Case Law and Citations in Canada

Finding Case Law/Precedents in Canada

Overview of Case Law

  • Definition: Case law, also known as common law or judge-made law, refers to legal principles derived from judicial decisions rather than legislative statutes.
    • Common Law vs. Statute Law: Judges interpret and apply the law, setting precedents that lower courts must follow.

Structure of Canadian Court System

  • Hierarchy of Courts:
    • Supreme Court of Canada
    • Courts of Appeal (provincial/territorial)
    • Superior Courts (provincial/territorial): includes Divisional and Small Claims Courts
    • Federal Court (Trial and Appeal Divisions)
  • Precedents:
    • Binding precedents: Must be followed by lower courts.
    • Persuasive precedents: Can be followed, but are not mandatory.

Legal Citation Basics

  • What is a Citation?: A way to reference legal sources, including case law and legislation, allowing for easy location and verification.
    • Elements of a Good Citation:
      • Names of parties
      • Year of decision
      • Court level
Types of Citations
  • Neutral Citations:
    • Format: Year/Tribunal Identifier/Decision Number (e.g., R v Law, 2002 SCC 10).
    • Introduced by the courts for independent identification.
  • CanLII Citations:
    • Format: Year CanLII Serial Number (Jurisdiction/Court), e.g., R v Miller, 1998 CanLII 5115 (ONCA).
    • Often used where neutral citations are not available.
  • Reporter Citations (Old Method):
    • Example format: Case Name, Year, Volume Reporter Name Series Page Number.
    • Include two or more citations where necessary, emphasizing the most authoritative.

Finding Case Law

  • Access Points:
    • Online resources:
      • CanLII: Free access to Canadian law and case law.
      • Quicklaw: Paid service with advanced search tools.
      • Westlaw: Another commercial provider.
  • Finding Strategies:
    1. Use known case information to search directly.
    2. Use secondary sources for broader legal principles.
    3. Conduct keyword searches for more specific inquiries.

Key Legal Resources

  • Primary Sources of Law:
    • Legislation: Statutes, Regulations, By-Laws.
    • Case Law: Various official and preferred reporters (e.g., SCR for Supreme Court, DLR for Federal/Provincial).

Hierarchy of Sources for Citations

  • Preferred Order:
    1. Neutral citations
    2. CanLII citations
    3. Other sources

Practical Example of Citations

  • Neutral vs. CanLII:
    • Example: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 SCR 114.
  • Parallel Citations:
    • When the same case has multiple references, e.g., Horsley v. MacLaren, [1972] SCR 441, 22 DLR (3d) 545.
    • Only needed if no neutral or CanLII citation exists.

Summary of Citation Practices

  • Cite the most authoritative sources based on the hierarchy.
  • Ensure accuracy in formatting according to the Canadian Guide to Uniform Legal Citation (McGill Guide).
  • Utilize trusted databases and avoid less reliable sources when researching case law.