The Steeper Slope

January 4th, 2016

PS Knight Co Ltd, the owner of RestoreCSA.com, has lost a battle in its fight with the Canadian Standards Association (CSA). 

First, some history

In 1966, PS Knight thought it would be a terrific idea to publish an electrical guidebook.  CSA thought it was a terrific idea too, they gave PS Knight their blessing, and for the next 35 years the CSA contributed to every guidebook that PS Knight published.  Then CSA started publishing their own guidebook, making PS Knight into a competitor.  CSA didn’t think other people’s guidebooks were a terrific idea anymore.  Actually, being a public Agency didn’t feel terrific anymore either, so CSA started behaving like a business.  They wanted the profits of business without the competition of business. 

After a long and annoying series of attempts to undermine and eliminate PS Knight, and when none of these attempts succeeded, the CSA launched a lawsuit against PS Knight in Federal Court.  Their argument?  Well, the CSA argued that electrical laws in Canada are privately owned by CSA so that nobody, like PS Knight for instance, can legally quote from them, instruct or comment upon them, or enforce them without paying CSA for the right to do so.  They also argued that their three decades’ worth of contributions to PS Knight’s guidebooks never took place, that their signed authorization furnished to PS Knight in 1969 was illegitimate and possibly a forgery, and that electrical law itself isn’t really the law.  No, electrical “law” is just text.  Text that is passed into law perhaps, but it’s still just text.  Oh, and it’s enforced as law.  But otherwise the law is just text, so obviously CSA can privately own it.  It’s like speed limit signs on a highway; that text isn’t really the law itself, that text just refers to the law -that sort of thing.

Their argument could be called “novel,” which is a socially acceptable term for “weak.”  A less charitable mind could engage the language of Shakespeare more aggressively, referring to the CSA position as legally fragile, anemic or frail.  Or feeble, effete, faltering nonsense.  Or flaccid foggy-minded musings of impuissant, senile rubbish.  And so on.

Regardless, in light of their remarkably novel argumentation, the CSA thought it best to avoid testing their case in an actual courtroom.  Instead, they would try to bankrupt PS Knight before their case ever got to trial.  As your correspondent stated in his first media interview in 2013, “their tactical approach has been to bleed us financially.”  And so they have.

We have been the pleasant guest at an enormous series of time-wasting meetings, another series of time-wasting mediations, several full-day time-wasting negotiations, and a further series of time-wasting discovery sessions featuring many hundreds of questions from CSA counsel, seemingly arrived at without preparation and haltingly delivered with repetitive, coma-inducing pauses distancing the each of them.

But we didn’t go bust.  Each meeting costs money and each hour of discovery costs a lot, and by the spring of 2015 we had been in this legal maelstrom for over three years but, to CSA’s frustration, we were making progress, we were moving toward trial.  That, and in the process we were shining sunlight on CSA conduct.

So, to slow our progress and speed our decline, CSA decided to launch a series of new and exciting Court motions, coupled with entirely new actions in entirely new jurisdictions.  They would bankrupt us by sheer duplication of proceedings.

On April 23, 2015, CSA filed a new lawsuit against PS Knight in Ontario provincial court.  This new filing was actually the Federal Case, it was so much a cut-and-paste job that most of the “new” action was actually a verbatim copy of their existing three-year old Federal lawsuit. 

The next day, on April 24, 2015, CSA filed another new action in Switzerland with the World Intellectual Property Organization (WIPO), the particulars of their case being identical and, once again, a nearly verbatim copy of the Federal lawsuit.

Also on April 24th, CSA filed a third new action in British Columbia with the Canadian Internet Registration Authority (CIRA), again duplicating their arguments from the Federal lawsuit, the Ontario lawsuit, and the regulatory action in Europe. 

Each of these cost us money to defend, and that was the whole point for CSA.  After quite an expenditure, PS Knight won the action in British Columbia on June 25 and the action in Europe on July 6.  In both cases, the CSA’s actions were dismissed on the basis that they already had an action underway in Federal Court and that any new action on the same issue is a duplication of an existing lawsuit.  That left only the Ontario action remaining.

On October 6 2015, PS Knight asked that the Ontario Court either dismiss the CSA’s latest action or stay it until the Federal action has resolved. 

Our argument focussed on the fact that CSA’s Ontario lawsuit was factually identical to their Federal lawsuit.  As a matter of legal principle, one cannot be sued in multiple or overlapping jurisdictions by the same party on the same issues.  Why?  Well, there’s always the chance that in such multiple cases that a defendant could be found guilty in one jurisdiction and innocent on the same issues in the other jurisdiction.  Yet one cannot be both guilty and innocent of the same thing at the same time.  This is why both CIRA and WIPO dismissed CSA’s cases. 

One may recall the trouble faced by Maclean’s Magazine and Mark Steyn, an obscure self-publishing author from New Hampshire, at the hands of Human Rights Commissions in British Columbia and in Ontario.  Like us, they were facing duplicate actions in multiple jurisdictions.  In the wake of their conclusive victory, Maclean’s expressed “grave concerns about a system of complaint and adjudication” that allows someone “to be pursued in multiple jurisdictions on the same complaint, brought by the same complainants, subjecting it to costs of hundreds of thousands of dollars”.  Yes indeed, we can relate to this.

On December 22, 2015 however, the Ontario Court gave us our first loss, dismissing our request and ensuring that the duplicate action in Ontario will proceed.

In his Reason for Decision, the judge affirmed our contention that duplicate actions are legitimate grounds for a dismissal or a stay of proceeding, stating that “Rule 21.01(3)(c) provides that a defendant may move before a judge to have an action stayed or dismissed on the ground that another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter.”

The judge also conceded “the possibility of inconsistent results,” that of being found both guilty and innocent on the same issue.

The judge further affirmed his understanding of our concerns with duplicating the lawsuits, stating as follows:

“The factors that featured most prominently in Mr. Knights and his corporations argument to justify a stay were that: the factual footprint of the two actions was the same; the action in the Federal Court was well advanced; substantial issues including a defence that the statements about CSA’s conduct are true statements would be resolved in the Federal Court […]; and it was oppressive and unfair that Mr. Knight and his corporation were put to the task of simultaneously defending two actions because being forced to do so might lead to their inability to adequately respond to both matters.”

In the wisdom of the court however, and in the words of the Judge, “In my opinion […], there is no unfairness in having the proceedings proceed in tandem.” 

Where does this leave us?  Well, in Ontario it means that we’ll have to fight the Federal lawsuit a second time, perhaps at the same time.  It means that our costs will increase dramatically.  The ruling is also a precedent, it means that CSA has a new option in their little war against PS Knight Co.  That is, they can now launch additional duplicate actions against PS Knight in, say, Quebec, Manitoba, New Brunswick -they can go jurisdiction shopping.  And we’ll have to pay for that too.

The CSA has plenty of incentive for duplicating their lawsuits.  They fear the trial, and with good reason, hence all their time wasting.  Their fear of trial and the exposures that a trial creates is also the basis for their multitude of motions.  Every motion has a cost, and CSA has calculated that the sum of these costs will destroy PS Knight prior to trial. 

Our recourse is to push to trial in the Federal case as fast as possible.  Later this spring it will be four years since CSA launched their lawsuit and immediately thereafter started delaying its progress.  Getting to trial exposes CSA argumentation to the judicial light of day, and nothing sanitizes like sunlight.  Trial also exposes CSA conduct in a host of other embarrassing areas.  These areas of course, would be off limits in Federal Court, were it not for CSA unwittingly introducing them into both Federal and Ontario processes.  In sport that’s called an unforced error.

We have everything to gain in Court and, frankly, not much at all to lose.  We just need to get there.

In the words of one transAtlantic cat fancier and radio DJ; “I’m bored with this, and said long ago that my wish is to go to trial as soon as possible, as it’s the fastest way to wrap it all up.”  So it is, for us too.

Thank you for your continued support.