When Lawyers and Legal Experts Promote Bad Habits: The Misuse of the Word ‘Bill’ for Marketing Purposes
Something that has been troubling me lately is the marketing use by law firms, publishing companies, government, HR and health and safety professionals, journalists, the media and bloggers of the word “Bill” out of context, especially in relation to employment law. In many papers, guides, articles, article titles, keywords, hash tags and so forth, we see such things as Bill 168, Bill C-45 when those Bills have been enacted and are now law.
To illustrate, these excerpts are from a recent article written by a lawyer for an occupational health and safety magazine more than two years after the violence and harassment provisions under the Ontario Occupational Health and Safety Act were enacted and came into force:
Ontario’s new workplace violence law, commonly known as Bill 168, amends the Occupational Health and Safety Act and reflects the continued blurring of the line between the workplace and life outside it. Just as BlackBerrys have brought the workplace into the family room, so has the latest evolution of workplace mores brought the family room into the workplace.
Under Bill 168, the right to privacy takes second place to the right to safety if the threat of violence is real. Van Allen says it is possible to distinguish between the spurious and the legitimate threat. Once a legitimate threat has been identified, there is a range of management solutions at an employer’s disposal. It’s not an exact science, but it’s pretty good, and it’s a skill set that employers can learn. (Emphasis added.)
As lawyers, we know a Bill is a proposed piece of legislation tabled in provincial legislatures or at the federal level at the House of Commons and the Senate for an official reading, debate and vote of support. When the Bill passes third reading and receives royal assent, it is law and becomes an Act (also referred to as statute).
Taking the workplace violence and harassment provisions of the OHSA as an example, when Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 received royal assent on December 15, 2009, the Bill became a law. The Bill stated that the Act would come into force six months after the day it received royal assent. Thus, the new Act came into force on June 15, 2010.
Hence on December 15, 2009, Bill 168 became law and is known as An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, Chapter 23 of the Statutes of Ontario, 2009. In short form, the Act is known as the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009.
In addition, the provisions of Chapter 23 of the Statutes of Ontario, 2009, have been incorporated in the Ontario Occupational Health and Safety Act under Part III.0.1 (Violence and Harassment), sections 32.0.1 to 32.07; Subsection 1 (1) of the Act includes definitions of workplace violence and workplace harassment. Thus, chapter 23 forms an integral part of the OHSA.
However, lawyers, the Ministry of Labour, which governs the OHSA, and others, insist on still referring to it as Bill 168.
As further illustration, this is the lead from an article written by a lawyer published on an online legal resource:
Union organization wants better enforcement of criminal safety offences under Bill C-45, releases guide for police
On June 12, 2003, the Minister of Justice and Attorney General of Canada, introduced Bill C-45, Amendments To The Criminal Code Affecting The Criminal Liability Of Organizations, that imposes criminal liability on corporations and organizations that fail to take reasonable measures to protect employee and public safety. The Bill received Royal Assent on November 7, 2003 and was enacted as Statutes of Canada: 2003, c. 21 and came into force on March 31, 2004.
In 2012, every time an article or a reference manual or guide or a case on the health and safety criminal liability of an organization is referred to in the media or from a lawyer or publishing company, we still refer to Bill C-45.
As with Bill 168, once the provisions found in Bill C-45 were enacted, they were incorporated in the Criminal Code under Section 217.1 and became an integral part of the Code.
Thus, we frequently refer to Bill such-and-such years after the Bill has been passed and has become an Act. In the last decade, people tend not to distinguish between a Bill, which has not become law, and an Act, which has.
So why do we do it?
What I have noticed is a lot of publishing companies, lawyers and media use Bill such-and-such (i.e., Bill 168 and Bill C-45) to attract readers to their written piece, or to market their piece or their organization or product, and attract traffic to their website or blog.
This is due to the fact that they have used the name of the Bill as an incentive, a promotional/marketing piece, since it was introduced in legislature. Thus, lay readers—those who need to know or comply with the content of the Bill—are so familiar with the Bill name that they will instantly click on it to get the information.
Is that right?
I have come to believe that we may be doing a disservice to readers, those with no legal background. When you hear a reference to Bill such-and-such, we may be telling the reader:
- To assume the Bill has not already become an Act
- To believe that the name of the Act is Bill such-and-such
- To believe that the Bill is more important than the Act it is amending
- To be confused on where the provisions they need to comply with are located
Don’t get me wrong; I have done it myself. But I have realized it is not right as a professional to perpetuate such inaccuracies. It is possible that authors use Bill names after they have become law because they believe it is less confusing for the reader to hear about the familiar and specific name (e.g., Bill 168) than to have to learn about a more general Act (e.g., Part III.0.1 — “Violence and Harassment” of the OHSA). But this doesn’t excuse the inaccuracy and it also patronizes readers, suggesting that they are incapable of learning about the legal system, or don’t care to.
Marketing should not drive the quality or accuracy of the content, and people who spread news in the interest of public awareness should strive for accuracy. That includes government departments, public and private organizations, lawyers, journalists, bloggers and others.
I have some sympathy for those who continue to use ‘Bill X’ after the bill has been enacted and the provisions are in force. It is a handy reference to particular provisions in what may be a large statute, particularly if the provisions were controversial or otherwise drawn to public or professional attention as they were being passed.
So referring to Ontario’s Bill 168 is a way of pointing to the 2010 amendments, which had their particular purposes and policy.
The Bill X reference is often also more economical than referring to the whole title of the statute. Quebec still sometimes refers to Bill 101 rather than to the Charter of the French Language.
One just has to be careful not to mislead by such references. First, do listeners/readers know the legal status – was it in fact passed, is it in force? How seriously do we have to take it? Second, bill numbers are not taken out of circulation like the numbers of hockey stars’ sweaters. There were and will again be other bills with the same number. Are we all thinking of the same piece of legislation?
Good points John!
Yes, you are absolutely correct. I just had to explain this problem to a law clerk (law student between second and third years of law school). Ultimately, this also creates confusion among practicing lawyers who don’t understand the legislative process. (Yes, such lawyers do exist.)
Certaintly, professionals should NOT refer to a statute by the bill number, except in articles for lay readers and even then in explantory manner, as in “sometimes known as HB 126.”
Right now, there is still debate in California about Proposition 8, defining marriage as between a man and a woman. Well, it’s not a proposition anymore. It’s part of the California constitution that has been declared unconstitutional.
In the 1990s, California passed a proposition to prohibit payment of benefits to noncitizens. This is still being referred to as Propositin 187.
Legislative Counsel select Short Titles based on their knowledge of the existing corpus of law – they avoid duplication and ambiguity. Every session has a Bill 13. It is a recipe for potential confusion. And try looking up Bill 101 in Québec legislative materials. Without the year of enactment, you haven’t a hope.