Working with Judicial Decisions Part Two by Annette Demers BA LLB MLIS Judicial Decisions

Judicial decision = public record Majority are “unreported” (only found at the registry office) Judicial Decisions

Supreme Court must report all of its decisions. Federal Court may selectively report. Judicial Decisions

“Reported decisions” Are determined by the editors to have add something new / unique to Canada’s jurisprudence; Judicial Decisions

Citation – used for both print and electronic. If preparing for court you must provide a copy of the case from the printed reporter for cases predating Judicial Decisions

Judicial decisions are sometimes available from the website of the tribunal. Judicial and tribunal decisions are found on CanLii and Quicklaw. Judicial Decisions

Judicial decisions are found on Westlaw. Westlaw does not provide tribunal decisions. Judicial Decisions

Once you’ve decided which system to use, be sure to choose the correct database within the system. Judicial Decisions

If asked to research on a topic, first try: a. Dictionary b. Encyclopedia c. Textbook or looseleaf d. Journal article Use Secondary Sources

Judicial Decisions 1.Do you have specifics? (Case citation, party name?) 2.Unique terms 3.Key Legal Issue properly stated 4.Synonyms 5.Truncation 6.Put it all together Preparing for a Case Law Search

Algorithm QL

Let’s Try it together! Does the contract principle of “caveat emptor” (buyer beware) still apply in cases where the seller engaged in fraudulent misrepresentation?

Sample Query (“caveat emptor” or “buyer beware”) /s “fraudulent misrepresentation”

You Try It! Prepare a Quicklaw Query Using a negligence claim, could a party recover the cost of repairing or replacing a dangerously defective product from a manufacturer where the defect caused an accident resulting in personal injury?

You Try It! Prepare a Quicklaw Query (repair! or replac!) and (dangerous! or defect!) /s product! and negligence /s "personal injury"

Common Law Matters Judicial Decisions 4. Note up the case 3. Determine the history of the case 2. Locate governing jurisprudence and review carefully. 1. Review secondary sources to discover applicable law. EncyclopediasBooks

Reviewing the Case When reviewing the case: 1.Be fluent with the facts. (Usually set out in detail in the trial decision. However trial decision is not always reported). 2.Understand the key legal issues and how each was decided by the judge. 3.Understand any tests that the judge used. Many of these originate from early cases. 4.Understand the outcome of the case itself.

Reviewing the Case When reviewing the appeal decision: 5.If the case was appealed, understand the arguments made on appeal. 6.Understand the key legal issues and how each was decided by the judge. 7.Understand whether the judge overturned or modified the trial decision. 8.Understand the final outcome of the appeal.

Note Up In order to understand whether the outcome of a particular case is still good law, we must understand: 1.History of the case. Was the decision upheld on appeal? 2.Cases that have cited the case. Was the decision upheld in later decisions by higher levels of court, or was the decision overturned or modified in some way?

Note Up Our Online databases provide electronic tools which help users to see: 1. History of case 2. Cases that have cited other cases (judicial consideration).

Understanding the History of a Case 1. Review the history line in an SCC decision. Example: Locate Irwin Toy using SCC Lexum site.

Locating the History of a Case and Noting Up on Quicklaw Quicklaw: a.Locate the case b.Choose “Note up with Quickcite” c.Filter d.Review carefully, determine relevant cases e.Note up any relevant case to ensure it is still good law

Noting Up – Let’s Do it Together! Use Quicklaw to find any Supreme Court cases which have discussed this case: 2009 SCC 12

Noting Up – Cases – You Try Quicklaw Example: Are there any Supreme Court cases which have followed: R v Craig, 2009 SCC 23, [2009] 1 SCR 762.

Noting Up – Cases CanLII Look for this case on CanLII: 2008 SCC 9 (Dunsmuir). Has this case been cited by the SCC? Which of the resulting SCC cases has been most frequently cited?

McGill Guide provides rules about when it is necessary to provide the history of a case as part of your citation. Case Citations

THANK YOU! Annette Demers Judicial Decisions