Plain language, literacy and decision-writing
And Celebrating International Women's Day tomorrow
Tomorrow (March 8) is International Women’s Day. I hope you take the time to reflect on the important women in your life and in the law. Here is a good list of women important in the struggle for human rights - although I am sure it misses many.
Cases of note
Dismissal of grievance due to non-compliance with disclosure order
In Jack Cewe Construction Ltd. v Heidelberg Materials Canada Limited, 2024 CanLII 137704 (BC LA), the union failed to comply with the arbitrator’s disclosure order. The arbitrator found that there had been “substantial non-compliance” with his order. He also accepted the respondents’ position that “ongoing disclosure requests … have been arduous”. He also noted no evidence that the grievors did not possess or control the documents that were being requested. The arbitrator concluded:
18 I accept the Union’s submission that dismissal is reserved for the clearest cases of non-compliance. Although, many of the Orders relate to remedy there is also an outstanding issue as to the merits of the Union’s claim. The listed items under paragraphs 39 to 41 of the Order address the merits and have either not been specifically addressed or provided in full compliance with the Order. In sum, whether all or part of the work at issue falls under the terms of the Agreement remains a point of contention along with remedy. These circumstances give rise to natural justice concerns as the Respondents are entitled to be in a fair position to prepare a full answer and defence to the entire scope of the Union’s claims.
19 I understand and accept that the Union has a legitimate concern about losing a chance to vindicate its position. Dismissal is a serious outcome. However, I have now undertaken the following incremental steps to address this matter and preserve the integrity of this proceeding: 1) encouraged communication and cooperation; 2) obtained written and oral submissions; 3) formally defined clear disclosure and production requirements in Jack Cewe; and 4) granted two generous extensions following the Grievors’ apparent lack of cooperation. The Grievors have been given ample time to respond and comply. There is no adequate explanation for non-compliance, and I do not see a practical lesser alternative to ensure a fair hearing in the circumstances.
20 Having regard to all the circumstances at hand, I find there has been deliberate disregard for the Order to a point that there has been an abuse of process giving rise to the denial of a fair hearing. Accordingly, the Grievance is dismissed and the hearing dates are cancelled.
Yet another successful mandamus application
In this case (Chirum v. Canada (Public Safety and Emergency Preparedness), 2025 FC 259, the delay in an application for Ministerial Relief from an inadmissibility finding was 5 years. The CBSA made the following arguments:
The applicant continued to provide additional submissions and evidence in January 2023 and December 2023;
The applicant was informed about the very complex nature of the Ministerial Relief process, which requires an in-depth review of a voluminous amount of information and submissions. The applicant was also informed that Ministerial Relief applications are generally processed in accordance with their year of receipt and that the CBSA was currently processing applications received prior to the Applicant’s;
The timeline in processing the application in this case was not unreasonable, especially given the circumstances of the COVID-19 pandemic and the resulting effects on the CBSA’s operations. While the COVID-19 pandemic is not sufficient on its own to justify the entirety of the delay, it is a relevant consideration when determining the reasonableness of the delay;
The Ministerial Relief application was made during the height of the COVID-19 pandemic; and
The Minister, not a delegate, is the final decision-maker on a Ministerial Relief application. The Minister is responsible for exercising leadership within the federal government for public safety national security issues, while overseeing the work of various government departments. The Minister’s varied responsibilities require that a flexible and deferential approach be taken when determining what is a reasonable time to make a final decision on a Ministerial Relief application. Besides, there have been four different Ministers of Public Safety and Emergency Preparedness since 2020, and it takes time for a Minister to become familiarized with their portfolio.
The court did not accept these excuses:
[24] Similarly, I find that the Minister cannot rely on their heavy workload as a justification for inaction to the detriment of those whose lives are impacted by their decisions, or lack thereof.
[25] I also find it unpersuasive to point to the numerous changes in the Minister to justify the delay. It is a privilege to be appointed as the Minister. Anyone who accepts this appointment does so with the full knowledge of the tremendous power and responsibility that comes with it. It is incumbent on the individual appointed to such a powerful position to keep themselves up to speed on all their portfolios without delay.
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[27] The Respondent’s reliance on the COVID-19 pandemic to justify long delays is equally lacking in merit, and has been rejected by the Court in Saravanabavanathan v Canada (Citizenship and Immigration), 2024 FC 564 at paras 36-37. At the hearing, the Respondent asked the Court to take judicial notice of the COVID-19 pandemic and consider it as a factor for justifying the delay. While I can certainly take judicial notice of the pandemic, I need not accept the Respondent’s assertion about its effect on processing time. Even if it may be reasonable to explain some delay due to the COVID-19 pandemic, the Minister in their affidavit evidence has not mentioned this nor given any information about the impact of COVID-19 on their operations.
[28] With regard to the timeline of the Applicant’s application, I note an email from the CBSA dated December 18, 2023 in response to an email from Applicant’s counsel dated December 5, 2023, which stated, “Ministerial relief cases are generally processed in accordance with their year of receipt. Therefore, [the Applicant’s] application, filed in 2020, presently remains in queue to be assigned for processing with other cases received that year.” A similar statement can also be found in the Respondent’s affidavit evidence.
[29] In other words, the fact that the Applicant has filed subsequent submissions does not change his position in the queue, so to speak, nor does it change the timeline by which the Minister will review his application.
Links of interest
Literacy in Canada: What You Need to Know
Decisions are meant to be transparent and intelligible to the parties - which is why it’s important to pay attention to literacy levels of the average party before a tribunal - both in rules of procedure as well as in decisions:
The average literacy scores in Canada (for adults aged 16–65) fall in the level 2 range. While this is above the OECD average, 19 per cent of Canadian adults demonstrated “low” literacy (performing at level 1 or below), 20 per cent demonstrated low numeracy and 22 per cent demonstrated low problem solving. Jointly, 13 per cent were “low” in all three.
Conversely, only 14 per cent of Canadian adults performed at level 4 or above in literacy, 15 per cent in numeracy and only 6 per cent in problem solving. The vast majority of Canadians (67 per cent in literacy, 64 per cent in numeracy and 72 per cent in problem solving) were placed in the level 2 and 3 territories.
Adults at Level 1 are able to […] understand the meaning of short texts, as well as the organization of lists or multiple sections within a single page.
At Level 2, adults are able to access and understand information in longer texts with some distracting information. […] They can understand by paraphrasing or making inferences.
Adults at Level 3 are able to […] identify, interpret or evaluate one or more pieces of information, often employing varying levels of inferencing.
At Level 4, adults can read long and dense texts presented on multiple pages in order to complete tasks that involve access, understanding, evaluation and reflection.
Plain Language Is Not “Dumbing Down” Writing
The goal of writing is to share a message with the audience because you want every reader to understand — that is, after all, why you’re sharing the message. Plain language is the way you do that.
Why would you choose to use language that you know could make it difficult or impossible for some readers to understand your message when doing so might exclude rather than include some of them from comprehension?
Plain language is not “dumbing down” your writing; it’s making your writing understandable to the maximum possible number of readers. Plain language is a tool for accessibility and inclusivity.
'Hopeless' to potentially handy: law firm puts AI to the test
Artificial intelligence (AI) tools have got significantly better at answering legal questions but still can not replicate the competence of even a junior lawyer, new research suggests.
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The test involved posing the type of questions which would require advice from a "competent mid-level lawyer" with two years' experience.
The newer models showed a "significant improvement" on their predecessors, Linklaters said, but still performed below the level of a qualified lawyer.
Even the most advanced tools made mistakes, left out important information and invented citations - albeit less than earlier models.
The tools are "starting to perform at a level where they could assist in legal research" Linklaters said, giving the examples of providing first drafts or checking answers.
However, it said there were "dangers" in using them if lawyers "don't already have a good idea of the answer".
Federal Court sees few notices of use of AI
In late 2023, amid concerns about the use of artificial intelligence (AI), the Federal Court issued a notice telling litigants if they used AI in their legal submissions, they had to declare that to the Court.
It turns out hardly anyone seems to have read it.
In the second episode of the CBA’s podcast Modern Law: Verdicts and Voices, Federal Court Chief Justice Paul Crampton tells host Alison Crawford that out of almost 28,000 legal filings the court received in 2024, “only three or four” declared the use of AI in making them.
“Clearly, either people are not using AI when drafting their legal submissions, or they're not aware, or they're intentionally disregarding our practice direction, which obviously would be a problem.”
Rule of Law Watch
Reminder: this regular feature is all-Canadian content - too much happening in the US to keep track of, and there are better sources than me for US stories. I’ve included my recommendation for US coverage at the end of this section.
Union warns Immigration Department cuts will further delay backlogged court cases
A union representing federal Immigration Department employees is warning planned cuts that would lay off 60 litigation branch analysts could further impact the already strained courts dealing with hundreds of delayed immigration cases in the country's three biggest cities.
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The analysts are responsible for reviewing case files and legal research, as well as briefing government lawyers.
This week I saw Rosanne Cash at the National Arts Centre. She was extremely apologetic on behalf of her country. She also played a cover of Canadian country legend Hank Snow - “I’m Movin’ On”. Try listening to it from the perspective of Canada singing it to the USA:
I've told you, baby, from time to time But you just wouldn't listen or pay me no mind Now I'm movin' on, I'm rollin' on You've broken your vow and it's all over now And I'm movin' on But someday, baby, when you've had to play You're gonna want your mama, but your mama will say Keep movin' on, you stayed away too long I'm through with you, too bad you're blue And I'm movin' on