Chapter 6: Researching Canadian Legislation Online

6.1 Introduction to Online Canadian Legislative Research

Legislation is an umbrella term that includes both statutes and regulations.^[1] Both species of legislation are important in legal problem solving, although they take different paths to become law. In addition to legislation as enacted, your research may also require you to consider legislation that is still in progress towards enactment — bills. This chapter will deal with three aspects of legislative research online: the distinctions between statutes, regulations, and bills, and why you might search these; the process for researching all three of these resources; and the most effective online tools and techniques for doing so.

As suggested by the Wren matrix, an understanding of the legislative process – how the law is created and what the lawmaking structures are – is essential to effective legislative research. There are many excellent texts, government documents, and online resources that explain the legislative process clearly and in detail, including:

• The Queen’s University Law Library’s Legal Research Manual
• Federal: Audrey O’Brien and Marc Bosc’s House of Commons Procedure and Practice, 3rd ed (2017)
• Provincial: the relevant provincial legislative assembly website (e.g. the Legislative Assembly of Ontario)

In this chapter, we focus on the way that lawmaking structures and practices of publication and consolidation impact your work as an online researcher.

Legislative research may often happen as an afterthought; case law research can seem to take up more attention. But if there is legislation that governs your client’s issue, it may provide all the information you need in terms of what the law permits or requires in certain circumstances. As a result, legislation should typically be explored before you look in earnest for relevant case law. Case law can be useful in interpreting legislation, especially if the legislation is complex or vague, or for discovering how the courts have applied legislation in various circumstances. But at the first instance, you must identify and retrieve any legislation governing your issue.

The most common legislative research tasks are:

• Determine whether there is legislation (an act or regulation) that governs your legal issue (or identify a bill that will govern your issue or amend a relevant act).
• Locate or retrieve the official current consolidated version of an act or regulation.
• Note up a provision in an act or regulation.

There is an important takeaway implied in each of the above tasks: legislation is indeed a moving target. Changes to an act as enacted may stem from the legislative process, but also from ongoing interpretation by the courts. Thus, you cannot rely on legislation to always look the same as when it first receives royal assent, or even when you first retrieve it, because it is always susceptible to amendment or repeal by future legislation, and subject to interpretation by the courts. This is what makes noting up legislation and enhancing its currency date an essential research task that supports the other major legislative research tasks.

6.2 Understanding Lawmaking Structures and Processes

The following section highlights how online legislative research is impacted by the process of statute-lawmaking, using the framework provided by the Wren matrix.^[2]

6.2.1 Lawmaking Structures and Precursor Documents

The Federal and Ontario provincial lawmaking structures, both called “parliaments”, are similar in many ways. In both cases, elected members of parliament (Federal MPs) or members of provincial parliament (Provincial MPPs) initiate, draft and present or “table” new statutes in the form of bills – the precursor document to statutes – to the parliamentary body. Federally, there are two chambers – the senate and the House of Commons. Bills may be introduced in either chamber and must be approved by both in the final instance in order to become law. The Ontario provincial parliament is unicameral – one-chambered – and thus a bill is introduced only in one place. At both levels of government, bills proceed through roughly the same process: they are debated, sent to committee for study and revision, and debated and discussed further in “readings”. Eventually, if the bill passes the required number of readings – and in the Federal parliament, this must happen both in the House and in the Senate, with the bill in exactly the same form – then the bill will received royal assent and become law (an “act of parliament”).

While the process of lawmaking hasn’t changed much over time, both the provincial and federal legislative bodies now have a significant online presence. Their websites are the outlets for lawmaking structures at each level of government. The advent of governments’ online presence has made it easier for researchers to access official sources of law. This is especially true for newer and emerging legislation, but the scope of the databases contained on the government websites also allows researchers to cast back in time on government databases for almost two decades.^[3]

In Ontario, e-Laws is the repository for official provincial legislation. The corresponding site at the federal level is Justice Laws. These sites provide access to both consolidated law (i.e. law that incorporates amendments) and source law (i.e. law as it appeared when first enacted). These websites also provide access to regulations, point-in-time versions, and historical information about legislative provisions. Where once such information was only available by reference to numerous print volumes of legislative tables, it is now integrated into the user interface. This allows researchers to note the history and development of legislative provisions — from the time they are tabled as bills up to the most recent consolidated version — right on the face of the online text.

Both levels of government also maintain websites devoted to indexing and organizing the precursor documents for legislation: bills. Bills are legislation that is proposed but still moving through the legislative process. They also provide important ancillary information generated by the legislative process: Hansard (debates), committee reports, white papers, regulatory assessment impact statements — all of which contribute to our understanding of the purpose and intended effect of the law and the intent of the legislature. In Ontario, information about bills is found on the website of the Ontario Legislative Assembly; federally, the website is LEGISinfo.

In some respect, we can also think of source law – law as enacted –  as a precursor document, especially for legislation that is substantive and that will be the subject of many amendments over its lifetime. Having access to the act as it appeared when first enacted provides an important touchstone for some of the more sophisticated research tasks.

6.2.2 Publication, Coming into Force, and Consolidation

Even though an act may have received royal assent, signaling its transformation from bill to statute, it may not necessarily be in force. In order to have effect as law, the act as a whole or its provisions separately must come into force. You should note, however, that acts are published online once they receive royal assent whether or not they have come into force. Thus, researchers must pay careful attention to this additional detail as the act of publishing is not a clue as to whether the act or provision governing your client’s issue is in force and effect.

The concluding section of a statute normally deals with its coming into force — often in what is called a commencement provision. Certain sections may be brought into force in different ways and at different times, by a combination of the following methods:

• as soon as it receives royal assent;
• on a date specified in the act, either prospective or retrospective; or
• on a date to be named by proclamation (e.g. by the Governor in Council for federal legislation or by the Lieutenant Governor for Ontario legislation).

Regulations do not receive royal assent, so the date of registration or filing is often key to coming into force.

If the act is silent as to the method by which it comes into force, there is provincial and federal legislation^[4] that directs that the statute comes into force on the day it receives royal assent. There are also legislative provisions that stipulate what happens if an act is never declared in force. For example, under the federal Statutes Repeal Act,^[5] acts that have not been declared in force within 10 years of receiving royal assent are automatically repealed unless either House of Parliament adopts a resolution that prevents the repeal.

After acts are enacted and regulations are filed, neither of these sources is static. At any time, a new bill may be introduced that will, when it is itself enacted, add, change, or repeal sections of your target act. An amending act might amend just your target act, or it could start out as an omnibus bill that, once enacted, will amend many acts at the same time. Similarly, regulations may also be changed by amending regulations. The action of incorporating amendments into an existing act or regulation is called consolidation (also referred to as revision).

Perhaps the point of greatest divergence between past and present as legislation has come online is in publication. Print volumes of legislation, and the print publishing culture associated with legislation, persist. But consolidation — the essential task of keeping legislation current — is now accomplished exclusively in the online environment. Historically, this was a manual process requiring the periodic publication of a new set of print volumes (federally, the Revised Statutes of Canada (RSC); provincially, the Revised Statutes of Ontario (RSO)). These volumes were published infrequently — once every 10 to 15 years or so — and so accessing the most current version of the law required some effort. But in the online environment, consolidation happens on a near real-time basis.

That said, because online documents are easily updated, you might assume that consolidated legislation on a government’s website always reflects the current law, including amending legislation with all its complex coming into force possibilities. But this process, while much quicker online, is not instantaneous. It can take some time for those changes to be edited in. Thus, the “currency date” displayed for statutes and regulations on Justice Laws may be somewhat stale dated, sometimes even up to a few weeks in the past. This can mean that any amending acts enacted and in force in weeks since the last currency date, and any amendments made to your target section, will not yet appear in the act’s online text even though they carry the full force of the law.

This is an even greater concern if you are accessing legislation in one of the services, as opposed to the government website. The legal research service providers can update their copies of legislation only after the government has incorporated any changes into the consolidated legislation on the government website. By the time you retrieve a copy of legislation that is stored on Westlaw, Lexis, or CanLII you are looking at a version that is several steps down the currency chain (in addition to not being the official version). To address this, see Noting up Legislation.

6.2.3 Indexing and Storage of Legislation

Turning to the task of determining whether your legal issue has governing legislation, you should note that legislation is not stored in the same way in common-law Canada as in some other jurisdictions. That is, the government does not organize or provide access to legislation by topic.^[6] And, as you know, the way information is stored and organized impacts your approach to information seeking. In this case, subject-based searching becomes more difficult, although perhaps not impossible, depending on the service or access point you use. For example, the subscription services sometimes collect and store legislation links with topic-based materials. However, in general you will need to use a different technique to identify whether there is legislation governing your topic.

Your best first step is to use a reliable secondary source. You will see reference to relevant legislation in encyclopedia entries, in treatises (in a table of legislation), and in journal articles, as well as in non-traditional secondary sources online. Be sure to triangulate what you see and be prepared to synthesize from multiple sources in order to outline the complete regulatory scheme for a particular topic. Pay attention to the jurisdiction implicated in any commentary you find to ensure that the legislation you retrieve is relevant to the jurisdiction in which your issue has arisen.

Another key aspect of online legislative storage is that even consolidated legislation is tied to a citation system grounded in historical publication practices. As a result, an act’s source law and its related consolidated version may share the same citation. For instance, the Immigration and Refugee Protection Act, SC 2001, c 27 (known as IRPA) could refer to either the annual statute (source law) or the consolidated statute (as amended to reflect changes since it was originally enacted in 2001). This is important to understand in an age of Google searching because an online search engine may surface one or the other version of the legislation depending on how you search. It is up to you to understand what you are looking at once you have landed on the official government website, or you risk relying on outdated law.

Keep in mind too that the year shown as part of an act’s citation has no bearing on the currency of the version you are looking at. Acts enacted after the last print consolidation will keep their citation to the annual volume in which they first appeared. For example, the IRPA has been updated many times since 2001, but the consolidated statute’s citation still is “SC 2001” because it is tied to the print publication of the source law.

6.3 Specialized Tools, Techniques, and Access Points for Legislative Research

Once you have confirmed that there is legislation governing your issue, and have identified that legislation, you will then need to retrieve it and understand how it has been applied or interpreted vis-à-vis your client’s issue. There are specialized legislative research tool available for this purpose. Not all are available online – and in many cases, they are not easily stumbled upon online – but most can at least be identified using online resources. Here is a general overview of these resources and their features.

6.3.1 Legislative Databases

Of all the tools for online legislative research, government legislative databases are the best first access point in many cases. However, it is sometimes difficult to persuade researchers that this is the case. Westlaw, Lexis, and CanLII are frequently the default access point for any search in the law school context. But the free government legislative access points, such as e-Laws, or Justice Laws, should in fact be your first option, especially when you are retrieving legislation that you already know is relevant for your client’s purpose (this is as opposed to trying to identify whether relevant legislation exists. For that task, authoritative secondary sources such as treatises or encyclopedias are far more effective). Government sites offer the official version of legislation, the most up-to-date version (which is important, since legislation is a “moving target” as a result of amendment and consolidation), and they offer it to you free of charge.

That said, government databases tend to have less-than-stellar search functionality. The subscription services do offer more robust search interface, but what you retrieve is not the official version and it may also not be the most current version. CanLII might seem an attractive middle ground — a free online access point for legislation, with some slightly better search functionality — but it is still unofficial and there is still no organization of legislation by legal topic. 

As with any database, it is important to keep the database questions from Chapter 1 in mind. In the case of legislative databases, the most important question is likely to be the scope of the database, since both the subscription services and the government databases have definite limits on the date range of legislation they index and store. For legislation that is outside these limits, there are online workarounds. For example, HeinOnline^[7] maintains copies of statutes and regulations — both federal and provincial, annual and revised — going much farther back than the government or subscription databases. A similar collection for Ontario statutes with slightly less scope is available at the Osgoode Digital Commons.

6.3.2 Annotated Statutes

An annotated statute includes the full text of one or more statutes, in addition to commentary, history, and references to judicial consideration of the statute. This value-added content is provided in what is called an annotation. Case law that has commented on or interpreted the act is provided on a section-by-section basis. However, an annotation will only cite select case law, so it is not a suitable substitute for noting up an act with a citator tool.

Is an annotated statute a primary or secondary source? To the extent that an annotated statute provides commentary and points to relevant case law, it is perhaps better to think of it as a secondary source. It has few of the hallmarks of legislation itself. For example, an annotated version of an act is not an official version. Further, since annotations take time and editorial involvement to publish, the text of the statute itself may lag behind the official statute in incorporating amendments.

Annotated statutes are usually published in either book or looseleaf format. In the online environment, this means that they are only semi-visible because the full text is either hidden behind a paywall or only available in print. Annotated statutes can also be difficult to identify through an online search, because the title of the publication may not clearly identify itself as such a resource. Some titles will be obvious (e.g. The 2023 Annotated Family Law Act), but others may not even include the word annotated in the title (e.g. Ontario Family Law Practice includes an annotated Family Law Act). Some strategies you can use to identify them include:

• Use Google to identify the title of an annotated statute publication, then search your library catalogue or the online services for that title.
• Consult topic-specific resources listed under that area of law in Westlaw or Lexis.
• Check a list of subject resources compiled by a law library (sometimes called “LibGuides”, “Subject Guides”, or “Research Guides”).

6.3.3 Legislative Concordances

Some legal research requires you to compare substantively similar legislative provisions across jurisdictions (horizontal comparison), or a single provision across time within one jurisdiction (vertical comparison). Legislative concordances are designed for this purpose. For example, a concordance may help you find Alberta’s equivalent legislative provision to a section of Ontario’s Personal Property Security Act; or identify that section as it existed in the preceding statute.

As with annotated acts, concordances can be tricky to locate online, because they are often published as part of a larger publication. Check whether your law library maintains a list or other finding aids to help you locate concordances in their collection. If your law library does not have a list (or if you need to get your hands on one outside of your local collection), consult the Queen’s Law Library’s Legislative Concordances guide, a unique resource that provides a list of concordances organized by topic. This list will help you figure out what book, looseleaf, or other access point to use. Westlaw also provides a handful of concordances linked from their homepage.

Once you’ve identified a title that contains a concordance, locate that resource via your library catalogue or check Westlaw or Lexis to see if an online version is available.

6.3.4 Law Reform Commission Reports

Law reform commissions are independent bodies that provide authoritative advice to the government on modernizing and improving the law. In addition to detailed recommendations, commission reports can offer a useful and authoritative summary of the law on a specific topic. The Uniform Law Conference of Canada addresses the harmonization of both provincial and federal law from a bijural and bilingual perspective.

The Law Commission of Ontario is the current iteration of the reform body in Ontario, established in 2007. Reports from its historical counterpart (shut down in 1996) are available via the Osgoode Digital Commons’ Ontario Law Reform Commission archive.

6.3.5 Model Acts and Codes

Model acts and codes are a proposed model version of a statute — a normative statement of the law as legal experts think it should be, not necessarily as it is. They are of no force and effect unless they are enacted, which they sometimes are. Some models acts and codes are available in the reports of the law reform commissions discussed above. You can also identify and locate model acts and codes by searching library catalogues and conducting Google searches. See model codes at the National Research Council Model Codes Page, and model acts at the Uniform Law Conference of Canada.

6.4 Researching Statutes Online

The following section describes some basic techniques for navigating the major online legislative databases. Information regarding the scope of the databases discussed is current as of the date of the publication of this text.

Retrieving statutes online is usually simple once you have identified the legislation relevant to your legal problem. There are specialized access points for doing this. While you may be tempted to retrieve legislation via a Google search, keep in mind that you must take the time to review and critically assess your Google results to ensure that your result will lead you to the most current, consolidated, and official version of legislation. In this sense, accessing legislation from official sources may save you time.

The following sections provide a brief overview of considerations in retrieving statutes from the federal and Ontario government websites, as well as from CanLII, Lexis, and Westlaw.

6.4.1 Federal (Justice Laws)

Justice Laws includes source law, consolidated law, and regulations. As of the date of publication of this text, coverage extends back to 2001 for annual statutes (source law); 2003 for point-in-time versions of statutes (i.e. the consolidated version as it looked as of 2003); and 2006 for point-in-time versions of regulations. All consolidated acts and regulations on Justice Laws are official.^[8] The website is updated about every two weeks.

The simplest way to locate legislation on Justice Laws is to browse to the relevant legislative database: “Consolidated Acts” for consolidated statutes or “Annual Statutes” for statutes published as source law. Consolidated statutes can also be pulled by title via the main search bar on the homepage.

Note the currency date, which indicates the date to which point Justice Laws has incorporated amendments into the face of an act. This appears on the Justice Laws homepage but will also display at the top of each consolidated statute.

6.4.2 Ontario (e-Laws)

E-Laws provides official^[9] copies of Ontario legislation dating back to January 1, 2000. This includes source law, consolidated law, and regulations.

E-Laws is also most easily navigated via browsing. Select either “Consolidated law” or “Source law” depending on the type of statute you are interested in. Then, use the alphabetical list to locate your act.

Look for the e-Laws currency date, which will be linked from the top of any consolidated statute.

6.4.3 CanLII, Westlaw and Lexis

As noted above, the three legal research services can also be used for statute retrieval, with the caveat that they are not official copies of legislation and lag behind updates posted to the government websites.

CanLII provides both consolidated and annual statutes for all Canadian jurisdictions, but dates of coverage vary by jurisdiction.^[10] Federal consolidated statutes have continuous coverage from 2003, and annual statutes from 2001; Ontario consolidated statutes from 2004 and annual statutes from 2001.

Lexis provides consolidated statutes going back to 1988 federally and 1990 for Ontario, as well as a few jurisdictions’ annual statutes (including federal and Ontario going back to 1995 and 1996, respectively). In contrast, Westlaw does not contain any annual statute databases, only consolidated statutes.

In all three services, the simplest way to retrieve a statute — with the highest degree of caution as to retrieving the correct document — is to browse to the relevant legislation database and locate the statute on the alphabetical list. Another option is to enter the short title of your target act into a service’s search bar. But beware — you are not trying to conduct a full search across the entire platform for the title of an act, which will result in an unmanageable number of documents (including references in case law, secondary sources, etc.). Start typing the title and, instead of hitting the search button, click on the act from the drop-down menu once the service accurately identifies the statute that you are looking for.

6.5 Researching Regulations Online

The research tasks associated with statutes also apply to regulations. However, regulations are retrieved online using slightly different techniques.

Regulations are also known as delegated or “subordinate” legislation (a broad term given to rules, regulations, orders, bylaws, or proclamations made by an authority under the terms of an act of parliament or of a provincial legislature). Regulations do not exist in a vacuum. They are always made pursuant to an existing act, referred to as the enabling statute. Where enabling statutes deal more with general matters or policy principles for the legislative subject matter concerned, regulations provide highly specific details to how those general matters or policy objectives are to be achieved through the ministry responsible for enforcing the act in question. In the online legal research environment, this relationship is straightforward as regulations are co-located with their enabling statute. This means that the act’s landing page on e-Laws or Justice Laws will contain a list of the regulations associated with it.

Regulations have the force of law, and like the acts under which they are promulgated, are issued and changed on a regular basis. These rapid changes can make regulations a challenge to work with because updating becomes such an important component of the research process. It is essential to be as current as possible to avoid missing any important information (see Noting Up Regulations). Like statutes, regulations can have complex coming into force details. They may come into force on the date they were registered/filed^[11] or they may come into force retroactively or on a date in the future.

Although regulations do not endure the same sort of parliamentary process to be officially brought into existence, they follow a similar publication process and many of the technical details for understanding statutes remain relevant here. For instance, the distinction between source law and consolidated law is still important, being the difference between a regulation as it was initially filed and a regulation that has been updated to reflect amendments introduced since its initial filing.

The sections that follow provide a brief overview of how to retrieve regulations via the federal and Ontario government websites, as well as CanLII, Lexis, and Westlaw.

6.5.1 Federal (Justice Laws) and Ontario (e-Laws)

Justice Laws and e-Laws both provide regulations alongside their enabling statute, which means that your first step is navigating to your target act. In e-Laws, this looks like a tab at the top of an act called “Regulations under this Act”.

In Justice Laws, this looks like a list of “Regulations made under this Act”, at the bottom of the act’s table of contents page.

6.5.2 CanLII, Lexis, and Westlaw

The three services handle regulations slightly differently.

On CanLII, retrieval is similar to e-Laws, with regulations accessible via a “Regulations” tab on the act’s page. Conversely, Lexis and Westlaw both require you to specify that you are looking for regulations before you navigate to the enabling act. Once you have selected the relevant regulations database, only then can you select the enabling act from an alphabetical list, which will pull up the corresponding list of regulations for that act.

As with statutes, you can also retrieve a specific regulation by typing the title or citation into the main search bar of Westlaw, Lexis, or CanLII.

6.6 Researching Bills Online

A bill does not have the full force of the law until it receives royal assent and comes into force. However, a legal researcher must be aware of bills because they have the potential to change your client’s rights and obligations at any time. For example, you may learn that a bill has been introduced that will affect a major act in your practice area. As such, you will likely want to keep track of its progress through the legislature, as well as understand how related enactments or amendments will affect your client.

There are two main types of bills: public and private. In general, a public bill is concerned with matters of public policy or amends a public act, while a private bill relates to matters of a particular interest to a person or an organization. Government public bills are introduced by a cabinet member in the House of Commons. They reflect government public policy, and passage of these bills has government priority. Private members’ public bills are introduced by individual members of the legislature. They are introduced by backbenchers or members of the opposition parties and are intended to have effect on the public as a whole. However, because they do not represent the priorities of the government of the day, they rarely get beyond first reading.  A truly private bill can be introduced by any member of parliament. Its focus is narrow and limited: it affects just one individual, organization, charity, or institution; and confers upon that entity a particular privilege or exemption from the general law.

To efficiently retrieve bills online, you need a key piece of information: the bill number. Federally, bills are identified with a letter (according to which chamber introduced it, C for House of Commons or S for Senate) and an ordinal number indicating its place in the sequence of bills introduced during that legislative session. Bill numbering restarts at “1” in every parliamentary session, so there may be several bills indexed on the government website with the same bill number. To effectively search bills online, you must therefore have additional information, such as the name of the member introducing the bill, the date it was introduced (so as to identify the correct session of parliament), and some basic information about the subject matter. These various datapoints can often be drawn from non-traditional secondary sources like newspaper articles or media broadcasts.

Once a bill receives royal assent, it is assigned a new chapter number. This can make it somewhat complicated to figure out the corresponding bill number of your target statute. If you are unsure of the bill number/title that corresponds with your target act, you will have to check information that is published in the relevant Canada or Ontario Gazette.^[12] These publications provide the statute number alongside the bill number once a bill has received royal assent.

Once you have enough identifying information, researching the status and text of bills online using government resources is straightforward as long as you learn basic navigation of these sites. The following sections provide a brief description of this process for federal and Ontario bills.

6.6.1 Federal (LEGISinfo)

The full text of federal bills going back to 1994 are accessible through the Parliament of Canada’s LEGISinfo. Click on “Bills” to view by default all bills in the current session, their status, and all corresponding documents from their movement through the legislative process.

The “Bills” page provides a variety of filters that allow you to view a different parliamentary session, date range, bills with a specific status (e.g. received royal assent), and other factors. Once you’ve clicked into the text of a bill, you’ll be able to view different versions (first reading, third reading, and royal assent versions).

6.6.2 Ontario (Legislative Assembly)

The Legislative Assembly of Ontario’s Bills website includes bills going back to 1995. To retrieve a bill, navigate to the relevant legislative session and then locate the bill by number or title on the following list.

Ontario bills are published at first reading, after amendment by committee, and upon royal assent. Each bill will also include information about its status and corresponding documentation including debates.

6.7 Noting Up Legislation with Enhanced Currency

After enactment, acts are not static — they are subject to ongoing change. At any time, a new bill may be introduced that will, when it is itself enacted, add, change, or repeal sections of your target act. An amending act might amend just your target act, or it could start out as an omnibus bill that, once enacted, will amend many acts at the same time. This means that you cannot rely on what an act looks like at one point in time, because it is always susceptible to amendment or repeal by future acts. In other words, legislation is a moving target. This is what makes noting up legislation — and enhancing your currency date — an essential research skill.

Once an amending act is passed and comes into force, any changes to your target act are incorporated through the process known as consolidation (also referred to as revision). Since changes must be edited into the text of an act, there may be a delay between when changes are enacted and come into force, and when they appear in the official online version of the act. Consider the “currency date” displayed for statutes and regulations on Justice Laws. If the currency date listed for your target act is two weeks ago, that means any amending acts enacted and in force in the last two weeks (and any amendments made to your target section) will not yet appear in the act’s online text.

In addition to changes that stem from the legislative process, acts are also subject to ongoing interpretation by the courts. New decisions are handed down by the courts on a continuing basis; new or revised legislative interpretations can emerge at any time. Case law and legislation are intertwined. When a judge interprets a statute, that interpretation may become binding pursuant to the doctrine of stare decisis. Therefore, it is not sufficient to look only at the text of a statute. You must also investigate how courts have dealt with that piece of legislation. This process is often referred to as “noting up a statute” or looking for “statutes judicially considered”.

Because legislation is always subject to change, you need to complete a note up whenever you are referencing or relying on an act. Noting up is the way that you ensure you can rely on the version of the statute you are looking at, so that your advice to your client is accurate and reliable.

Noting up legislation online has two parts:

• Currency: Do I have the most up-to-date version of the law? Is it in force?
• Judicial Consideration: How have the courts dealt with our target legislation? How has it been interpreted or applied? Have the courts commented on its constitutionality?

The following sections review each of these parts in more detail.

6.7.1 Noting Up Legislation Part 1: Currency

In the first part of a note up, you ensure that your target act or provision is in force and that you are looking at the most current version. This process can be done most easily and accurately using the government websites for the relevant jurisdiction.

To find an act’s currency date, navigate to the current consolidated version of the act on the official government website. The posted currency date is found at the top of the page for the current version of the act or regulation and will give you the exact date of the last consolidation.

Typically, the currency date will be a few days to a few weeks in the past — but a bill that amends your act could receive royal assent and come into force at any time. Therefore, even a week’s gap between the posted currency date and the date of your research could pose a risk that your target act or provision has been amended, but the changes are not yet visible on the act as you see it. As a result, you may need to enhance your currency date. This is especially true if you know from current awareness resources that there are amendments pending for the act you are interested in.

To enhance your currency date, check that no amending provisions have been enacted and come into force during this gap. To do this, you need to explore the bills that have received royal assent during the time span between the posted currency date and the date of your research, by searching the website of the legislature in that jurisdiction.

This process will be slightly different depending on the jurisdiction of your research. Some government websites (like LEGISinfo) will allow you to search across all bills in the current session for mentions of your target acts. Others (like the Bills section of the Legislative Assembly of Ontario’s website) require that you manually check bills that have received royal assent since your currency date.

Once you’ve identified a bill, look for the name of your target act and read the text carefully to determine the amendment’s relevance to your research question. If it is relevant, check for coming into force information for the bill to determine whether or not the provision is currently in force.

If you follow these steps, you’ll have a good idea of whether any recent amendments have affected your target act, and you’ll know if any of those amendments affected the specific section you’re interested in.

6.7.2 Noting Up Legislation Part 2: Judicial treatment

In the second part, look for cases that have dealt with your target act or provision to understand how courts have interpreted or applied the statute, how they have defined certain terms, and whether they have commented on the constitutionality of a provision.

The relevant research tool for this process is a citator, which gives you a list of cases that have cited the section of the act that you are interested in. Note that since courts tend to deal with legislation one or two sections at a time in their analysis, it is much more efficient to look up the judicial treatment for single provision of an act rather than looking at treatment of the act as a whole.

This process can easily be accomplished online. Each of the three major services has a citator tool. Simply navigate to your target act and section, and then click on the link that allows you to access the citator tool. This usually appears as either a tab at the top of the document or, on CanLII, a bubble beside each section of legislation. Note that CanLII also has a dedicated search box on the landing page for noting up.

It is important to understand that no single citator is comprehensive, since no two legal databases contain the same judicial decisions. There may be substantial overlap in these sources, but each will include unique cases as well. It is a best practice to cross-check and compare note up results using whichever citator tools you have access to.

When you are viewing a legislative provision on Westlaw, you can also look at its “Judicial Consideration”. This feature — unique among the services — points you more specifically towards cases that interpret the section (instead of just referring to it in passing) and is meant to surface cases that are more valuable for statutory research. However, the scope of the tool is limited and, for now at least, does not include much historical coverage of cases, so do not ignore the standard citator tool available on Westlaw.

For some legislative provisions, there may be an overwhelming number of decisions citing your target provision. How might you know which ones are most important?

Narrow down your target to a single legislative provision if possible; seek judicial treatment only for that provision and aim to retrieve cases that discuss it, rather than the entire act in general.

Use filtering on all three services to refine your results lists by level of court/date and pay particular attention to higher-level court decisions.

Sort your results lists depending on what you think may be more relevant for your research problem — either higher levels of court or more recent decisions.

Sort your results list by treatment indicator where possible. In particular, be watchful for treatment that indicates your provision has been struck down or declared unconstitutional.

One note of caution on treatment indicators: you’ll notice that Lexis and Westlaw provide some type of indication as to the nature of the relationship between a citing case and the target legislative provision. For instance, Lexis notes when a case has provided “cautionary”, “positive”, or “neutral” treatment, including a note of “constitutionality discussed”. While these indicators can be helpful ways of narrowing your citator list, research has shown that the citator tools — and the legal editors or AI tools that populate them — are not always accurate in assigning these designations.^[13] They should not be relied upon without reading the case fully in order to more accurately assess the relationship between the case and the legislative provision.

6.7.3 Noting Up Regulations

For regulations, whether provincial or federal, the steps are roughly the same. Because regulations change so often, you should update your regulations to be as current as possible. To check for any regulations that have amended your target regulation since the currency date, you can check the Gazette online, either provincially or federally. Look for Gazette issues published between the last currency date shown on the government website and the date you are researching. Federal regulations are published in the Canada Gazette, Part II, while Ontario regulations appear in the weekly Ontario Gazette.

The second part of the note up (judicial treatment) is identical to the process outlined above for statutes, and can be done using Westlaw, Lexis, or CanLII.

6.8 Maintaining Current Awareness: Monitoring legislation

Monitoring legislation is essential to remain apprised of key developments in an area of law. By doing so, you ensure that you maintain current awareness and have advance notice of upcoming changes that may affect your clients.

Monitoring legislation may be as simple as leveraging non-traditional secondary sources. One effective strategy is to regularly review or subscribe to various freely available news outlets including mainstream media (newspaper, television, radio) outlets. These are great resources for notice of upcoming legislative changes (bills that are in progress) or acts recently enacted (those that have received royal assent), though mainstream news will often only report on major or significant legislative changes. For a more specialized view, law firm websites and newsletters are more useful for their more targeted legal perspective on new legislation or amendments. Current awareness for these non-traditional secondary sources is discussed in Chapter 5.

For more detailed monitoring, there are several legislative tracking services that will allow you to track bills of all types as they progress through the stages of the legislative process to become law. The federal legislature’s website (LEGISinfo) allows you to set up an RSS feed^[14] to alert you whenever new bills are introduced that affect your target act. Simply look for an RSS option when you have conducted a search on their website. While this is useful for federal legislation, however, some provincial jurisdictions in Canada (including Ontario) do not provide a direct alert option online. For these jurisdictions, there are a handful of (paid) subscription tools, including Canadian Legislative Pulse (a Lexis product) and Codify. In the absence of a subscription to these tools, you may have to rely on monitoring the non-traditional secondary sources listed in the chapter above.

Lastly, you can set up citator alerts to track the judicial consideration of a target act — either a specific section, or sometimes (depending on the tool) the entire act. Find this alert option from within the note up section of an act on CanLII, Westlaw, or Lexis.