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.

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.

8. Quality standard to meet

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

17. Accessible, understandable, readable

18. What does not work

19. =

20. Website
Terms &
Conditions
As
accessible as
a brick wall

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
customer’s 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 don’t 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