⚖️ Time's up

• Federal Court says it’s time for action on judicial vacancies

• Air Canada’s chatbot misrep

• Western provinces expand free legal services

• Greece legalizes same-sex marriage

• By the numbers: are computers better at reviewing contracts than lawyers?

COURTS

Judicial chairs can’t sit empty forever

Hameed v. Canada, 2024 FC 242

What time is it? Justice Henry Brown of the Federal Court says it’s time to appoint more judges. On Tuesday, Justice Brown said the federal government should take steps to get judicial vacancy numbers back to where they were in the spring of 2016. Returning to 2016 levels would leave 46 openings — a pretty drastic reduction from the “appalling” 75 spots sitting empty at the start of this month.

The Law Society of British Columbia welcomed the Federal Court decision with open arms — which is no surprise, given that an astonishing 14.5% of judicial positions in the province are currently vacant.

Following conventions: You won’t find any sort of written law saying the government needs to appoint judges at a particular pace. But Justice Brown said a constitutional convention creates timeliness requirements. In his view, there’s a convention that “judicial vacancies must be filled as soon as possible after vacancies arise, except in exceptional circumstances.”

Can the Federal Court really do that? That’s where things get dicey. Although plenty of people seem to agree the government is making a mess of the judicial appointment process, critics have raised several questions that aren’t fully answered by the Court’s decision:

• What’s the legal basis for a court to hold the government accountable by declaring that a convention exists?

• Does Yavar Hameed — an Ottawa lawyer who’s simply fed up with the lack of judges — have standing to insist on a conventional appointment process?

• Does the convention of timely appointments even exist? (Seven years of recent data suggests the government’s conventional practice is more akin to dawdling).

All valid questions. But there’s still something unsettling about the government letting judicial chairs sit empty. In Justice Brown’s view, the government’s inaction undermines the rule of law — and he’s not the first Justice Brown to say the rule of law demands functional access to the judiciary.

What’s next: Justice Brown didn’t order the government to follow the convention, but he did declare that the convention exists. The government could theoretically ignore his decision and carry on, but governments tend to listen to what courts have to say — even when it comes to non-binding declarations. And that might prompt the government to appeal.

The government hasn’t said whether it plans to appeal yet, but Justice Minister Arif Virani did defend his appointment prowess on social media. Taking a page from Donald Trump’s book, Virani emphasized that he might just be the greatest judicial appointer of all time:

Even if Justice Brown’s decision doesn’t hold up down the road, it at least puts some extra pressure on the appointment process. One thing’s certain…

HEARSAY ROUNDUP

Canadiana

🤖 Air Canada’s chatbot put its foot in its mouth, netting the airline a loss at BC’s Civil Resolution Tribunal. The bot told a customer they could book a regular-priced fare and then claim a bereavement discount retroactively. Air Canada refused to honour the reduced fare, but the Civil Resolution Tribunal held the airline responsible for the consequences of the bot’s negligent misrepresentation.

🛟 Alberta is expanding Legal Aid eligibility effective April 1. Those who make more than $24,456 are currently ineligible, but the income threshold is increasing to $30,000.

💰 BC is also expanding access to free legal services. The province is spending $29.1 million to fund a family law clinic that will give free services to victims facing intimate partner violence.

↩️ The legislative gap that appeared to leave New Brunswick without any child protection legislation over the holidays is now closed. In fact, it never existed — the Court of Appeal said it’s safe to ignore the legislature’s drafting error because it was clearly a mistake.

Beyond the border

🏳️‍🌈 Greece legalized same-sex marriage, becoming the first Orthodox Christian country to make the change.

🫣 A major US law firm said it plans to terminate 10% of its employees. According to Bloomberg, the layoffs are connected to a recent trend of cutbacks at firms heavily dependent on an optimistic tech sector.

Tech news

🦾 A recent study puts an empirical measure on the claim that large language models are faster and better at contract reviews than junior lawyers. The study was conducted by a legal tech company, so factor that into your assessment, but here’s an extract from the abstract:

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