Minor changes

Good morning. Machine learning isn’t just about hallucinated case citations and negligent chatbots. A rescue crew in BC is using AI to identify the family members of a stranded orca calf. And that’s pretty neat.

— Dylan Gibbs

• Decision length by the numbers

• Federal Court rule changes

• Uber class actions

• And the latest SCC leave to appeal decisions

SCC

A quick follow-up to Monday’s newsletter about the Dickson v. Vuntut Gwitchin First Nation decision. I mentioned that the decision is long. Here’s a chart to put it in perspective:

I also suggested on Monday that Dickson is the longest majority judgment since 2013. When I wrote that, I was thinking of Justice Lebel’s reasons in Quebec v. A. But I later realized Justice Lebel’s reasons didn’t have majority support. And that means you need to go back even further to find a judgment longer than Dickson — to Merck Frosst v. Canada, released in 2012.

As penance for my mistake, here are the 10 longest decisions released since 2005:

P.S. I limited these charts to majority reasons because it was easier to get the data. But I’ll be shedding that limitation soon. Stay tuned for a closer look at decision length and authorship at some point down the road.

HEARSAY ROUNDUP

Canadiana

📢 The Federal Courts are doing a global review of their procedure rules. The responsible committee is inviting feedback if you’d like to chime in.

🧑‍⚖️ Lawyer groups asked to meet with Ontario Attorney General Doug Downey to talk about Doug Ford’s penchant for appointing like-minded, crime-fighting, judges. Downey shot the groups down. But in fairness to him, he was probably busy appointing judges. Five new appointees are joining the Court of Justice as of April 11 (and yes, they all have Crown prosecution experience).

🚖 The class action trial between taxi drivers and Quebec kicked off yesterday. The drivers are suing for $400M plus punitive damages, arguing that Quebec constructively expropriated their taxi permits by letting Uber operate in the province. This class action doesn’t put Uber directly in the crosshairs. (Unlike the one filed by a woman in Manitoba last month, which claims damages on behalf of any passenger ever assaulted, sexually or otherwise, by an Uber driver).

📊 The Nova Scotia Court of Appeal published its annual report. It has an interesting section about Justice Scanlan’s experience judging in Nunavut. Which is fitting, given that Monday was the 25th anniversary of Nunavut’s creation.

SCC

Latest leave to appeal decisions

The Supreme Court granted leave applications last week — although the news was a bit overshadowed by a lengthy judgment released the same day. The Court typically releases leave decisions on Thursdays and appeal judgments on Fridays, but they overlapped last week because of the holiday.

Markowich v. Lundin Mining Corporation deals with the distinction between material changes and material facts — a critical securities law issue.

• Lundin Mining operated an open pit mine in Chile. After learning one of the mine’s walls was unstable, the company evacuated. The wall collapsed in a rockslide a few days later.

• Lundin didn’t tell anyone about the instability, or the rockslide, until almost a month later. The disclosure wiped out more than $1 billion in market cap overnight.

• Shareholders brought a class action alleging Lundin failed to promptly disclose a material change.

The motion judge tossed the suit, saying the shareholders didn’t have any reasonable prospect of proving a material change in Lundin’s business, operations, or capital (as required by the Securities Act). His view was that a change is something that alters the position, course, or direction of a business. And neither the instability nor the slide fit the bill.

But the Court of Appeal said the trial judge’s approach was too narrow:

Big picture:

Quebec v. Opsis Airport Services; Quebec v. Quebec Maritime Services

The other two cases deal with interjurisdictional immunity.

In Quebec, anyone doing private security work needs a license. And that requirement led to charges for two unlicensed firms. But the firms argued they are immune from Quebec’s Private Security Act because they work on federal undertakings. One company does airport security, and the other does dock security for transatlantic ships.

• At the Court of Appeal, Justice Ruel would have acquitted the security firms based on interjurisdictional immunity. He said the Act gives broad discretion that would effectively let a provincial agency shut down federal undertakings.

• But he was outnumbered by his colleagues. The majority said discretion alone is not a problem — it’s speculative to think the provincial agency would use its power improperly.

WHAT NOT TO DO AS A LAWYER

→ Don’t note someone in default after saying you won’t. But, if you do, don’t follow it up by calling opposing counsel "a parasite and a liar".

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