9 Introduction to Caselaw
Introduction
With the notable exception of Quebec, Canada and its provinces and territories are common law jurisdictions. This means that “the law” that we utilize, refer to, and rely on consists not of a single discrete Code, but rather of a centuries-long, potentially multi-jurisdictional accretion of caselaw and legislation that interacts with, interprets, and refers to each other.
In law school, we tend to interact with caselaw that has been in some way pre-digested and handed to us, either in the form of excerpts in a casebook, or via citations in assigned readings. In part because of this model, we tend to develop a view of caselaw where individual cases deal with or “stand for” singular legal topics or principles. However, the reality of working with caselaw in a more practical manner is that one case can (and usually does!) address many legal issues or topics. For example, one case that on its face deals with a tort such as personal injury, could also deal with the qualification of an expert, admissibility of evidence, and/or various aspects of civil procedure. This is important to understand, so as to reduce confusion when we see a case that we “know” deals with a certain topic, being cited in what seems like an entirely unrelated context. This is most clearly illustrated by the fact that criminal cases regularly cite civil cases, and vice versa! As well, a case can be overturned on appeal on one issue or topic, but stand on another issue or topic.
This chapter is intended to build on your understanding of what a case is, what it includes (and what it doesn’t include), in order to assist you in using caselaw to further your legal research in an effective manner.
Case v Decision
When we refer to caselaw, such “the case of A v B,” or “researching cases,” we tend to default to the term “case.” However, what we are usually actually referring to are decisions: One case can consist of many decisions. Not only could one case have a trial level decision and an appeal decision (or multiple levels of appeals), but it could have multiple decisions all at the same court level (usually the trial level), such as a separate decision on admissibility of a particular piece of evidence, a sentencing decision in a criminal trial, etc.
This is part of the reason why there is such a strong focus in case citation not on the style of cause (A v B), but the neutral or print reporter citations… Leaving aside the fact that two unrelated cases can have the same style of cause, even one single case can often have multiple decisions with identical styles of cause, but unique citations. This is also when when I’m asked for assistance with finding a case, I ask for the citation, and if I’m given the style of cause, I ask again!
What is a Decision?
A decision is the written or oral reasons for judgement, as issued by the decider in the case. As Canada is a common law jurisdiction, reasons rely heavily on earlier cases in shaping the reasoning of the decider. The delineation between binding and persuasive cases tends to be more complicated than often initially understood, but the fact remains that in court cases, judges are often bound to follow previous decisions (stare decisis).
While a verdict or decision on the outcome of the case is included in reasons, certain types of cases, such as criminal trial decisions, often do not have reasons, just a verdict (and therefore are not reported). It is useful to think about reasons as the why of a decision, rather than simply the what was decided. While there might be a recitation of the facts or evidence, the meat and the value of the decision lies in the reasoning of the decider, including how the decider considers earlier decisions, and chooses to either follow or distinguish them.
In appeal decisions, which are typical heard by a panel of deciders, the decision is usually written by one decider, not the entire panel, although it is relatively common for another decider to write additional reasons (or a dissent).
Reasons are not the verbatim record of what was said in court: That is the court transcript. Reasons are also not the actual statement of claim, motions, or other documents: These make up the court file. Neither tends to be available through basic access to conventional database sources (Westlaw Edge Canada, Lexis+, Canlii) but may be available by contacting the court where the trial was heard.
What Actually Gets Decided?
It is vitally important to remember that the decisions we read, work with, and cite represent only a tiny fraction of cases which are started. While about two-thirds of criminal cases end up in either a guilty verdict or acquittal, “[f]ewer than 4% of the civil cases which are started in Ontario actually go all the way through to trial.” When we look at reported decisions, we are truly looking at only the tip of the iceberg, and that should be kept in mind, especially when considering topics such as quantums. Many civil trials are settled, and Minutes of Settlement are nearly always confidential. Criminal trials are also limited in availability, as while a higher percentage end in decision (compared to civil trials), the actual decisions are often not accessible.
Binding v Persuasive
Often, we learn about what cases are likely to be binding or persuasive in our jurisdiction in a fairly simplistic way… Anything i” binding if it is in the direct line of appeal for whatever court we are in; ie if we are in the Ontario Court of Justice, decisions of the Ontario Court of Appeal and the Supreme Court of Canada are binding. Anything that isn’t in that direct line is persuasive, such as Appeal Court decisions from other provinces, and trial level decisions from Ontario and other provinces (as well as decisions from other countries).
However, this is a vast over-simplification… Firstly, it is inaccurate to say that a decision is persuasive. Rather, we can look at any decision that isn’t from a higher level court in the direct chain of appeal as something that we could use, if the quality of our arguments for why it should be used are good enough. As the term “persuasive” implies, it is our role to persuade the reader or decider that they ought to follow the decision. It is not enough to say “this case is persuasive” or “you should be persuaded by this case.” We must make the case through our arguments, written or oral, for why the reasoning in a decision is sound and why then our reader/decider should follow it/incorporate it in their decision-making. This is a case of showing, not telling. We need to craft our arguments and select our quotes to clearly illustrate to our reader/decider that the decision we have selected is worthy of inclusion.
It is also important to consider that persuasiveness can have levels. Some of these are more obvious, as for example, a Court of Appeal decision from another province is more likely to be able to be argued as being persuasive versus a trial level decision from a different jurisdiction. Some levels are less obvious; courts/deciders in some jurisdictions are more likely to follow certain other jurisdictions (and not others). For example, Ontario courts more often look west for reasoning (to BC and Alberta), versus to the Maritimes. Sometimes, these levels of persuasiveness can be downright obscure, or at least very idiosyncratic… Some judges are widely regarded as experts on a given topic, and their decisions are frequently looked to. And some judges really like the reasoning and writing of particular judges, and do not like the reasoning of other judges! Unfortunately, all of this is difficult if not impossible to sum up tidily, but has to be learned through practice and mentorship. However, the basic concepts of persuasiveness being something that comes through our writing and reasoning, and that all potentially persuasive decisions are not equal, are key concepts to keep in mind.
Does this mean that “binding cases” are more straightforward? Well, not really! Even what appear to be binding decisions (such as those from the SCC) still require argument. Clever argument can convince a decider that a given “binding” decision is not on a sufficiently similar point of law, and therefore doesn’t need to be/shouldn’t be followed. You may see this when noting up a case; sometimes a later case will “distinguish” an earlier decision. What is happening here, in essence, is that decider of the later decision has looked at the earlier decision, and decided/been convinced that for whatever reason, the issues at play are insufficiently similar to be required to follow it.
Also, if there is a case which is so overwhelmingly, obviously on-point, both factually and in regards to legal issues, and that originates from a higher level of court, then the litigation tends to not progress very far… The outcome is fairly obvious. This is part of the reason for 96% of cases settling, as discussed above.
It may be useful to think of it this way… It is vanishingly rare for a decider to follow any previous decision blindly. While it is easier to persuade a decider to follow a so-called “binding” case, the reality is that the quality of argument (written or oral) always needs to be there. “Binding” cases can basically be thought of as more persuasive than “persuasive” cases, but the burden of persuading always falls to those who are arguing that a decision ought to be followed. As well, it is never sufficient to simply tell a reader or decider that they must follow the reasoning of a previous decision; we always need to show them why, through appropriate quoting of the previous decision, and our own reasoning.
