12 Working with a Decision
Introduction
The classic task we think of when we think about working with a decision is noting it up, and indeed, noting up is important. However, noting up a case can be thought of working with it in one direction… Forwards. While this is very important, I suggest that once you have found even one decision that is relevant to the issues at hand, you can do what I call “working a case forwards and backwards.”
Working/Looking Back
Often, the hardest part of caselaw research is finding a starting point, or one relevant decision. Once you do, read the whole decision, not just the paragraph(s) that contain your key words or whatever other datapoint brought you to the case. Read the decision not just for the reasoning in it, but for what is cited by it. Focus on the paragraph(s) that deal with the topic(s) most of interest to you, but be sure to read them in context. What cases are referred to in these paragraphs? How does the judge/decider use these previous decisions to shape and form their reasoning process? Look beyond cited caselaw. Are there articles/reports/texts cited by the judge/decider? Make a list (as part of your research plan) of all the items that seem to be useful. As well, pay close attention to the authors and organizations mentioned. In addition to the specific articles/reports/texts cited in your decision, these authors and organizations may have additional, more current material on the same topic.
Work it Forwards: Noting Up Decisions
In its simplest form, “noting up” is the process of establishing whether a decision or a piece of legislation is still good law. Here, we will look at the noting up process in the context of caselaw. Noting up a case is important because most of Canada (outside of Quebec) follows common law principles, which means we use the principle of stare decisis, “to stand by things decided.” Judges look to past cases that deal with similar legal issues for guidance on how to treat the case before them. This creates a legal system that’s both predictable, but that also allows the state of the law to gradually shift.
This is important to our research for a number of reasons: Firstly, and most legally significant, sufficient negative subsequent interpretation can lead to a case being no longer considered “good law.” Secondly, cases that cite your case may be dealing with similar issues… This is a good way to advance your research.
Noting up takes two primary forms. Firstly, we need to determine the appeal status of the case in question: If it is a very recent case, could an appeal be pending? If so, you will need to check back later. While the time limits to launch an appeal tend to be quite short (often 30 to 60 days, depending on the court and type of appeal), it can take quite some time for a court to first decide whether to hear an appeal, and if it does decide to hear it, even longer to issue a decision/reasons. While the Supreme Court of Canada does publish a Bulletin that lists all appeals filed, as well as a database of decisions of Applications for Leave, this level of information about pending appeals is essentially unique to the SCC. Therefore, while it is possible to know of pending appeals to the SCC, appeals to provincial courts of appeal tend to be much more challenging to find out about.
Practically speaking, cases that could be appealed to the SCC should be checked via the Bulletin after the time limit allowed for launching an appeal has expired, but can then generally assumed to be the final word (if not appealed). Even if a case has been granted Leave to Appeal, a case can still be used, although it worth informing your reader that an appeal is pending. For cases that can be appealed to a provincial Court of Appeal, in the absence of information about whether an appeal may be pending (noteworthy cases are worth checking in news media), the only real option is to use the case until/unless other information comes to light!
If the case is older, has it been appealed, and if so, was it overturned on appeal? Even if you do find out that the case has been overturned, you should still give the appeal decision a good close read. It’s not uncommon for cases to deal with multiple issues, and the case may have been overturned on an issue other than what you’re concerned with.
Secondly, and this is the more complex process, we need to look at whether our case has been “judicially considered” by subsequent cases. This consideration can be as simple as merely citing our case within a long string of similar cases, or as complex as interpreting our case, applying it, or even disagreeing with it.
Overall, it is important to understand that noting up is actually somewhat more complicated than a simple good/bad binary. More accurately, we are interested in whether a decision is still “good law” for the legal principle that we’re interested in. As previously discussed, one decision can address multiple legal topics, and while a decision may have been overturned on appeal or not followed by a later judge on one issue (for example, the amount of damages), the reasoning on a different topic (for example, apportionment of liability) may stand. Therefore, it is important to read any appeal or negative treatment of your case to understand what actually happened.
All major legal databases include a note-up feature. On Westlaw Edge Canada, this is accessed through the “Citing References” tab (usually then limited to “Case and Decisions”), on Lexis+ via the “Citing Cases” link, and on Canlii via the “Treatment” tab. However, each database has nuances, strengths, and weaknesses that can impact how and when you may choose to use one or more of them.
Noting Up on Westlaw Edge Canada
Before we go into a full note up, we can get a general sense of how a decision has been treated (or even if it has been used it later cases) by looking to the left of the decision name. Westlaw uses a series of colour-coded flags and other indicators to alert users to cases with negative or cautionary treatment (or the existence of only neutral citing cases). The temptation with these flags is often to see a red flag, or even a yellow one, and immediately discount or discard a case. This is neither necessary nor good practice! Think of the flags not so much as warning you away from a case, but drawing you towards reading a case’s treatment. As discussed previously, even a case that has been overturned on appeal or that has been distinguished or even not followed, may still hold value in your context.
Westlaw Edge Canada’s noting up feature is termed “Keycite,” a term which likely originates from West’s American roots and its US key numbering system. From within a case, access the note-up material via the “Citing References” tab. While there is a “Find and Keycite” tab from the WEC homepage, the emphasis in WEC is always on finding the cited document first, as the citing references are a tab within a document, rather than a separate document. While this does require an extra click or two, always being pushed into the document before the note-up does help us ensure we really are looking at what we want to be looking at.
Beyond flags, what does Westlaw’s note-up feature offer, and how can we use it to get the most out of it? Westlaw’s note up feature encompasses far more than caselaw, and splits citing references up into “Secondary Sources,” “CED and International,” and “Cases and Decisions,” as appropriate. This is advantageous, as being pointed towards commentary and discussion of your decision in secondary materials is quite helpful. This is also probably why the “note up tab” is labelled “Citing References,” as the references encompassed by it go beyond caselaw.
However, as useful as all of the secondary sources can be, they are not, strictly speaking, noting up! So, how do we winnow through the wealth of citing references to perform a more precise note-up?
Firstly we want to limit what we are seeing to just cases and decisions. Doing so not only accomplishes the goal of moving from finding commentary to noting up, but also will open up access to a plethora of filtering options that are relevant strictly to caselaw.
Westlaw displays note-up results in a chart format that pulls out and displays key information (treatment type, case name and citation, date of decision, and depth of treatment). This chart makes it fairly simple to scan your results and get a good impression of what sort of treatment a decision has. This chart defaults to order by treatment type (which does mean that recently added decisions still tend to be listed first, as they have not had their treatment type assigned yet), but can be re-ordered by a range of fields. Generally, re-ordering results by date or depth of treatment are the most useful ways to view results.
While there are quite a few different filters that may be useful in different contexts, these are the ones that tend to be the most useful, and in one case, the least understood/used:
- Depth of Treatment: This filter addresses how much discussion of your case will be found in the citing case. With four options from “mentioned” to “examined,” this filter is a great place to start, especially if your decision has hundreds of citing cases. I usually start by selecting four ticks (“examined”) and three ticks (“discussed”), when there are more than a handful of citing cases. This limits the results to cases where the cited case is used in some depth, and it is more likely to find meaningful discussion of the significance of the case, and when it is or isn’t likely to be useful. The lowest level of depth of treatment, one tick (“mentioned”) often means that the case is not examined at all, but often is merely one case in a string of cited cases illustrating a particular proposition.
- Treatment Type: This filter addresses what type of discussion/use of your case is made in the citing decision. Here is where we can quickly and easily split out the negative treatments and read them to figure out whether they will impact the use of our decision or not. Look for “Not Followed,” where essentially, the decider does not agree with the reasoning in our decision. This is fairly unusual, and a major concern. However, that being said, if there is a decision that does not follow the decision being noted up, this is an excellent time to undo (clear) filters and sort the citing cases not by the default, “Treatment Type,” but rather by date: If the negative treatment of your case was years in the past, but courts in your jurisdiction are still following your decision, the “Not Followed” decision can often be treated as an outlier. More commonly, look for “Distinguished In,” which while not positive, is less overtly negative or concerning, as it usually indicates that the decider had no concerns with the reasoning in our decision, but found that it wasn’t applicable in a given set of circumstances. This can actually be quite helpful in determining the limits of applicability of our decision.
- Abridgement Topics: This filter is often the least used filter, the least understood filter, and potentially, the most useful filter! As discussed previously, the Canadian Abridgement places every case on Westlaw into a topical tree structure. This does not mean a one to one relationship between decision and topic! One case can be, and usually is, ascribed to multiple topics. This filter allows us to winnow through citing cases that deal with a particular topic, which can dramatically reduce the number of irrelevant results. For example, if we are noting up a case that deals with an aspect of trademark law, which is what interests us, but also touches on civil procedure (which isn’t relevant to us), we can use the “Abridgement Topics” filter to limit citing cases to those that are also deal with trademark law. This is fantastic way to focus a note-up on topically similar cases.
Each of these filters can be applied one at a time, or in concert with one another (and the other available filters). Generally, it is usually a good idea to not go overboard with filters all at once, as it is too easy that way to filter the results down to zero. I strongly suggest selecting the filters one a time, applying each filter after every selection. This can be quite illuminating, as the number of hits reduces rapidly, or not at all, with a given filter!
In addition to filtering, there is also the option to “search within” the note-up results. This is handy when there is a particular word or phrase of interest, or if you would like to look within the note up for a mention of an additional case, or piece of legislation.
It is important to remember that for many of these filters, there is a significant aspect of human judgement. While filters such as “Jurisdiction”, “Date,” or “Court Level” are essentially quantitative, human editors are involved in deciding what level of depth of treatment to ascribe to a decision, what Canadian Abridgement digests to attach to it, or sometimes, even whether a decision follows or considers another case. Therefore, as useful as all these filters are, do view them with an eye towards the possibility of inaccuracy or at least differences in editor judgement.
Noting Up on Lexis+
At the time of this writing, LexisNexis had just converted accounts from Lexis Advance Quicklaw to Lexis+. The conversion remains in progress, and therefore the actual functionality and availability of features remains a moving target. What is described below may still be accurate at time of reading, but also may not reflect the full availability of features and tools.
Lexis+ terms their noteup feature “QuickCite.” Here, the note-up is an entirely separate document from the decision. You can skip reading a decision, and jump directly to its note-up by using the homepage search bar to search for “cit:” followed by the case citation (not the style of cause… this only works with citations). Alternatively, if you are already reading a case, QuickCite allows you to get a brief sense of the treatment of a decision by looking at the indicator to the left of a decision’s style of cause. From here, you can either click on the indicator or on the “Citing Cases” link under “Related Content” on the right-hand side of the page to access the note-up of the case. While “Commentary Referring to this Case” appears as a separate link underneath the “Citing Cases” link, this content is actually on the same page as the citing cases (as is the case history), so you do not have to open these two links separately.
The Citing Cases/note-up section of the page starts with the option to swap between Graphical and List view. The graphical view is a handy colour-coded representation of what sort of treatment the case has received, and can be sorted by court/tribunals, year, and jurisdiction. This option is particularly useful when you are interested in a quick “at a glance” overview of where/when/by what courts the decision has been used, and general themes of positive/neutral/negative treatment.
Swapping into the List View offers a selection of filters that limit the list of citing cases. While these filters are not extensive, they do offer the essential limiters:
- “Citator Treatment” considers the type of treatment of the case. This filters on the annotation under each citing case (the coloured box). While the filter only has four major divisions, the annotations it is based on actually has more nuance: “Negative” (Not Followed, Questioned), “Cautionary” (Distinguished), “Positive” (Followed, Followed in Minority Opinion), and “Neutral” (Mentioned, Explained, Cited, or Cited in a Dissenting Opinion).
- “Court” is a very granular search. At this point, it is not possible to, for example, select all courts of appeal or all tribunals with a single click. Each court has to be checked off individually, using the “Select Multiple” link. The courts are identified by abbreviation, which usually are somewhat evident (first letters indicate jurisdiction, later letters indicate the specific court or tribunal), but can be quite confusing. Do pay attention to the order: While overall the courts/tribunals are organized alphabetically, which groups them together by jurisdiction, the Supreme Court of Canada is privileged, and always appears at the top of the list, not in the “CA”s with other Federal courts and tribunals.
- “Year” is fairly self evident. What is less self evident is that the “Select Multiple” link not only allows you to do just that, but also offers pre-build “Quick Select” links for past three, four, five, and ten years, which is quite handy.
- The final filter option is by jurisdiction, which again offers a “Select Multiple” link.
These filters can be combined, although each one is applied individually, for example to limit displayed cases to “positive in Ontario.” Each filter only shows options that are used: If no citing decisions are available from a particular court, or in a particular year, that court or year will not appear in the available options. Therefore, as you select and apply each filter, your results should never drop to zero.
You may have noted that there is no ability to filter by depth of treatment. While it is not a filter, it is possible to use the “Sort By” option to sort the results by “Annotation (negative first).” The “Annotation,” as mentioned above, is the coloured box underneath each citing case. This is how this case treats your case. The icon to the left of each citing case’s style of cause is its QuickCite Signal, that indicates how it in turn has been treated. It can be easy confuse the one for the other. One way to remember which is which is that we are looking for cases that are “underneath” our starting case, and therefore we should attend to the notation “underneath” each case to learn how it treats our case.
Noting Up on Canlii
Canlii permits access either from within a decision, or without first visiting the decision.
From within a decision, the note-up can be accessed via the “Treatment” tab. From here, limiting results to just caselaw requires a few more clicks, as first “Search for all citing documents” has to be selected, before the various tabs for caselaw, commentary, etc appear. Accessing the note-up via the “Treatment” tab in a decision does offer an “Unfavourable Mentions” subtab, which is iconographically indicated with a yellow jalapeno. However, I would not be inclined to entirely trust this rating system, as Canlii does not use human readers/editors to make this judgement, and relies on an automated system (that will “programmatically infer information from unstructured text“) to determine negative markers. It is probably fairly safe to assume that these mentions really are unfavourable, and reading the decisions will quickly reveal the accuracy of such a label, but I would be inclined to revert back to the adage that “absence of evidence is not evidence of absence,” so lack of yellow jalapeno “Unfavourable Mentions” should not be treated as definitive.
To go directly to the note-up, use the “Note-Up/Discussion” search from the Canlii homepage. While you can search by case name, it is far more precise, and usually more efficient to search by a citation. Conveniently, if you search by citation, Canlii will still show you the case name in a search box on the search results page right above a new “Note-Up/Discussion” field. This is handy if you have accidently mis-typed a citation, as you can see by the style of cause you aren’t in the right place, and can then click on that same style of cause to fix the citation and re-run the search. The default view here is “All Canlii” (ie includes commentary), but clicking on the “Cases” link easily limits the results to just cases that mention the decision being noted up.
Accessing the note-up directly, rather than via the decision, will display a “Discussion Intensity” meter next to each citing decision’s style of cause/citation. The depth of discussion of the cited case is represented by blue jalapeno emojis, and can range from one to five jalapenos (sometimes coupled with a yellow jalapeno as above).
Regardless of how we arrive, once we have limited citing references to caselaw, there are basic filters that can be applied to limit results, namely the classic filters of jurisdiction, courts and tribunals, and date. A very nice feature of the courts and tribunals option is that it is possible to select, for example, all labour tribunals (regardless of jurisdiction), as well as the conventional “all appeal courts” option. The date filter also allows very detailed manipulation, from a very wide selection of pre-built filters (ranging from “Last Week” to “Last Ten Years”), to a precise date, to between two dates. All of these filters can be combined with one another to pull out a very selective slice of citing decisions. In addition to the filters, the search results can be re-ordered from the default “Relevance” to other options such as date (newest to oldest or oldest to newest), court level, and interestingly, by most pages!
Which One?
Now that we have looked at how to note up a decision on three major databases, what filtering and re-sorting can be performed on the citing cases, and raised some issues that may impact how or when a database can be used, the question is often “well, which one should I use?”
The answer is… Every single one that you have access to.
While each database overlaps with its competitors on the majority of cases (especially cases decided in the last approximately twenty years), this overlap is rarely 100%, and the older the case being noted up, the more gaps between databases appear, particularly in regards to Canlii. While the discrepancies between databases almost never rise to the level of, for example, a missing Supreme Court of Canada case that discusses the case being noted up, it is not impossible that a key piece of the understanding and commentary puzzle may be found on one database, and not another.
Often, once you leave law school, your decision of which database to use will be significantly circumscribed by what is available to you. While Canlii is available for free to everyone, many firms do not subscribe to both Lexis+ and Westlaw Edge Canada. However, whatever you do have access to, it is worth noting up a decision in as many places as possible to ensure that nothing of significance has been missed.
