April 23rd, 2018
It’s been a hectic week. The last few days have featured a trip to Toronto for legal meetings, always thrilling, and came with the usual annoyances of four-hour red-eye flights in baggage class and a healthy diet of Five Guys.
Then we had a Court delay. The latest pointless lawsuit from the Canadian Standards Association (CSA) was scheduled to be heard at the end of this week. Well, it’s been postponed until May 15th. There’s nothing nefarious in this, it’s just a Court scheduling issue, creating scheduling issues for all of us.
Next we had a printing issue with a couple of our publications and, as a result, the Commercial & Industrial book will be late for release. Again, nothing untoward took place, it’s just a publishing problem. Still, it capped off a crammed week.
In this, I didn’t have time to draft the usual glorious, epoch-shatteringly well written masterpiece of literature known as a RestoreCSA article. Instead, for this week’s edition I enclose the CSA’s unlawful letter to the Federal Court of Appeal, followed by our responses to it.
Why read these? Well, some folks might find them interesting. There are, after all, people who enjoy reading legal documents. Not everyone is well balanced, you know.
Seriously, reading a set of actual filings from both sides is a good opportunity to assess for yourself which side has the stronger argument. The rollicking read then, could be enlightening.
Actually, it could be jolly entertaining. You’ll note that CSA’s unlawful filing is oddly abbreviated, being only one page in length. Our response, submitted at the invitation of the Court, is a lot more robust. As Court filings, both documents are public and are reproduced here in full.
CSA’S UNLAWFUL LETTER
We are Counsel to the Respondent, Canadian Standards Association, in the above-noted appeals. We write further to the hearing of these appeals which was held in Toronto on March 1, 2018. We ask that this correspondence and enclosures be brought to the attention of the panel which heard these appeals, namely, Justice Webb, Justice Gleason, and Justice Rennie.
We enclose for the Court’s consideration additional authorities relevant to certain issues raised at the hearing of these matters which have recently come to CSA’s attention:
1. The effect and exceptions to the Reproduction of Federal Law Order, SI/97-5 13 c Gaz (Pt II), 444 are clarified in the Government of Canada’s commentary on that Order as found on the “Copyright Terms and Conditions” webpage published by the Government of Canada (Ministry of Innovation, Science, and Economic Development Canada) (enclosed).
2. At the hearing of these appeals consideration was also given to the possible imposition of criminal or quasi-criminal sanctions for non-compliance with Federal or provincial statutes or regulations wherein the Canadian Electrical Code, Part 1, has been incorporated by reference. The Statutory Instruments Act, RSC 1985, c S-22, s. 18.6 provides that the relief in the event a document incorporated by reference is found not to be ‘accessible’ is that a person is not liable to be found guilty of an offence for any contravention of that document (enclosed).
3. Finally, the Alberta Regulations Act, RSA 2000, c T-14, s. 2(d) specifies that documents which are incorporated by reference are not ‘regulations’ under Alberta law (enclosed).
A copy of this correspondence and enclosed additional authorities has been provided to counsel for the Appellant on today’s date.
PS KNIGHT’S RESPONSE (BY COURT INVITATION)
1. These submissions address the following issues raised by the respondent, Canadian Standards Association (“CSA”), in their correspondence dated March 29, 2018:
(a) The effect of the Reproduction of Federal Law Order SI/97-5, (1997) 13 c Gaz (Pt II), 444 and the exceptions to the Order.
(b) The effect of the Statutory Instruments Act, RSC 1985, c S-22 (“SIA”) with respect to documents incorporated by reference.
(c) The Alberta Regulations Act, RSA 2000, c R-14 specifying that documents incorporated by reference are not Regulations.
The effect of the Statutory Instruments Act R.S.C. 1985, c. S-22
The following sections of the Statutory Instruments Act (“SIA”) and reasons compel the conclusion that the Canadian Electrical Code (the “Code”) is Crown copyrighted:
(a) Section 18.1 – The Crown has the power to incorporate by reference.
(b) Section 2 – The definition of a statutory instrument and regulation.
(c) Section 18 – The Crown has an obligation to provide copies of the Code.
(d) Section 18.3 – The Crown has an obligation to make the Code accessible.
(e) Section 12 – The Crown has the power to publish in the public’s interest.
(f) The Crown’s rights and obligations under the SIA fulfil the requirements set out in section 12 of the Copyright Act.
Section 18.1 – The Crown’s power to incorporate documents by reference
3. Pursuant to the Statutory Instruments Act (SIA), the power to make a regulation includes the power to incorporate in it by reference a document as it exists on a particular date or as it is amended from time to time.
4. Incorporation by reference means that the Code becomes an integral part of the instrument and as if the text was actually reproduced therein. The Code must become part of the regulation itself because “true incorporation” attracts translation obligations under s. 133 of the Constitution Act 1867 and the effect of incorporation by reference is that the extrinsic document is written right into the Act.
Section 2 – The definition of a statutory instrument and regulation
5. In the Canada Labour Code (the “Labour Code”), Parliament provided the Crown with authority to incorporate a standard by reference when making regulations.
6. The Canadian Electrical Code (the “Code”) has been incorporated by reference into the Canada Occupational Health and Safety Regulations (“Labour Code Regulations”). The Regulations are prescribed for the purposes of the Labour Code; therefore, contravention of the Code is an offence punishable by a fine of up to $1,000,000 and two years imprisonment.
7. Therefore, the Code is a regulation because there is a penalty, fine or imprisonment prescribed for contravention of the Labour Code Regulations.
Section 18 & Section 18.3 – The Crown’s obligations to provide copies of the law and access to documents incorporated by reference
8. Pursuant to section 18 and 18.3 of the SIA, the Crown is obliged to provide copies of statutory instruments to any person upon request and ensure the Code is accessible.
9. Statutory provisions, placing an obligation on the Crown to make certified copies upon request and ensure the Code is accessible, prove that the Crown must have control over the Code and/or a prerogative copyright over the Code. This is because the Crown’s obligations under the SIA are fundamentally inconsistent with CSA’s claim to a private copyright over the Code.
Section 12 – The Crown’s power to publish in the public’s interest.
10. Further, pursuant to section 12 of the SIA, the Crown has the power “to publish any statutory instrument or other documents, or class thereof, in the Canada Gazette, and by the Clerk of the Privy Council, where, in [the Crown’s] opinion, it is in the publics’ interest.”
11. The power described in section 12 of the SIA is discretionary and based upon the publics’ interest. The crown prerogatives are great constitutional rights which are based upon principles of public policy and exist for the benefit of the people. Therefore, the Crown’s power in section 12 of the SIA is consistent with the Crown possessing a prerogative copyright over the law; and therefore, the Code.
The Crown’s rights and obligations under the SIA fulfill the requirements set out in section 12 of the Copyright Act R.S.C. 1985, c C-42
12. The SIA is consistent with section 12 of the Copyright Act and supports a conclusion that the Crown has published the Code and therefore owns a Crown copyright over the Code.
13. Pursuant to section 11 of the SIA, the Crown publishes all regulations in the Canada Gazette. In addition, the Crown’s provision of copies of statutory instruments to members of the public is also clearly publication.
14. Further, pursuant to section 18.3 of the SIA, the Crown must make the Code accessible. It necessarily follows that the Crown must be in control of the Code in order to ensure it can fulfil it’s statutory obligation to make it accessible.
15. Accordingly, section 12 of the Copyright Act dictates that copyright vests in the Crown because the Crown published the Labour Code Regulations in the Canada Gazette and publication of the text of the Labour Code Regulations included the text of Code due to its incorporation by reference.
S. 18.6 of the Statutory Instruments Act
16. In response, CSA submits that section 18.6 of the SIA, which provides that no person is liable for contravention of the Code if it was not accessible, remedies the major issues raised with respect to private copyright over the law and safety regulations.
17. The CSA’s suggestion would mean that anyone could infringe important safety legislation, such as health and safety or children’s playground equipment regulations, with impunity. The result of this would be chaos because the Crown’s ability to govern through promulgation and enforcement of the law would be undermined.
18. In conclusion, the public’s right to know the law and the Crown’s obligation to disseminate and enforce the law is diametrically opposed to a copyright holder’s right to exclude his work from any publication or dissemination.
The Reproduction of Federal Law Order
19. The Reproduction of Federal Law Order SI/97-5, (1997) 13 c Gaz (Pt II), 444 (the “Reproduction Order”) is an order of the Governor General in Council (“GGC”).
20. The Reproduction Order is a proclamation. Therefore, it is a statutory instrument. Without copyright over the law, the Crown could not authorise free reproduction of the law in a statutory instrument. Therefore, the Reproduction Order proves the Crown claims copyright over federal law.
21. The Reproduction Order states that “anyone may reproduce enactments”. The Code is an integral part of the regulation itself and must be treated as if the text was reproduced therein. The Code is not value-added material like a headnote or marginal note. Accordingly, the Reproduction Order ought to apply to the Code.
22. Further, the Reproduction Order also states that the reproducer must be careful to “ensure the accuracy of the materials reproduced and that the reproduction is not represented as an official version.” The concern addressed by the closing statements of the Reproduction Order are consistent with the Crown’s obligations to make official copies of the law available and accessible pursuant to s. 18 and 18.3 of the SIA.
23. Accordingly, the Reproduction Order is also consistent with the SIA, the Interpretation Act and Crown copyright over the law.
Alberta’s Regulations Act
24. Alberta’s Regulations Act (“ARA”) deals with the filing and publication of regulations in Alberta. The ARA states that a document incorporated by reference is not a regulation because, pursuant to section 3, the registrar must publish the regulation in The Alberta Gazette. It would be impractical to publish the entire Code. The very purpose of incorporation by reference is to avoid this impracticality.
25. This does not mean that the Code itself is not a regulation or part of it. Indeed, the Ontario Legislation Act, 2006 states the following:
The Power to make a regulation may be exercised by incorporating an existing document by reference, in whole or in part.
26. In Manitoba, the Interpretation Act states the following under the heading “Adopting codes and standards”:
The power to make a regulation respecting a matter may be exercised by adopting by reference, in whole or in part, a code or standard made by a non-governmental body that deals with the matter.
27. Therefore, the ARA does not provide insight into whether the Code is a regulation or law. The ARA provides a guide for what needs to be published in the Gazette.
28. Section 6 of the British Columbia Regulations Act illustrates the purpose of the provincial Regulation Acts when it states:
If a regulation includes a code of, or standard set by, a provincial, national, international or any other code or standard making body, the registrar may exempt that part of the regulation from publication.
29. Accordingly, the purpose of a Regulation Act is to determine what must be published in the Gazette. The Regulation Act does not determine whether a document is a regulation or the effect incorporation by reference has on a documents copyright.
30. Finally, the Ontario Legislation Act, 2006 also states the following: the Minister responsible for the administration of the Act under which the regulation is made shall take steps to ensure that the incorporated document is readily available to the public….. and the incorporated document and any earlier versions of it that were previously incorporated into the regulation or into a predecessor of the regulation remain readily available to the public.
31. Accordingly, the Ontario Crown’s obligations to ensure an incorporated document is accessible is consistent with section 18.3 of the SIA and demonstrates a document incorporated by reference is part of a regulation and the law. Accessibility would not be statutorily mandated if the Code was not law and compliance with it not required.
32. The rights and obligations of the Crown over the creation, publication, copying and accessibility of statutory instruments and regulations compels the conclusion that the Crown holds copyright over the Code and not the CSA.
33. Accordingly, the SIA, Production Order and Regulation Acts all consistently point to the Crown owning copyright over the Code through the Crown’s prerogative copyright over the law and/or pursuant to S. 12 of the Copyright Act.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 20th day of April 2018