Minor changes

The SCC's latest leave to appeal decisions, decision lengths, rule changes, and more

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


5 min read

  • Decision length by the numbers

  • Federal Court rule changes

  • Uber class actions

  • And the latest SCC leave to appeal decisions


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:

Histogram showing length of SCC majority reasons released from 2005 to April 1, 2024. The average is clustered around 65 paragraphs. The Dickson v VGFN decision appears on the far right side of the histogram, at 231 paragraphs.

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:

Bar chart showing longest SCC majority reasons released from 2005 to April 1, 2024: 2009 SCC 9, 2013 SCC 11, 2019 SCC 33, 2023 SCC 23, 2012 SCC 8, 2021 SCC 11, 2011 SCC 10, 2024 SCC 10, 2012 SCC 3, and 2007 SCC 15

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.



📢 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.


Latest leave to appeal decisions

Rock slide at a mine

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:

[T]he issue is not whether Lundin completely changed directions in its lines of business, stopped operating the mine … or changed its capital structure. From the case law, one of the only restrictions on the meaning of change is that it cannot be external to the company without a resulting change in the business, operations or capital of the company, [and] it cannot simply be an unexplained change in results…

Big picture:

Tweet by Paul-Erik Veel: "this decision is gong to have significant implications for all publicly traded companies, and it will be an important case to watch gong forward."

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.


→ 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".

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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