⚖️ Rest and relaxation

Did the SCC take a break from deciding cases? Plus, what to expect in 2024 and all the news you might have missed over the holidays

Welcome back to all the returning Hearsay subscribers. And welcome to the 60 new subscribers who joined during Hearsay’s holiday hiatus. Hopefully everyone had an opportunity to unwind over the past few weeks.

One thing I did over the break was get acquainted with the Supreme Court of Canada Database maintained by Paul-Erik Veel and his team at Lenczner Slaght. If the intersection of spreadsheets and Canadian law gets you jazzed, consider checking the database out — it sure helped with today’s newsletter.

Today’s issue is a bit different from my usual content. And — even with the help of a great database — it took a bit longer to put together. If it’s up your alley, consider sharing it with a friend or colleague. I’d appreciate it.

Here’s to an excellent 2024!

— Dylan Gibbs

TODAY'S DOCKET

6 min read

  • Is the SCC still in the business of making law?

  • What we know so far about the SCC’s 2024 calendar

  • News you might have missed while sipping eggnog, including a law dean’s misconduct, the Federal Court’s AI rules, and NYT’s lawsuit against OpenAI

SCC

Did the Supreme Court take a gap year?

Chart showing number of Supreme Court of Canada Appeal Judgments released 2013-2023

Appeal judgments by year

The Supreme Court of Canada has steadily decided fewer cases since the early ‘90s. But the Court really outdid itself in 2023. Last year, the Court decided only 34 cases — seven of which were oral judgments delivered from the bench.

That in mind, it might not have been the best year for a social media post about doing everything other than deciding cases.

Screenshot of holiday tweet by SCC talking about doing judicial exchanges and meeting students. Reply says "did you do any actual work?"
Screenshot of tweet reposting SCC tweet. Reposter point out that SCC decided only 27 cases in 2023

Snarky comments aside, what caused such a significant drop in the number of decided appeals?

Fewer cases: One theory is that the Supreme Court simply heard fewer cases in 2023. But the numbers don’t bear that out. Hearings were fairly constant last year, despite decisions taking a nosedive.

Chart showing SCC decisions and hearings over time. Steep drop in decisions in 2023 while hearings remained relatively constant

Reserve backlog: It looks like the Court just … didn’t get around to releasing its decisions. Entering 2023, the Court had only 16 outstanding decisions on reserve (a record low over the past 10 years). During the year, the Court built that number up to 28 — a near-record high.

Chart showing SCC hearings, decisions, and judgments on reserve at year-end over the past 10 years

The most likely explanation for the reserve pileup is Russell Brown’s departure from the Court. Some effects of Brown leaving have been obvious — R. v. Bykovets went through a re-hearing last month, almost certainly because the Court was tied without Brown’s participation.

It’s safe to assume there were other less obvious effects — like Brown’s departure disrupting the Court’s typical writing workflow. After an appeal hearing, the Chief Justice assigns someone to write the majority opinion. Brown likely held some of those writing assignments just before he went on leave last February, which would have forced the Chief Justice to reassign the cases following Brown’s retirement in June.

Could there be other explanations for the backlog spike and corresponding drop in decisions? Sure. But 2023 is such a significant outlier that the connection to Brown’s departure is difficult to ignore.

Big picture: Hopefully 2023 doesn’t represent a new normal of Canada’s top court producing minimal work product. But if Justice Brown’s departure was the primary cause of the drop in decisions, there’s no real cause for concern. 2023 should be a blip — the Court just needs to power through its backlog and get back to business as usual.

What to expect from the Supreme Court in 2024

Apart from working through that sizeable backlog, what’s on the Court’s plate this year? Not much, actually. And that’s especially true if you’re interested in private law decisions.

The Court is scheduled to hear only seven appeals in January and February — all criminal cases. As far as I can tell, this two-month stretch of purely criminal appeals is unprecedented. Plus, they’re mostly appeals as of right, which the Court tends to resolve from the bench.

All is not lost though. The Court granted a significant number of leave applications last year, including five just before the holiday break. Those cases all need to be heard eventually — and the Court’s website currently only shows hearings scheduled through the end of March.

So stay tuned. And, in the meantime, at least the Court should have plenty of time to pump out those reserve decisions.

ICYMI ROUNDUP

Noteworthy stories from the past few weeks

🚪 Mid-sized Toronto firm Minden Gross is winding down operations — the first major Canadian law firm to fold since Heenan Blaikie shut its doors in 2014. After several partners left the firm recently, including managing partner Brian Temins in October, the firm couldn’t weather the resulting cash squeeze and loss of confidence. Here’s the Globe and Mail’s (paywalled) report.

🤖 The Federal Court released guidelines and a Notice to the Profession, both dealing with artificial intelligence use. For now, the Court is adopting a firm “no generative AI” rule for its own work product: “The Court will not use AI, and more specifically automated decision-making tools, in making its judgments and orders, without first engaging in public consultation.” For litigants, the Court says that any filed document “contain[ing] content created or generated by AI” needs to include a declaration in the first paragraph of the document disclosing the use of AI.

💸 The Law Society of Manitoba found that the University of Manitoba’s former law dean committed misconduct, including by spending over $500,000 on unauthorized professional development expenses. The Law Society will likely be seeking disbarment at a future sanction hearing. The University is also asking Winnipeg police to consider laying criminal charges.

🧐 The Law Society of British Columbia suspended the lawyer who used pseudo-law arguments in a personal lawsuit. That was ... predictable:

Screenshot of Hearsay Daily Newsletter Dec 1, 2023

Beyond the border:

🇺🇳 The UN’s International Court of Justice is currently hearing South Africa’s case against Israel, which alleges Israel is committing genocide in Gaza. Yesterday, former Supreme Court justice Rosalie Abella shared her thoughts on the genocide allegations in a polarizing op-ed.

🧑‍⚖️ Israel’s Supreme Court held that it’s unconstitutional for the government to eliminate judicial review of government action. The Court struck down a controversial law enacted by Prime Minister Benjamin Netanyahu’s government, which had sparked outrage and protests in Israel just before the Oct. 7 attack by Hamas. The Israeli Supreme Court decision cites both Canadian law (Vavilov) and scholarship (Paul Daly).

🤖 The New York Times filed a suit against OpenAI last month for copyright infringement. In what looks to be one of the stronger copyright lawsuits against generative AI, NYT alleges OpenAI’s models reproduce copyrighted NYT articles verbatim. OpenAI published a blog post this week responding to the lawsuit, in which the company says “regurgitation” is a bug brought on by intentional user manipulation:

It seems [The New York Times] intentionally manipulated prompts, often including lengthy excerpts of articles, in order to get our model to regurgitate. Even when using such prompts, our models don’t typically behave the way The New York Times insinuates, which suggests they either instructed the model to regurgitate or cherry-picked their examples from many attempts.

If you’re keen to read more about it, there are some good X threads on the merits of the suit: here and here.

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