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

-the Supreme Court must report all of its decisions;

-the Federal Court may selectively report;

Judicial Decisions

-commercial publishers select and prepare for publication only a few decisions each year which are determined by the editors to have added something new / unique to Canada’s jurisprudence;

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-judicial decisions can be found using a citation to the printed reporter

-if preparing for court you must provide a copy of the case from the printed reporter for cases predating 2000;

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-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

If asked to research on a topic, first try:a. Dictionaryb. Encyclopediac. Textbook or looseleaf

d. Journal article

Use Secondary Sources

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1. Do you have specifics? (Case citation, party name?)

2. Unique terms3. Key Legal Issue properly stated4. Synonyms5. Truncation6. 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” /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

You Try It! Prepare a Quicklaw Query

negligence and (repair! or replac!) and (dangerous! or defect!) /s product! and “personal injury”

Common Law Matters

Judicial Decisions

4. Note up the case

3. Determine the history of the case

2. Locate governing jurisprudence

1. Review secondary sources to discover applicable law.Encyclopedias Books

Precedent

“Literally “to stand by things decided,” stare decisis is a rule that requires judges to follow or obey the rulings of other judges higher in the judicial hierarchy and is similar to the concept of a binding judicial precedent. When the facts in Case A are similar to Case B, the judge in Case B must follow the ruling in Case A if the judge in Case A is from a higher court in the same jurisdiction.” Tjaden, Legal Research and Writing, (3rd ed) (Irwin Law, 2010).

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 case2. 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.

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Locating the History of a Case and Noting Up on Quicklaw

Quicklaw:a. Locate the caseb. Choose “Note up with Quickcite”c. Filter d. Review carefully, determine

relevant casese. 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?

Remember, there are rules in the McGill Guide which tell you when it is appropriate to include the history of a case in a case

citation.

Case Citations

THANK YOU!

Annette Demersademers@uwindsor.ca

http://www.uwindsor.ca/law/library

Judicial Decisions