Vavilov & Dunsmuir: Looking for Signals in the Precedential Game of Thrones

As everyone knows, administrative regulation nerds (their very own expression) obtained a pleasant Vacation current on December 19 when the Supreme Courtroom issued its long-awaited resolution in Vavilov. This necessary occasion in Canadian regulation isn’t simply enjoyable for the admin regulation crowd, it’s additionally an event for us, authorized info geeks, to stay in actual time one other sport of “precedential sport of thrones.”

I’ve been for a very long time in discovering alerts that would point out {that a} case is not good regulation (or at the least not to be cited with out warning). There are methods to identify these utilizing the language of a superseding case (after which once more, it’s not trivial), however I’ve all the time been inquisitive about different sorts of alerts, together with variation in quotation counts.

Watershed circumstances, like those who set a brand new normal of overview, are fascinating as a result of of the quantity of citations they generate. It’s arduous to search out significant statistical alerts citations for a call that’s cited solely a handful of occasions yearly, however when circumstances destined to build up hundreds of citations, it’s simpler to identify fascinating patterns. To assist anticipate what is going to occur with Vavilov, let’s take a look at what occurred when Dunsmuir was issued in 2008.

Whereas Dunsmuir is “solely” the third most cited case in the CanLII assortment, the two circumstances above Dunsmuir in the “most cited ever” rankings (Grey and Crane) are cited greater than 30,000 occasions every, however virtually completely by the identical tribunal (e.g. Grey is cited 30,963 occasions, however solely 49 occasions by courts). So Dunsmuir is certainly sitting on the throne as the case having the most impression on later court docket choices (cited 16,732 occasions complete, together with 14,330 occasions by courts).

Vavilov will little doubt be a worthy challenger to Dunsmuir’s throne however there’s no certainty that it’ll ever beat Dunsmuir’s complete citations. First, Dunsmuir has a spectacular head begin, and second, Dunsmuir will proceed to be cited, regardless of memes suggesting in any other case (the rise of the authorized meme tradition in regulation colleges would most likely be value a put up some day). The latter is evident from one of the first circumstances citing Vavilov, in which Justice Graesser of the Alberta Courtroom of Queen’s Bench wrote:

“As for the reasonableness normal relevant to this software, help from circumstances similar to Dunsmuir and Newfoundland Nurses and Alberta Privateness Commissioner v ATA nonetheless supply steering in assessing the reasonableness of a specific tribunal’s resolution below the newly-articulated normal.”

Peter v Public Well being Attraction Board of Alberta, 2019 ABQB 989 (CanLII)

Contemplating this, Vavilov must stand as the main case on normal of overview for a really very long time to ultimately prime Dunsmuir’s complete citations, and I don’t know sufficient about admin regulation to opine on whether or not it stands on stable sufficient grounds in regulation (and, I ought to say, ease of software) to perform that.

For those who’ve by no means been a fan of Dunsmuir and are desperately trying for one thing to root for in your life (however maybe it is best to as an alternative look for a pastime), you may root for Vavilov to be faster than Dunsmuir at reaching 500 citations. It took Dunsmuir solely 114 days to achieve this plateau, which is sort of the feat contemplating that solely about 0.2% of all circumstances attain 500 citations in their “lives”. The ever present R v. Jordan, in comparability, took 402 days to achieve that milestone.

The place it will get fascinating is whenever you take a look at the impression of new choices on the quotation frequency of the choices it “replaces”. Earlier than Dunsmuir, main circumstances on normal of overview included Southam, CUPE v. NB Liquor Board and Pushpanathan. The impression of Dunsmuir on the quotation frequency of these circumstances was immediately felt (post-Dunsmuir numbers are in the yellow shaded part):

[Click image to see the larger graphic.]

There’s a transparent drop from the second that Dunsmuir is issued for each Southam and Pushpanathan. CUPE is an older resolution, having been issued in 1979 whereas the different two are from the late 90s. The post-Dunsmuir drop for CUPE is tougher to see from the graph but it surely was cited about 38 occasions per yr on common from 1998 to 2007 and that dropped to 30 occasions post-Dunsmuir. So a drop there’s, however most likely not one thing that’s statistically important.

Dunsmuir was issued on March 7, 2008, so there have been two months in that yr the place choices issued by courts have been unaffected by the jurisprudential Thanos that was to come back and “snap” their quotation numbers. Simply for enjoyable, let’s zoom in and examine if the pre/put up tendencies may be noticed on a month-to-month foundation. Taking Pushpanathan for example, we are able to see how fairly instantaneous the Dunsmuir impact was (put up Dunsmuir is in blue shade):

[Click image to see the larger graphic.]

Positive, there’s a bit of spike in Could and June (we’re coping with smaller numbers right here than when yearly stats, so some variance is to be anticipated) however 4 of the final 5 months of 2008 have single digit quotation counts, when it by no means dipped beneath 15 citations previous to Dunsmuir. Additionally word that the quotation counts throughout the Could-June “spike” are decrease than the 5 months previous to Dunsmuir (in different phrases, the spike wouldn’t appear to be a spike if there wasn’t such a giant drop in March).

Simply as we’re more likely to say about Dunsmuir in 20 years, Southam, CUPE and Pushpanathan are nonetheless cited to today. Certainly, 2019 will not be on the first graph as a result of there’s nonetheless choices coming our approach from 2019 presently of the yr, however thus far they have been cited respectively 61, 14 and 22 occasions. Accordingly, if our heuristic-in-the-making to determine choices that aren’t the freshest regulation was to attend for them to not be cited in any respect, we wouldn’t get far.

Let the video games start!

Vavilov & Dunsmuir: Looking for Signals in the Precedential Game of Thrones

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