Zimmerman’s Discovery

February 3rd, 2019

“Sir, can you describe to me your education post high school?”

The answer; “Could I get your name please?  I don’t know any of the people here.”

Discovery sessions are a tedium.  For an honest witness, they’re about candour.  For a dishonest witness, they’re a pageant of evasive answers, misleading answers, obfuscation and, you know, lies.  Remember; Witnesses don’t have to swear an oath anymore and Canada doesn’t prosecute for perjury.

In the fall of 2017, we were pursuing an injunction against the Canadian Standards Association (CSA) to prevent their publishing the latest electrical Code until they had complied with Canada’s 60-day public review law.  And they were trying not to comply.  And their witness at Discovery, David Zimmerman, was trying to avoid being needlessly honest.

What follows is a regalement of CSA’s antics in the 2017 discovery, all from Court transcript; how CSA bobs-and-weaves, their penchant for misleading statements (I’m being charitable), and their humiliation at being cornered with their own contradictory testimony.  Fun stuff.

So, back to Zimmerman…

Q “Can you give me the highlights of your work experience post university?”
A “Well, I worked at CSA for 35 years on graduation.”

We’ve seen this at CSA before.  A lot of CSA personnel “don’t appear to have any actual business experience.  [Their] whole career experience has been in CSA’s cloistered environment, protected from competition, from having to work for success, or from having to take risks.  In consequence, [they] don’t have the frame of reference in business from which to relate to those actually in business.”

Then we showed Zimmerman a copy of an internal CSA PowerPoint presentation.

Q.  “This is described, Sir, as a PowerPoint presentation in 2013 from CSA.  You have no reason to believe it’s not a PowerPoint presentation of CSA, Sir?”
A.  “As a photocopy, it looks like it would be.”
Q.  “Okay.  And if I can turn you to page—I think I said 41, under the standard.”
MR. SARTORIO (CSA lawyer):  “Is it the box that says ‘Consensus standard versus guidelines’?”
Q.  “Yes.”
A.  “Okay.  Um-hmm.  I see, yeah.”
Q.  “And it says: ‘Typically developed for adoption into regulation.’  So you would agree with that statement, Sir, about the standards?”
A.  “I’m uncomfortable with the term ‘typically’.”

Yes, indeed he was.  You see, for years now, and with only minor slip-ups, the CSA has been testifying that the text they develop is not part of law and is not developed to become law.  Rather, they claim, the fact that the text they draft is consistently passed into law is happenstance, you know, pure coincidence. 

It’s just that CSA knows their claim isn’t true.  On the inside they know the texts they’re drafting are legislation; on the outside they call them “standards.”  In the Discovery room however, we’d cornered them with their own internal presentation.

Based on the CSA PowerPoint, we said, “you would agree with me, Sir, that once the standard is adopted by regulation, it’s no longer voluntary; correct?”

A. “No, I would not agree with that statement.”
Q.  “So you would say it’s voluntary to the extent that people are allowed to break the law?”
A.  “No.  It’s voluntary in the sense that we —it’s a model standard when enacted into law, my understanding—and I am not a lawyer—”
Q.  “Sure, I understand.”  [we may have been smirking at this point]
A.  “…that it’s the legal entity, the authority having jurisdiction, that describes it as being in the law by their law, not by CSA.”
Q.  “No, I understand that, Sir.  But once it’s adopted by a legislature, you would agree with me, then, it’s a standard that must be complied with by people; correct?”
A.  “Depending on how it’s adopted, because the—in many cases, the standard may be adopted as-is at a certain time, but it may not include amendments, so a standard can be amended in our process, but not effectively be part of the law.”
Q.  “Okay.  I’m dealing with if a legislature adopts, for instance, a 2015 code as part of its law, and I’m not talking about the amendments, but the code itself becomes law; correct?”
A.  “In that jurisdiction, yes.”
Q.  “Yes, okay.  And it’s no longer voluntary in that jurisdiction; correct?”
A.  “I would assume so.  Unfortunately I’m not a legal expert.”

Here the CSA is implying that only an expert in law would know for sure if laws must be obeyed.  In fairness, it’s the best Zimmerman could do with the box he’d found himself in.  The CSA’s been claiming in Court and Parliament that their texts are voluntary.  If Zimmerman had said anything clear or definitive on the matter the CSA would look ridiculous.  Or, rather, more so.

Then we got to another matter of compliance with law; the 60-day public review law.  It was like herding cats.  Watch the dodging;

Q. “And you – at least we agree that there is a 60-day review process; correct?”
A.  “Yes.”
Q.  “And, as I understand it, Sir, in order for you to—for CSA to comply with that process, the amendments must be completed before the end of October of 2017; correct?”
A.  “I would think so, yes, for sure.”
Q.  “Okay.  And I take it they were?”
A.  “Yes.”
Q.  “And so, therefore, the entirety of the standards would be available to be provided for review as of November of 2017?”
A.  “The public review period, you are referring to?”
Q.  “Yes.”
A.  “The public review period was done earlier on.”
Q.  “No, no.  But what I’m saying is you’ve told me, as I understand it, that the amendments were completed prior to the end of October 2017; correct?”
A.  “Yes.”
Q.  “So it would be possible, therefore, for CSA to provide a copy of all the standards by November of 2017 for public review; correct?”
A.  “I’m sorry.  I’m confused because the standards were provided for public review well in advance…”   
Q.  “The amendments were, Sir.”
A: “The amendments, yes.”
Q.  “I’m not talking about amendments now.  I’m talking about the standards. Okay?”
A.  “Yes.”
Q.  “The standards incorporate amendments; correct?”
A.  “Well, the standards are amended.  They’re—basically all the individual standards that make up the code are independently reviewed and provided in public review.”
Q.  “No.  The amendments are provided—as I understand your affidavit, Sir, it’s the amendments that are provided.”
A.  “Yes.  But and each standard has its amendments, and those are provided in a public review.”
Q.  “The amendments are provided; correct?”
A.  “Well, the standard and its amendments, yes.”
Q.  “Okay.  My understanding is that it’s just the amendment that is provided.”
A.  “Yes.”

Yes?  Is it the standard and the amendments, or just the amendments?  CSA says “yes.” 

We got the same run around on matters of finance.  Quoting from Zimmerman’s own affidavit [para.14];

“Revenue that CSA receives from sales of our Code helps fund our work on the thousands of other voluntary health and safety standards that we produce and maintain.  Standards […] do not themselves generate significant revenue […] Standards are costly to produce.”

These are definitive statements he’s making.  They’re financial.  Setting aside for a moment that they’ve elsewhere testified to spending no money at all developing standards, Zimmerman is arguing that CSA has spent buckets of money developing standards.

On what basis does Zimmerman make such conclusive statements about CSA finances?

“As a staff member,” he says, “I’m often provided information about our sales activity.”

Q.  “Okay.  And the sales activity would be the sales from the code?”
A.  “It would be from all sources…”
Q.  “ Okay.  So, then, you would have knowledge of all the sales of CSA?”
A.  “Yes.  But I’m not too sure of the level of granularity you are looking for in that question.”
Q.  “Okay.  Would you agree that the revenue of CSA is principally from testing, inspection, certification, and registration?”
A.  “Umm…  Which financial statements are you referring to?”
Q.  “No.  I’m just asking you, Sir:  Based on your knowledge of what you just told me, would you agree with the statement I’ve just made?”
MR. SARTORIO (CSA lawyer):  “Can you repeat it, please?”
Q.  “Yes, that the revenue is principally from testing, inspection, certification, registration.”
A.  “My only concern is, as an employee, I’m not sure if I’m permitted to divulge that information.”

One should note that CSA recently began concealing their financial statements.  The CSA Annual Report is now all bumf, pretty pictures of unpretty people, but no actual reporting of financial performance.

Q.  “But, Sir, I asked you about your knowledge of the finances, and you said that you are given information about the sales from various sources from time to time.  Is that correct?”
A: “Yes.”
Q.  “Okay.  So you don’t know anything about the certification revenue, or you do?”
A.  “No, I do not know.”
Q.  “You don’t know anything about the registration revenue, Sir?”
A.  “No.”
Q.  “You don’t know anything about the inspection revenue, Sir?”
A.  “No.”
Q.  “You don’t know anything about the testing revenue, Sir?”
A.  “No.”
Q.  “Okay.  What you know about is the standards revenue.  Is that correct?”
A: “Correct.”

Then we went off the record for a few minutes.  The CSA lawyer was trying to avoid disclosing financial information.  That’s odd, given that it’s all supposed to be public anyway, and it’s annoying, given that our side has to disclose our financials to CSA.  Well, after a time they came up with an answer that seemed to them at the time to be sufficiently meaningless.

Q.  “So you were going to tell me about the division of sales from standards and, in particular, from the sales of the books and from the amount that people give to you to create the standards.”
A.  “Yes.  It’s roughly a 50/50 split.”

Well, that’s not meaningless.  They’ve already testified in another of their duplicate litigations against us that CSA revenue from Code sales is about $12MM (2018) per Code cycle.  A 50/50 split between sales of books and sales of influence works out to $24MM per Code cycle. 

There.  For all CSA’s efforts to make things muddy, we now know that CSA generates $24MM per Code cycle, being about $8MM per year, from its illegal monopoly on electrical law.  And that, folks is just one law that CSA owns.  Thanks to the Federal Court, the CSA owns 2,000 laws.  No wonder CSA’s CEO called the outfit a “money-machine.”

Finally, we came to the CSA practice of posting only the changed lines of legislative text, as their “compliance” with public review of the whole legislation.

Readers may recall this CSA claim, from the same injunctive filing;

“The Code is a compilation of numerous standards dealing with various aspects of electrical safety.  For convenience, these individual standards have been organized by topic and compiled into a single comprehensive publication (the Code).  Each new edition of the Code that is released by CSA is a compilation of those standards, many of which are amended in the course of the code cycle.”

At the time, we invited readers to ponder why CSA said this.  We’d compelled them into Court with evidence of noncompliance with public review laws.  The laws require full public review of each draft standard.  The CSA however, is only posting small excerpts of the Code.  But, if each paragraph of the Code were it’s own stand-alone standard, then they’d be in full compliance.  So now the Code isn’t a standard passed into law; it’s a collection of “individual standards” all “compiled” into a single publication.

This is what Zimmerman was defending at Discovery.  Well, watch this…

Q.  “And you quote the part [of the SCC regulation] that says: ‘The notice shall indicate how to obtain a copy of the draft standards.’ Do you see that, Sir?”
A.  “Yes.”
[…]
Q.  “So you can identify this as the preface to the 2015 code, Sir?”
A.  “Yes.”
Q.  “And if you can read the notes, please, at page 91, notes 1, 2, and 3.  Just read them to yourself.”

These are the definition paragraphs in the opening pages of the Code, as published by CSA.

Q.  “You read them?  Okay. So do those notes accurately describe the code?”
A.  “Yes.”
Q.  “Okay.  And the word ‘Standard’ at paragraph 1, that Standard refers to the code overall?”

Got him!  The CSA’s on record, in it’s own publication, the one Zimmerman was confronted with, defining the Code as a “Standard,” singular and capitalized as a unique single document.  Zimmerman was flustered, flat-footed.  He started speaking quickly.  So, did the word “Standard” describe the Code?

A.  “ No.  The intent – when we look at the code, if you look at the preface, the first—I’m sorry, not the preface, but the Section 0 of the code—where do I find that?”
Q.  “Okay.”
A.  “So the object of the code is to establish safety standards, so the code is a collection of standards.”
Q.  “Okay.  But the word – if I go back to note 1, which you said was accurate…”
A.  “Yes.  Um-hmm.”
Q.  “…it says ‘application of this Standard’.  The reference to the capital ‘S’ standard is the code itself; is that what the reference is to?”
A.  “It may be referring to it as a code in this context, but that’s boilerplate language used in everything we publish, so…”
Q.  “Okay.  So the word ‘Standard’ with a capital ‘S’ is used boilerplate in everything you publish?”
A.  “Yes.”
Q.  “Thank you.  And you would agree with me that the SCC guideline requires you to publish the Standard; correct?  [Zimmerman grimaces, pauses]  Well, it’s paragraph 55 of your affidavit, Sir.”
A.  “Yes.”

And there they were.  Cornered by their own contradictions.

Well folks, this discovery session was used in the Dec 2017 injunctive Hearing.  You may recall how that Hearing went, how the Court Ruled that CSA was in breach of law, and how CSA ignored the Ruling as though it hadn’t happened, and how the SCC decided to change the law CSA’d broken, and how they invited CSA to redraft that law to their liking. 

There are moments of vindication, even in Court.  It was in an Ottawa Court room, just one month after the Zimmerman discovery, that we presented at the Hearing.  At one point the Judge responded to the CSA lawyer’s claim that his client owned the law with the statement, almost theatrically delivered, as if practiced, that “No-one…” he said, pausing for effect, “…in their right mind… would ever conclude that your client owns the law.”

Exactly one year later, Justice Gleason Ruled that laws are, indeed, privately owned.  Is Gleason in her right mind?