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Law via the Internet 2020

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Cheryl Stephens
Cheryl Stephens

The document discusses the importance of using plain language in legal writing to ensure proper notice and understanding. It notes that notice requires both gaining attention and comprehension of the legal effects and consequences. The science of cognitive neuroscience and linguistics shows that true understanding requires using familiar words and expected information presented clearly without jargon, surprises or ambiguity. Recent court cases have found that merely making a notice noticeable is not sufficient to demonstrate legal notice and comprehension, especially if the notice contains complex language or is visually confusing. The duty to communicate clearly means using a quality standard of comprehensibility so that people can understand how to exercise their legal rights.

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Is there notice without understanding: the importance of plain language in legal writing. CHERYL STEPHENS SEPTEMBER 22, 2020
What is it about notice? Notice requires gaining attention from: legibility prominence Understanding of effect and consequences =comprehension
Lord Denning in the 1956 English case Spurling v Bradshaw: some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient
Notice must capture attention Prominence: stands out from the wall of text Legibility: legible, decipherable typography Readable: capable of being read with ease
What amounts to good notice? The Supreme Court of Canada says to be informed means to: know your rights affecting legal processes know which rights apply to what is happening understand those rights be able to make informed choices be able to use those rights to take action in what we each consider our own best interests Standard, reasonable effort should consider: Physical, medical, mental disabilities, effect on cognition, memory, reading
What is the right to understand? The right to understand is found by international law: case law statutes international agreements and covenants The United Nations Convention on the Rights of Persons with Disabilities: When an institution is required to provide information, it needs to be understandable. The convention includes plain language as one of the "modes, means and formats of communication.
In written information, accessibility means clear and simple.
Quality standard to meet
Right to information Right to understand Duty to communicate Quality standard A right to access information means a right to access quality information. Information quality includes: accuracy, completeness, currency, and comprehensibility. Comprehensibility: material is only informative to a person if they can comprehend it.
The right to information = right to understand = duty to communicate clearly and simply Legally informed means reasonable efforts have been made to ensure a person has understood the information given to them. Only a person who is truly informed can be expected to properly exercise a right. Tell the person of their rights in a way that the person could understand. The person must actually understand and appreciate the substance of the right, and the extent of the jeopardy. They must understand consequences of waiving the right. Notice must be understood
Notices: fairness, equity, conscionable Supreme Court of Canada supports contractual fairness protects against unconscionability applies equity to consumer transactions
Science is our friend
Law via the Internet 2020
Law via the Internet 2020
20 years research in cognitive neuroscience and linguistics shows how complicated understanding is
Comprehension means understanding effect and consequences Science confirms requirements for understanding: familiar words default English sentence structure intuitive, ordinary, expected, predictable information So, No jargon No surprises Not ambiguous or subject to interpretation Attention drawn to onerous terms requiring special, focused attention
Accessible, understandable, readable
What does not work
=
Website Terms & Conditions As accessible as a brick wall
Cacophony: Noticeable but not effective notice Interferes with process of attending to, focusing on, reading, and comprehending
Noticeable is not sufficient legal notice to infer comprehension or appreciation of significance. Visual cacophony
The Big White example: McQuary v. Big White Ski Resort Limited. 1997 The 1997 court said the drafting, design, and colour of the tickets and signs showed the resort had alerted the skier who had a reasonable opportunity to read the waiver clause. In 2019, a BC Court again endorsed the decision in Big White on the basis that the notice was noticeable. The language has not been challenged. The waiver is prominent but effectively invisible. No expert witness was called. Counsel said, It's as ugly as one can imagine, however the whole purpose of the yellow, the black and the red is again to emphasize to a skier read this". Nobody reads ugly; they look away.
Legal sufficiency of notice is a practical question. Insufficiency can be inferred from the circumstances
The sign at the ticket booth was difficult to read it is one long paragraph with many commas and semi-colons There was no emphasis given to the own- negligence exclusion which was buried in small print among many commas and semi-colons. It is unrealistic to believe that a person approaching the ticket booth would stop in of the window to read the sign. a rental transaction was typically concluded in a hurried, informal manner The exclusion provision on the back of contract was in small type and so faint that it was not legible in the customers copy The exclusion clause was inconsistent with the over-all purpose of transaction Examples of court assessments of circumstances In Clendenning Battiston
Something more should be done by the party submitting the contract for signature than merely handing it over to be signed In modern commercial practice, many standard form printed documents are signed without being read or understood in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. Dubin in Clendenning is quoted in MacQuarie Equipment Finance Ltd.
We dont expect a signing party will take time to read the agreement. The purport of particular provisions of the agreement will not be understood by the signing party. The signature does not dispense with the notice issue, but the opportunities for imposing harsh and oppressive terms on an unsuspecting party are as present with signed documents as they with unsigned documents. It is not surprising that the recent jurisprudence indicates that notice requirements are migrating into the context of signed agreements. Quote from Battiston Edited for brevity Ontario Court of Appeal
Recent or relevant cases and commentary Take a screenshot or photo In Machtinger v. HOJ Industries Ltd. 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, para. 19 Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII) MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139 Tilden Rent-A-Car Co. v. Clendenning (1976), 1978 (CanLII) Professor John D. McCamus in The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 1993-4 R. v. Ramsoondar, 2001
Law via the Internet 2020

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Law via the Internet 2020

  • 1. Is there notice without understanding: the importance of plain language in legal writing. CHERYL STEPHENS SEPTEMBER 22, 2020
  • 2. What is it about notice? Notice requires gaining attention from: legibility prominence Understanding of effect and consequences =comprehension
  • 3. Lord Denning in the 1956 English case Spurling v Bradshaw: some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient
  • 4. Notice must capture attention Prominence: stands out from the wall of text Legibility: legible, decipherable typography Readable: capable of being read with ease
  • 5. What amounts to good notice? The Supreme Court of Canada says to be informed means to: know your rights affecting legal processes know which rights apply to what is happening understand those rights be able to make informed choices be able to use those rights to take action in what we each consider our own best interests Standard, reasonable effort should consider: Physical, medical, mental disabilities, effect on cognition, memory, reading
  • 6. What is the right to understand? The right to understand is found by international law: case law statutes international agreements and covenants The United Nations Convention on the Rights of Persons with Disabilities: When an institution is required to provide information, it needs to be understandable. The convention includes plain language as one of the "modes, means and formats of communication.
  • 7. In written information, accessibility means clear and simple.
  • 9. Right to information Right to understand Duty to communicate Quality standard A right to access information means a right to access quality information. Information quality includes: accuracy, completeness, currency, and comprehensibility. Comprehensibility: material is only informative to a person if they can comprehend it.
  • 10. The right to information = right to understand = duty to communicate clearly and simply Legally informed means reasonable efforts have been made to ensure a person has understood the information given to them. Only a person who is truly informed can be expected to properly exercise a right. Tell the person of their rights in a way that the person could understand. The person must actually understand and appreciate the substance of the right, and the extent of the jeopardy. They must understand consequences of waiving the right. Notice must be understood
  • 11. Notices: fairness, equity, conscionable Supreme Court of Canada supports contractual fairness protects against unconscionability applies equity to consumer transactions
  • 12. Science is our friend
  • 15. 20 years research in cognitive neuroscience and linguistics shows how complicated understanding is
  • 16. Comprehension means understanding effect and consequences Science confirms requirements for understanding: familiar words default English sentence structure intuitive, ordinary, expected, predictable information So, No jargon No surprises Not ambiguous or subject to interpretation Attention drawn to onerous terms requiring special, focused attention
  • 19. =
  • 21. Cacophony: Noticeable but not effective notice Interferes with process of attending to, focusing on, reading, and comprehending
  • 22. Noticeable is not sufficient legal notice to infer comprehension or appreciation of significance. Visual cacophony
  • 23. The Big White example: McQuary v. Big White Ski Resort Limited. 1997 The 1997 court said the drafting, design, and colour of the tickets and signs showed the resort had alerted the skier who had a reasonable opportunity to read the waiver clause. In 2019, a BC Court again endorsed the decision in Big White on the basis that the notice was noticeable. The language has not been challenged. The waiver is prominent but effectively invisible. No expert witness was called. Counsel said, It's as ugly as one can imagine, however the whole purpose of the yellow, the black and the red is again to emphasize to a skier read this". Nobody reads ugly; they look away.
  • 24. Legal sufficiency of notice is a practical question. Insufficiency can be inferred from the circumstances
  • 25. The sign at the ticket booth was difficult to read it is one long paragraph with many commas and semi-colons There was no emphasis given to the own- negligence exclusion which was buried in small print among many commas and semi-colons. It is unrealistic to believe that a person approaching the ticket booth would stop in of the window to read the sign. a rental transaction was typically concluded in a hurried, informal manner The exclusion provision on the back of contract was in small type and so faint that it was not legible in the customers copy The exclusion clause was inconsistent with the over-all purpose of transaction Examples of court assessments of circumstances In Clendenning Battiston
  • 26. Something more should be done by the party submitting the contract for signature than merely handing it over to be signed In modern commercial practice, many standard form printed documents are signed without being read or understood in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. Dubin in Clendenning is quoted in MacQuarie Equipment Finance Ltd.
  • 27. We dont expect a signing party will take time to read the agreement. The purport of particular provisions of the agreement will not be understood by the signing party. The signature does not dispense with the notice issue, but the opportunities for imposing harsh and oppressive terms on an unsuspecting party are as present with signed documents as they with unsigned documents. It is not surprising that the recent jurisprudence indicates that notice requirements are migrating into the context of signed agreements. Quote from Battiston Edited for brevity Ontario Court of Appeal
  • 28. Recent or relevant cases and commentary Take a screenshot or photo In Machtinger v. HOJ Industries Ltd. 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, para. 19 Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII) MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139 Tilden Rent-A-Car Co. v. Clendenning (1976), 1978 (CanLII) Professor John D. McCamus in The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 1993-4 R. v. Ramsoondar, 2001

Editor's Notes

  • #5: When there is a duty to notify, there is also an obligation to use clear communication.
  • #8: Applies to parliament, federal government of Canada, federally-regulated private sector
  • #11: Enforcing the Charter of Rights and Freedoms,
  • #12: The Supreme Court of Canada says, to be informed means to: know rights affecting legal processes know which rights apply to what is happening understand them be able to make informed choices be able to use them to take action in what we each consider our own best interests Standard should consider: Physical, medical, mental disabilities , effect on cognition, memory, reading
  • #21: Language, density, and length limit readability
  • #22: Noticeable or attention getting are not the same as attending to, focusing on, reading, and understanding.
  • #23: Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 http://www.courts.gov.bc.ca/jdb-txt/sc/17/17/2017BCSC1702.htm As a condition of use of the ski area and other facilities, the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, skating, cycling, hiking and all other recreational activities; the use of ski lifts; collision or impact with natural or man-made objects or with skiers, snowboarders or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of Big White Ski Resort Ltd. and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the Ski Area Operator). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto.
  • #28: Clendenning., Dubin, quoted in MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139
  • #29: Quoted in Battiston even with a signed agreement, inadequate notice of a particularly unfair term may render that term unenforceable. Tilden Rent-A-Car Co. v. Clendenning was recently considered in MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139, the Ontario Court of Appeal I find that the termination provisions found in the Stock Award Agreements were harsh and oppressive as they precluded Battistons right to have unvested stock awards vest if he had been terminated without cause. I also accept Battistons evidence that he was unaware of these termination provisions and that these provisions were not brought to his attention by Microsoft. Microsofts email communication that accompanied the notice of the stock award each year does not amount to reasonable measures to draw the termination provisions to Battistons attention. Accordingly, the termination provisions in the Stock Award Agreements cannot be enforced against Battiston. Battiston is entitled to damages in lieu of the 1,057 shares awarded that remain unvested. Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII)
  • #32: Ontario Occupiers Liability Act Reasonable steps to inform (3) Where an occupier is free to restrict, modify or exclude the occupiers duty of care or the occupiers liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed. R.S.O. 1990, c.O.2, s.5. General, according to Gowling website Whether exclusions or limitations of liability will be effective will depend on whether the clauses in question can be interpreted clearly and whether they can be deemed to be fair and reasonable. Under the Consumer Rights Act 2015 (CRA) a term in a consumer contract which limits or excludes liability will not be binding unless it can be said to be fair. Likewise under the Unfair Contract Terms Act 1977 (UCTA) liability can only be limited or excluded in business to business contracts if the clause is fair and reasonable. Ensure that clear and unambiguous wording is used - and if negligence is to be excluded, make sure the clause expressly says so; If the clause is ambiguous and is open to interpretation, any doubt as to its meaning may be decided against the party seeking to rely on it; Do not try to hide or bury exclusion or limitation clauses in a contract or standard terms - to give them the best chance of working they should be brought to the other party's attention; You cannot exclude liability in negligence for death and personal injury - if you try to, that part of the clause will fail;