How striking

I haven’t been publishing this newsletter as much over the summer. That’s partly because courts are slower, partly because I’ve been mapping out plans for the fall, and partly because I’ve been exploring new content — like a podcast.

We’ll be back in full swing next week.

In the meantime, you can check out Hearsay’s podcast debut below. The first episode goes out to everyone interested in judicial clerkships.

Beyond the first episode? Help me steer the Hearsay podcast in the right direction by taking a moment to answer this poll:

— Dylan Gibbs

• Tips for clerkship applications

• Law firms on the public markets

• SCC leave to appeal decisions

• Supervised consumption

• Starting strikes

• Ending strikes

PODCAST RELEASE 📣

“Chiara is the most impressive person I’ve spoken to about SCC clerkships.”

That was me, back in February. One of my law school profs and mentors put me in touch with Chiara Concini, a 2L student interviewing at the Supreme Court.

Chiara blew me away. Even though the Court doesn’t typically hire 2Ls, I figured she had a decent shot. And sure enough—Chiara didn’t just get the gig, she’ll be clerking for Chief Justice Wagner. 

It’s tough to find good information about clerkship applications without calling up a bunch of former clerks. There’s hardly any information online.

So Chiara and I recorded a podcast to capture her experience while it’s fresh.

• Thinking about clerking?

• Know someone who’s applying?

• Curious about the strategies Chiara used in her application?

You can find the episode on YouTube and all major podcast platforms.

LEGAL MARKET

Shareholders expand control over the Canadian IP market

IPH Limited bought Berreskin Parr last week — folding a fourth Canadian intellectual property firm into its publicly traded international network. The deal will see Berreskin Parr merge into Smart & Biggar, just like Ridout & Maybee last year. IPH also owns ROBIC, which operates under a separate banner.

Some people are talking about the impact of another merger on the IP market. I was more surprised that prohibitions against non-lawyers sharing in legal profits haven’t dampened IPH’s acquisition strategy. But I’ve now gleaned that you can avoid those rules if you base your law firm in Quebec.

• Quebec is the only Canadian jurisdiction that allows non-lawyer ownership. Lawyers still need to own the majority of a legal practice, but non-lawyers can own the rest.

• So, with ROBIC operating through a Quebec partnership, and Smart & Biggar operating through a Quebec partnership for work outside Alberta, IPH can own 49.9% of each firm.

And if you ask IPH, their stake is even larger:

LABOUR

Can the government go around squashing strikes?

The strike that halted Canadian railways veered off the tracks this weekend after the federal government decided to intervene. So, trains are back in motion. But we still don’t know whether the government acted lawfully.

What happened: The Canadian Industrial Relations Board set the stage earlier this month by ruling that railways aren’t an essential service. That greenlit a strike by rail workers, which kicked off on Thursday. But with Moody’s pegging the strike’s economic impact at $341 million per day, it didn’t take the government long to step in.

Federal Labour Minister Steve MacKinnon ordered the Board to end the strike and force the parties to arbitration. He used section 107 of the Canada Labour Code, which lets him order the Board to do just about anything:

Familiar territory: Former Labour Minister Seamus O'Regan also used section 107 this year, in response to the threatened Westjet mechanic strike. Even though O’Regan was the one who dealt with air travel — he walked so MacKinnon could fly.

• O’Regan’s Westjet order simply told the Board to send the parties to arbitration. Since it didn’t say anything about keeping workers on the job, the Board said workers were allowed to strike while the arbitration ran its course.

• This time around, MacKinnon’s direction to the Board didn’t just require arbitration — it ordered an end to the rail workers’ strike.

Is that legal? TBD. The Union asked the Board not to follow the Minister’s order, arguing that it violates the Charter. But since section 107 literally says the Minister can tell the board what to do, the Board said its hands are tied.

The union isn’t giving up the fight. But it’ll need to challenge the Minister’s decision in the Federal Court instead of before the Board.

Big picture: If the case moves forward, the Court will likely need to grapple with whether binding arbitration can replace the right to strike. The Ontario Court of Appeal considered a similar issue earlier this year, striking down Ontario’s prohibition on Toronto transit strikes.

HEARSAY ROUNDUP

Canadiana

🪧 McGill law professors are striking. They already went on strike in the spring. But now it’s the first week of classes and the strike carries much more weight. The profs want higher salaries and improved governance. Oh, and they want the university to recognize their union’s status. Quebec’s labour tribunal certified the bargaining unit in 2022, but McGill wants that decision overturned.

💉 Ontario is gutting its roster of supervised consumption sites. Sites within 200 metres of a school or childcare centre must close by the end of March — a rule change that will shutter 10 of the province’s 17 supervised consumption sites.

• The policy will likely prompt a Charter challenge, given that the SCC already halted the closure of Vancouver’s Insite facility in 2011.

• To avoid the same fate, Ontario will need to show that the new rules serve a more compelling purpose than the federal government’s attempted closure of Insite.

🧑‍⚖️ Robert Regular is suing investigators and prosecutors. The Newfoundland lawyer, who was acquitted of sex offences earlier this year, says he was the victim of a negligent investigation and malicious prosecution. The Crown is appealing Regular’s acquittal, so the civil suit might be a bit preemptive.

LEAVE TO APPEAL

Next stop SCC

R. v. Larocque (2024 NBCA 4)
R. v. Rousselle (2024 NBCA 3)

The Supreme Court granted leave to appeal from two criminal law decisions earlier this month. Both are about the same issue — proving that a driver exceeded the legal limit without oral evidence.

The Crown can use written evidence to prove blood alcohol content. According to the Criminal Code, a certificate prepared by a qualified breath technician “is evidence of the facts alleged in the certificate”.

But the Code is light on details. It doesn’t say whether there’s anything a technician’s certificate can’t include — like hearsay. And techs often use a bit of hearsay to establish accurate testing.

• Technicians need to check their machine’s calibration against a standard sample of alcohol. But they don’t confirm the sample’s alcohol content themselves — that’s done by separate analysts.

• So when a technician certifies that they properly calibrated their machine, they’re effectively saying “I tested against a sample an analyst told me was okay”.

The Crown says there’s nothing wrong with using the technician’s certificate to prove hearsay. But the two men appealing to the SCC argue that the Crown needs direct evidence from the analyst who tested the sample.

What’s SCC worthy? There’s currently an appellate split on this issue. Alberta required evidence from an analyst. But Yukon, Quebec, and New Brunswick (where these appeals originated) all gave hearsay a green light:

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