Step 2: Primary Sources of Law: Canadian Case Law

Introduction - What is Case Law?

The law in Canada is made of two parts:  Case law and Legislation. Both are primary sources for Canadian law.

  • Case law is made up of the written decisions of judges in court cases and tribunals. Case law comes from all levels of courts in Canada. 
  • In the common law in Canada, judges must follow the principle of stare decisis, which requires that judges follow the previous rulings (i.e. precedents) of other judges in higher courts in their province or territory and the Supreme Court of Canada on the same issue. Decisions from the same level of court or other provinces or jurisdictions may assist judges in reaching a decision. The body of case law is comprised of these decisions.
  •  Leading cases are those decisions that have been cited and followed in subsequent cases. In Canada decisions of the Supreme Court are binding on all other Canadian courts unless distinguished.
  • The use of stare decisis and precedent in Canadian law promotes the principle that the law should be applied consistently throughout Canadian Courts.
  •  Prior to 1949, Canadian Supreme Court decisions could be appealed to the Judicial Committee of the Privy Council (J.C.P.C.) in the United Kingdom, and decisions from J.C.P.C. up until 1949 can still be binding on all Canadian courts.
  • Case law from other Commonwealth jurisdictions can also have persuasive authority, particularly those from the English House of Lords or Court of Appeal, and the Australian High Court.
  • Decisions from non-Commonwealth jurisdictions may also have persuasive authority depending on the level of court of the decision, the reputation of the judge and the jurisdiction involved, decisions from the United States Supreme Court are one example.
  • Administrative tribunals are not courts of law in the strict sense, and the doctrine of stare decisis does not apply to their decisions. These decisions can, however, be reviewed by the courts.

Researching Case Law

Ideally, references to case law can be located through secondary sources or finding tools.

  • Textbook authors generally make reference to key cases that illustrate the points of law they are discussing.
  • Journal authors often refer to important cases in the footnotes.
  •  Encyclopedias are organized by topic, with articles or paragraphs that synthesize and comment on specific points of law. Citations to cases that support the principles discussed accompany each entry.
  •  Topical case reporters contain indices organized by subject and case name.
  •  Online legal databases enable full text searching of case law by keyword, subject or case name.
  •  Digests arranged by topic provide summaries of important cases, with citations to full-text case reports.

Look for Leading Cases

  When searching for cases your object is to locate leading cases. Look for

  • Recent cases at the highest court possible for the jurisdiction
  • Cases that have been discussed extensively in the commentary
  • Cases that have been followed or considered in other cases

Finding Case Law using Digests

  • A digest provides the most efficient means of locating cases as the editors of these digests have summarized, reviewed and classified each case, organizing them by topic with other "like" cases.
  •  A typical digest entry includes:
  • Subject headings or subject key numbers
  • Style of Cause or Case Name 
  • Brief synopsis of the case
  • What the judge decided
  • The case citation or link to the full text of the case.

Using The Canadian Abridgment

T
he Canadian Abridgment includes digests of thousands of Canadian common law from 1803 onward and unreported cases from 1986 to the present for the common law provinces. Quebec civil law cases are not included. The Abridgment is available both online and in print.

The Canadian Abridgment Online 

  • Available on Westlaw CanadaThe electronic version of the Abridgment can be searched using either "Terms and Connectors" or "Natural Language."
  • Full text searches can be combined with searches for: Subject Title, Classification Number, Classification Phrase, Case Name, Citation or Year. Users can also browse the Table of Contents.
  • The database is updated daily. Each digest provides a link to the full text of the case if it is available, as well as  link to all other digests within the same subject classification.

The Canadian Abridgment in Print:

Although it has a number of components, the parts of the Abridgment that are most relevant to case law searching are:

  • Main Work- case law digests in a number of volumes, organized alphabetically by subject and their supplements.
  • Canadian Current Law – A biweekly update of all components of the Abridgment including the case law digests and Canadian case citations.

 To find a case digest in the print Abridgment consult one of the finding tools:

Key and Research Guide - Use this to find all the cases relevant to one particular point of law together as each case digest is assigned a subject or subjects which are identified by a key number.
To ensure you are up to date, check your key number in the index of the soft cover supplement to the volume you are using. Then check topic and key number in the looseleaf Case Law Update for digests that have been indexed after the most recent soft cover supplement by. Repeat this process in the issues of Canadian Current Law that were released after the publication of the Update.

General Index - provides an alphabetical list of topical keywords and subdivisions with cross-references to various legal concepts. To ensure that your search is completely up to date, consult the indexes in the issues of Canadian Current Law that were released after the last update of the General Index. These indexes are cumulated quarterly.

 Consolidated Table of Cases – If your secondary research has provided you with citations to cases you think might be useful you can check the Table of Cases to locate a digest of the case and read the synopsis to make sure you are on track.  This table provides citations to the full-text version of the case along with references to the digest(s) of the case in the Abridgment.  Note: Cases that raise more than one legal issue will be included in more than one subject area.

To conduct a search in the Consolidated Table of Cases:

  1. Check the hard cover volumes of the Consolidated Table of Cases for cases published up to 1995. These volumes only refer to cases that appear in the second edition.
  2.  Look at the soft cover supplements for digests of cases appearing in the remaining volumes of the 2nd edition, published after 1995 as well as for references to digests as they appear in the 3rd edition.
  3. Cases that post-date both the main work and its supplements are in Canadian Current Law. A Table of Cases at the front of each issue will refer you to the location of case digests within that issue.

 The Canada Digest

The Canada Digest is only available on Quicklaw/LexisNexis. The database includes digests of cases going back to 1893 and also provides digests of cases from Quebec and from various administrative tribunals.  Like the Abridgment, the Canada Digest  can be searched by keyword or case name, citation, classification number or summary.  It can also be browsed via the table of contents.  Each digest includes a link to the full text of the case if available and the menu provides access to all cases with the same classification number.

Sources of Case Law: Reported Judgments

  • Reported judgments are the judgments selected to be published (or reported) in one of the case reports (also known as case reporters or law reports).
  • Cases are chosen for publication because they have an impact on or change the law in some way.
  • You can usually tell that a case has been reported by its citation. The citation will generally include:  
    • year of decision in parentheses (1974)  or year of reporter in brackets [1974]
    • the volume number
    • the abbreviated title of the reporter
    • page number
  • You will need to decipher the abbreviation by using one of the print abbreviation guides or by going to the Cardiff Index to Legal Abbreviations.
  • Print versions or reporters can generally be located by searching the library catalogue for their title.  

Sources of Case Law: Unreported Judgments

  • Many decisions that do not get published in print or in case reports are unreported because they simply apply the law rather than adding anything new to the common law.  
  •  Many cases are not chosen for publication; however, just because it is not published does not mean it is not valid important in the courts.
  •  “Unreported” cases may be cited as authority and are found online in commercial databases, the court’s website or on CanLII.
  •  Older unreported judgments are available in hard copy directly from the court.
  •  Unreported cases will not have the type of citation listed above; instead,  for more recent cases you are likely to see a neutral citation. Neutral citations include:
  •  Year
  • Court identifier
  • Case number
  • Older cases without a neutral citation will have
  • Date
  • Judicial district
  • Docket number
  • Jurisdiction and court
  • ·        Unreported cases in commercial databases will have their own unique database identifier as well.

 Sources of Case Law: Commercial Legal Databases

  • LexisNexis/Quicklaw  and Westlaw Canada, have full-text reported and unreported judgments that are searchable by citation, keyword, subject or case name. Be sure to evaluate the importance of all decisions as there may be different decisions on different points of law that have not been adjudicated  by a superior court.
  • Note: Also evaluate the importance of an unreported decision as part of your legal research. Online commercial publishers include all of the decisions provided to them by the court regardless of their possible importance to the judicial community.

Sources of Case Law: Legal Information Institutes

These sites provide an excellent source of free access to case law from countries throughout the world including Canada.