Enforcing Plain Language
An Ontario private member’s bill, the Cell Phone, Smart Phone and Wireless Technology Transparency Act, 2010, requires among other things that future performance contracts (a term defined in the Consumer Protection Act), “shall be expressed in plain language that is clear and concise.” (s. 3(1))
Are there judicially recognized standards of plain language that would allow this provision to be enforced, and that would allow someone drafting such a contract to know that he or she had met the standards? I know that there are books and articles around about plain language, but does something have force of law?
The bill goes on to list eleven specific things that a supplier of the applicable service has to put in the contract, along with the requirements of the Consumer Protection Act and its regulations – so the demand that the contract be ‘concise’ may be a bit difficult to achieve. Are there judicial standards on concision?
The bill seems influenced by Quebec’s recent changes to its consumer protection legislation, adopted last year as Bill 60, and in force as of June 2010. That bill called the services to which it applied its similar rules ‘Contracts Involving Sequential Performance for Services Provided at a Distance’, perhaps (as the commentary cited here suggests) to avoid infringing on federal legislative competence over telecommunications.
Garbage in, garbage out, John.
Can a contract be clear but not concise (enough)? Or is conciseness like pregnancy?
How many words are too many for conciseness?
Where there’s a short Anglo-Saxon word and a longer Latinate term, does concise mean I have to use sh*t rather than manure?
The clear and concise answer to your questions about “judicially recognized standards” is: “no”.
I’m surpised the legislation doesn’t contain a provision stating that common sense shall be used in determining whether the contract is “clear and concise”. Or maybe it was supposed to but the MPP and his drafter realized they couldn’t come up with a clear and concise definition of common sense.
DC
@quote: “shall be expressed in plain language that is clear and concise.”
The text implies that some plain language is not clear and concise. Probably, the writer means, “shall be expressed in plain language, which is clear and concise.”
Frequently, ‘plain English’ is not sufficiently plain, as I explain in ‘Problems with plain English’ (http://www.techscribe.co.uk/techw/plain-english-problems.htm).
Legislation requiring “plain language” is a bold move, because it risks becoming an illustration of Fodden’s Law of Perversity (which has no general statement, only corollaries, one of which might be, for instance, that “courses on teaching are invariably badly taught”). The drafting of the Bill isn’t awful — but it could use some “plaining up,” perhaps. For instance, it uses negation when, I suspect, positive statements would be preferable:
The legislation requires only that the contracts to which it applies be clear and concise. It doesn’t apply to itself. First snicker: though I will concede the statute is concise. But then, so are Resurfice, Athey, andRon Engineering, for example. Clear, though? There’s a saying that refers to a pig’s eye. It might as well be a flying pink pig.
I suppose the person who drafted the legislation for the MPP had at least a passing acquaintance with the Legislation Act. Still, consider s. 64(1) of that statute: “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” Guess that means something large can still be clear and concise. The goose & gander thing.(second snicker)
There’s an election coming up the the Libs weren’t prepared to make this a gov’t bill? I’m sure that means something to the appropriately cynical.
On the other hand, I suppose I shouldn’t be heard to complain too loudly if the legislation is passed. It’s bound to increase the amount of billable work lawyers in private practice have. That’s a good thing, right? I mean, that’s what the MPP had in mind, even if, it appears, he wasn’t a lawyer before become a politico.
So, on behalf of the practitioners in the legal profession, I offer him a toast: Here’s mud in your eye. (Third snicker).
DC
I am a lawyer. Plain language writing is my practice focus and has been for the last 20 years.
I would submit that future performance contracts under the Cell Phone,Smart Phone and Wireless Technology Transparency Act will be in plain language when a rider on the TTC will be able to read the contract and understand the obligations that flow from it. This can best be assessed by document testing (something the computing industry does daily). A sensible person will also know it when they read it.
Plain language work is being done all around us. Insurance companies are doing it. Banks are doing it. For example, I saw a recent credit card statement that read something like ” if only the minimum payment is made, it will take 22 years to pay off the balance owing at this time”. Clear, isn’t it?
Plain language is a good thing. Embrace it.
Ms. Schmolka
You miss the point. Clear (enough) language is important. The idea of behind the legislation is important. No one has suggested otherwise, What we are discussing is the adequacy of the attempt to put the idea into use. It isn’t.
Of course, context defines the the terms required for clarity and conciseness.
DC
I’ve just done a quick search on CANLII using the terms “clear and concise” and had 664(!) hits. In many of these judicial and administrative reasons the judges have evaluated whether the standard “clear and concise” has been met in testimony, submissions, or some other form of presentation. I reckon one could review these cases and thus discern what it takes to satisfy the standard of clarity and conciseness. Surely this reveals that the courts are familiar with this test.
It’s paradoxical that a bill calling for clear and concise language could itself do with some help in that department.
As regards the standards that one would have to follow to comply with the bill’s requirements, I note that the U.S. Plain Writing Act of 2010, signed by President Obama in October, provides for preparation of guidance on implementing the requirements of the act. To avoid confusion, the private member’s bill would have to provide for similar guidance.
As Mr. Adams notes, the Plain Writing Act of 2010 has just become law here in the U.S. Here, though, the law is directed at the communications the Federal agencies write to citizens; so it’s a requirement of government, not citizens. Nonetheless, it raises concerns about a further “dumbing-down” of the American public and the danger of over-simplification: using plain language sometimes leads to simpler language that can leave out needed details. I’m hopeful, though, that any laws that require clear and concise language will help make all citizens more aware of the importance of words, the windows to truth (and deception). I run the Honest Government blogs (at http://www.ConservativeWords.com), and I’m also encouraging governments everywhere to use editing software to improve their writing.