March 19th, 2017
Regular readers will recall that the Canadian Standards Association (CSA) filed a series of motions with the Federal Court of Appeals to bankrupt PS Knight Co, the owner of RestoreCSA. The Motions Hearing was on January 12th and since then we have been waiting for the Ruling.
This week the Ruling arrived. We won, mostly. What follows is the story of what happened.
Our big Court of Appeal Hearing was to commence at 1pm on January 12 and, to ensure an ontime arrival, I exited Toronto’s Union Station onto Front Street at about noon. Just as it started raining. Hard. The legal offices were about 20 minutes’ walk north of the Station and I had no umbrella. I didn’t have an umbrella because since 9-11 airlines don’t allow them onboard, given the terror of opening-unopening, and the epidemic of umbrella-related atrocities since the Boer War. I digress…..
Cutting the 20 minutes walk to a 10 minute run, albeit in a Malaysian downpour, I arrived in style, quite drenched through. I dried my jacket in the bathroom and coffeed myself in the boardroom and was then informed, with some amusement, that the Hearing was delayed until 2pm. This is standard fair in Court these days, delays are pretty normal.
Close to 2pm, our little group, a clutch of three (myself, my lawyer and his associate) headed from the legal office to the Court of Appeals. We set up shop in the usual manner, the Court room divided approximately in half, the appellants on the left and the respondents on the right. We had our binders out and were ready to roll before CSA’s people arrived.
The CSA team entered with a full phalanx of four lawyers, double our number. And yet, to our surprise, there were no CSA employees in attendance. Now of course, we know why. The CSA’s in-house legal team was being massively renovated as a result of their turbulent war with PS Knight Co and CSA had no-one they could send that wasn’t already fired, retired or punted, or about to be fired, retired or punted, or too busy fretting they might be fired, retired or punted to actually attend the Hearing they had demanded in the first place.
Still, the optics worked in our favour. After all, the CSA’s only strategy from the get-go has been to use the legal process to bankrupt us, and using four goons from Gowlings, all expensive and dressed accordingly, reinforced that image. That, and CSA not bothering to show up to a Hearing in their own city while their opponent, residing a four-hour flight away, beat them to the Court room table, does imply a degree of indifference to cost.
We also noted that Kevin Sartorio, their lead Gowlings counsel, was seated in the second row back from their table, he didn’t seem to be leading his case. His second, David Potter, was seated at the front table but on the right side, being the seat used by the supporting counsel. In the lead seat was James Green, and that was quite odd indeed.
Green is considerably junior to Sartorio. Unlike Green, Sartorio’s growing moss, he’s practiced for seventeen years already. Green, on the other hand, is newest to the CSA file, he’s just green.
The proceedings began and were officiated by Justice Mary Gleason, and that was a good thing as she’s no slouch. Gleason came prepared, she had done her homework and read the considerable material subject to the motions -she was ready to be there and it showed.
It wasn’t quite as obvious that CSA was ready to be there, and that showed too.
James Green’s presentation was our first witness to his delivery. I wrote on my notepad, “shaky voice, may be usual for him.” Shortly, I corrected it to “squeaky voice.” Accuracy, you know.
Having a squeaky voice is no barometer of credibility. Bismarck had a squeaky voice and he united the German Empire, and that’s an accomplishment. Throughout the twentieth century, millions of dead people would not have been quite so dead, had it not been for the work of Bismarck. But Bismarck had charisma.
Green advised the Court that their various and dramatic breaches of privilege were partially resolved by a letter Gowlings had sent to the Court, formally withdrawing a handful of the most offensive paragraphs within their filings. It appears that CSA’s counsel were trying to colour the views of the Court without consequence, making all sorts of accusations and cherry-picked nasties about PS Knight, RestoreCSA, etc., in doing so massively violating Court rules, then withdrawing them just prior to the Hearing in the hope that the accusations would influence the Court while the withdrawal of them would save CSA from the penalties for having filed them at all.
“Then, smudge it all over,” thus spake a Whitehall civil servant, and that’s what Green was trying. He told the Court that the worst of the breaches were withdrawn anyway, so there’s nothing to penalize CSA for, and the balance of apparent breaches would be commented upon by his colleague, David Potter, in the following hour. So, he split the issue, gave the impression that it wasn’t that big of an issue, that some of the issue no longer was an issue, and whatever the issue remaining will be dealt with later on. It’s called obfuscation, and Gowlings is good at it.
Then Green went for gusto; he claimed that the Hearing, the various CSA motions, the entire T-646-15 case, and CSA’s original T-1178-12 case and, by implication, the CSA’s other duplicate case against us in Provincial Court, are all the fault and responsibility of PS Knight Co. We are, he said, “the author of their own misfortune.”
I wrote another note; “I started all of this?”
Apparently the various duplicated CSA legal actions against PS Knight Co were in response to our intransigent and malevolent character, much of this evidenced in their cherry-picked breaches of privilege, though responsibly withdrawn to prevent it colouring the opinions of the Court. That induced some barely suppressed laughter from our table. Indeed, Green continued, the fact that CSA has felt compelled to launch so many litigations against us is, itself, “proof of ill will” at PS Knight Co.
Caught that? Their multiple litigations are our fault; their filings are our responsibility; we are the authors of our own misfortune. The CSA was minding it’s own [government] business when PS Knight ruthlessly and viciously, somehow, provoked the CSA’s actions against us, all defensive in nature, all trying to protect themselves from the bullying and intimidation they’ve suffered from our wee outfit.
Yes, well, it was a tough act, and Gowlings didn’t get the oscar. But not for lack of effort.
Green had a “shaky hand” and his “paper is trembling” but, in fairness, in a note I wrote near the mid-point of Green’s performance, I conceded that “he was solid.” His delivery may have been shameless, duplicitous, deceitful and sometimes comical, but his points were delivered competently.
Green’s big problem went beyond a weak argument; he doesn’t have presence. I wrote on my notepad, “all the charisma of a sack of manure.” That was a quote, by the way, and technically a misquote, as wrongly recorded from memory. From the original, it was said of Gothard Heinrici that he was “as charismatic as a 20-pound sack of fertilizer.” Either way, it works.
Next was CSA’s complaint about our financials. As part of the Court process, we’ve had to submit them. Curiously, and as testament to the uneven nature of the Court system, CSA has not had to file their financials. Only us.
Regardless, their complaint was that we furnished our 2015 financials whereas, said Gowlings counsel, it was now 2017, fully two years later. PS Knight had furnished dated financials and therefore had not complied with Court orders.
Our counsel quietly rose to remind the Court of what Justice Gleason appeared to be smirking about, that PS Knight financials are filed in April for the previous year, such that the 2015 financials were the most recent available at the Hearing.
Recall that arguments made in Court are assembled with client input, client editing, and client approval. The CSA spends over a third of a billion dollars of your money every year, but they aren’t familiar with the basics of financial reporting. That’s worth pondering for a moment.
Green then sat down and the other sidekick lawyer, David Potter, rose to explain the other half of CSA’s breaches of privilege.
Potter fumbled a fair bit and put his proverbial foot in it a couple of times. Notably, he admitted “such similarity” between CSA’s various litigations against us, further admitting that their filings contain “paragraph for paragraph” duplication. That’s what we’ve said repeatedly; that the CSA litigations were cut-and-paste jobs, all essentially the same and designed to maximize our legal costs. Anyway, the “similarity” between cases was Potter’s excuse for their unlawful inclusion of privileged information. They were claiming that they just mixed up the different Hearings, mistakenly including some text for the one into the filings for the other.
I wrote a note; “you can argue anything, integrity is nothing.”
Potter’s last item dealt with our evidence. Recall that PS Knight’s evidence of our contributions to electrical law includes several thousands of pages of drafts, working papers, etc. plus many hours of audio recordings of Code development meetings. Recall that CSA’s equivalent evidence is non-existent. That is, they have furnished no drafts, no working papers whatsoever -absolutely nothing to support their copyright claims on electrical law.
In this context, Potter was trying to recharacterize PS Knight evidence as irrelevant. For instance, he told the Court that PS Knight’s original records of government correspondence, on government letterhead, signed by known government officials, was not necessarily government correspondence. As he put it, there was “no evidence to assist me” in what the documents were. Nothing, that is, apart from the heading, the letterhead, the signatory, and the content.
Then he tried to suggest that all of our government documentary evidence was not credible, instead it was merely “hearsay.” I was reminded of a similarly improbable exchange, a recharacterizing of witness testimony, as;
Humphrey: “[It’s] hearsay, Minister”
Humphrey: “Yes, Bernard heard him say it.”
Then, thankfully, Potter sat down. I was frustrated, I wrote a note; “contempt proceedings”.
Thus ended the Hearing. And now, about nine weeks later, thus is rendered the Ruling;
“This Court Orders that paragraphs 36, 40-44, 71-76, 88-92, 101, 102, 115-117, 129-131 and 163–167 and the exhibits referred to therein […] be struck from the affidavit.”
That’s CSA’s privileged information going in the bin. Note the paragraph numbers, there’s an awful lot of win there. As to characterizing the breaches, Justice Gleason was delicate in her phrasing;
“These paragraphs relate to settlement discussions and accordingly their inclusion in the materials was improper.”
Then comes the fun part. Read carefully;
“As concerns the rest of that affidavit that is impugned by the appellants and the subsequent affidavit from [CSA’s] Doug Morton that the respondent seeks to file, the [CSA] has convinced me that the evidence contained in these paragraphs and supplemental affidavit is of some relevance to the Stay Motion and the Enforcement Cross-Motion. More specifically, much of this evidence speaks to the extent of litigation between the parties and is thus relevant to the appellants’ claim that requiring compliance with the Federal Court’s costs award would make it impossible for the appellants to pursue their appeals. Thus, the further paragraphs impugned in the May 16, 2016 Morton affidavit should not be struck.”
Let’s unpack that. You see, we had argued to Court that CSA’s various motions were fairly transparent attempts to bankrupt PS Knight Co. The CSA disputed that. But the CSA also argued that their affidavit containing all that privileged information was the result of honest errors by CSA in mixing their various litigations because, you know, their litigations have “such similarity.” Justice Gleason pounced on that; noting that their multiple duplicate litigations were evidence of abuse of process, that it showed CSA’s intent to bankrupt PS Knight. In this, Gleason struck all the privileged portions of the affidavit while leaving intact those portions that illustrated CSA’s “paragraph by paragraph” duplication of lawsuits.
Folks, the Court used CSA’s own argumentation on one Motion to “convince” the Court on a different Motion of the veracity of PS Knight’s claim of abuse of process.
Justice Gleason continued in her Ruling;
The “financial resources of [PS Knight] are limited and therefore that it is likely that [PS Knight] would not be able to pursue their appeals if they were required to comply with the monetary portions of the Federal Court’s judgments. Indeed, counsel for [CSA] indicated during argument that the motivation for [CSA’s] enforcement request was a desire to foreclose the appellants’ pursuit of these appeals.”
Then, finally, she dealt with CSA’s curious claim that all of these proceedings are the fault of PS Knight Co., saying;
“Contrary to what the [CSA] claims, I do not believe that the conduct of the appellants is such that they caused their own impecuniosity. Rather, much of the monies they have spent in litigation have been spent defending actions brought by [CSA].”
And that’s how it landed.
Taken as a whole, we lost a couple of minor items, some evidence will be entered into the 1178 defence (CSA’s first lawsuit) rather than the 646 defence for instance (CSA’s second lawsuit), and we won a couple of other items. The ones we lost were annoyances, inconsequential, but the ones we won were critical and bode very well for the coming months. As in hockey, they won the face-offs, but we got the goals.
What’s next in the process? Well, first, the Court is unlikely to order any more mediations or negotiations as, given CSA’s record of perspective and attitudinal problems, these required sessions have proven quite futile thus far. The CSA has resurrected a Motion to Compel that had already been set aside by Justice Hughes as it was pointless and transparently abusive of time and money. That Motion, incidentally, contains several hundred questions about the identities of our sources. We do not compromise our sources. In the near future we’ll have to deal with that Motion again and, if all goes to schedule, we will be in Court on the first of CSA’s litigations (the second of their litigations, but the first to Court) sometime later this year. That’s also when we’ll find out if Gowlings’ Kevin Sartorio is still on the file.
Finally, we have received a significant outpouring of support since January as we awaited the Ruling. The support and encouragement that we have received, and continue to receive, throughout this fight is sincerely and warmly appreciated.