public review law in all ~3,000 laws that they drafted or amended since 2009.
At this point, one may recall that the SCC prescribes immediate suspension of CSA’s accreditation as a standards body in the presence of “one or a number of major non-compliances” with public review law. Three thousand in non-compliance is clearly more than one of them.
The CSA is now in really big trouble with the SCC, for the SCC surely can’t ignore 3,000 violations of law, though they’d just as surely like to.
The Ruling also puts the SCC in big trouble with Industry Canada. It was, after all, the SCC that offered a letter of support to CSA in this hearing, assuring the Court that CSA could “define” its own compliance with law.
The inclusion of the SCC letter of assurance was also a violation of the Rules of Court, in that it was inserted into a CSA staffer’s affidavit. This is a no-no, because while our side could cross-examine the affiant, we were denied the chance to cross-examine the author of the letter. It was the SCC’s way of trying to influence the Court without submitting themselves to scrutiny in Court.
Dirty tricks aside, the SCC was already on record colluding with CSA’s violation of public review laws. That’s awkward, because the SCC is supposed to police the CSA. And that’s awkward for Industry Canada, the Department responsible for both the SCC and CSA.
What’s odd about this is how CSA seems mystified by it all. They seemed shocked that we filed the Motion, though they should have anticipated it, then they were shocked that our arguments had merit, though that should’ve been obvious, then they overreacted with a massive flailing of shrill schoolyard allegations, somewhat diluting the remnant of their credibility, and all of this without even countenancing the prospect of resolution prior to the hearing. Nobody called, folks. To paraphrase Abba Eban, the CSA’d never miss an opportunity to miss an opportunity. Their strategic talents are, perhaps, not quite at the absolute apex of business and industry. And the biggest blame falls at the feet of CSA’s General Counsel, Ms Kathryn Dunning-Kruger.
So what happens next?
Well, we’re having friendly discussions with friendlies in Ottawa about how unfriendly CSA / SCC is to this law, and to laws in general. We’re also pressing the SCC to abide by their own regulations by suspending CSA’s accreditation. Next, we’re looking at the irreparable harm aspects of the Ruling, for CSA ought to be returning some of their ill-gotten gains to all those harmed by CSA’s abuses and violations.
As for CSA itself, we expect some frantic lobbying in Parliament for yet more special rights at public expense; namely, an exemption to the public review requirement, so they can amend legislation without even a pretext of transparency. It’s bad timing for them though, as Ottawa isn’t desirous of new scandals just now.
Finally, we have our appeal of the infamous Manson Verdict coming later this spring. Manson’s Ruling, that CSA owns legislation privately, is fatally harmed by this Ruling, for the Court cannot easily reconcile the Ruled necessity of public review with Manson’s affirming the right to prevent public access to those same laws.
Our position on correcting the Manson Verdict, already strong before the Bell Ruling, has become nearly unassailable. Yes, we’ve learned that in Court all things are possible, no matter how horrid, so we’ll not get cocky. But if the law is to be respected, then we’re in rather good shape.
The CSA’s completely cornered, and we’re quite pleased.