Chapter 7: Researching Canadian Case Law Online

7.1 Introduction to Online Canadian Case Law Research

In a common law jurisdiction like Canada, the law on a given subject is found not only in statutes and regulations but also in the judicial decisions of courts and administrative tribunals. These decisions are referred to collectively as “case law”. As a primary source of law, case law will usually have some role to play in your problem-solving strategy, even when your topic is heavily regulated and the governing legislation is clear. Finding cases that are useful for your analysis, however — that is, cases that are authoritative and on point — can be challenging and occasionally more time consuming than locating relevant statutory provisions. This is especially true in the online environment where there is an extremely large volume of case law available.

In a print research environment, there was at least one significant “assist” to be had in researching case law: case law reporters. Case law reporters are an intermediated source: the editorial team of the reporter chooses cases selectively from those decided since the time of the last issue. Only certain cases are selected for publication, based on the significance of the decision: an emerging trend in the law, novel subject matter, or an unresolved point of law. Cases not chosen for inclusion in the print reporter — referred to as “unreported” or “unpublished” — could still be accessed by request from the respective court, but unpublished cases were not considered as significant as those that were published in reporters. Thus, using a reporter and its index forced an initial restriction of the number of cases to only the most significant and ostensibly authoritative cases on the topic.^[1]

The online environment has challenged the prominence of case law reporters in the legal research process. Reporters continue to operate and select cases for publication, with many now publishing online rather than in print. But courts also publish decisions on their own websites, and the legal research services index and ingest case law with little to no selection process. Most decided cases will make it into a database in at least one service, regardless of their publication status, significance or subject matter. Thus the range of cases conveniently available to the researcher is now much broader.

As noted, however, the volume of results returned by such searches can be very large indeed. To manage this expansive set of options, effective researchers use a variety of online search tools and techniques. Efficient case law research begins not only with an understanding of how case law is generated, indexed, stored, and retrieved, but also with an awareness of the key tools for case law research — what they’re called, where you find them, and how they work. Finally, self-awareness and situational awareness will help the researcher choose the approach — both tool and technique — that is most likely to result in a list of cases that is manageable in size and consistently relevant to the issue at hand.

7.1.1 Understanding Lawmaking Structures and Processes

As with legislation, your ability to master techniques for effective online case law research is enhanced if you understand the structure and process of the courts as lawmaking institutions and how this primary source is generated, published, indexed, stored, and accessed online. In this section, we review these aspects of Canadian case law using the Wren matrix questions introduced in Chapter 1. Note that when we refer here to court decisions, we are also referring to decisions of tribunals and other decision-making bodies that render their decisions in textual format and which are indexed online in a way that allows a user to search and retrieve those decisions.

7.1.2 Lawmaking Structures and Precursor Documents

The Canadian court system has evolved over time: courts have split based on function, or they amalgamate or shift in subject matter responsibility. Court names also change from time to time, not only as a result of change in the ruling sovereign (e.g. King’s Bench instead of Queen’s Bench) but also as a result of the changes suggested above. For instance, the Exchequer Court of Canada was succeeded in 1971 by the Federal Court of Canada, which in turn was split into the Federal Court and Federal Court of Appeal in 2003. As a researcher, you may need to retrieve decisions from a decision-making body which no longer exists or whose name has changed since the time the decision was rendered. This can pose issues if you use keywords instead of filters as a way of searching online for decisions from a particular decision-maker. There are many useful resources that can help you understand the current structure of the court system which in turn can help you filter your results effectively.^[2]

Precursor documents to court decisions include pleadings, facta, and other court documents. In the Canadian context, these have not shifted as seamlessly to the online environment as court decisions have. Some services — Westlaw and Lexis — provide access to a limited number of court documents, which are usually linked from the full text view of a decision. But due to the massive number of documents produced by the courts, the services are usually selective in which courts or practice areas are prioritized for these databases. Access to these resources also comes at a steep cost in a subscription service. Unlike the United States, Canada does not currently have a centralized, public system for accessing court documents online. However, it is possible to request such documents directly from the court, as court filings and exhibits are a matter of public record in most cases.

Also relevant as precursor documents are cases that were relied on as precedent to your target decision. These can be identified using the table of cases found at the top of the decision (sometimes also called a table of authorities, or simply “cases cited”). These lists are often added by legal editors, rather than by the courts themselves, so if you are accessing a court decision online directly from the court’s website, you may not find a consolidated list of cases cited at the top of the decision. This is one good reason to access a case from one of the services, which will not only provide such a list but also link the case names to the full text of those decisions (assuming they are contained within that service’s database).

7.1.3 Publication and Indexing of Decisions: The shift from print to online

As noted above, there has been a substantial shift in the way that case law is published. Whereas traditionally, court decisions were published in print, today most courts have an online presence where they provide access to decisions.

Some courts adapted early on to the online environment, appreciating the fact that a website provided a convenient and reliable platform on which to publish decisions, whether or not those decisions would also be indexed and made accessible elsewhere. However, court websites tend not to have robust search interfaces. As such, they can be a fine access point if you merely wanted to retrieve a case that you already know about, but are less helpful if you need to locate cases on a particular legal issue. Court websites often do not add anything to the decision as rendered, such as a summary of the decision, a list of keywords, or a separate list of cases cited. These value-added features are one of the major benefits of locating a decision on one of the services instead.

However, it is important to note a significant limitation: You might conclude that in the online environment, every decision of any value is available on all three services. This is not so. Although the services are less selective than case law reporters, sometimes a case will simply not be picked up and indexed on one of the services but is available on another. This is not simply an issue of algorithm selection or point of view, as demonstrated in the Nevelow Mart study.^[3] Rather, it has more to do with the case simply not being ingested into a particular database. To avoid missing an important case, there are several things you can do: remain flexible in your search strategy by using a variety of techniques; consider building in time for a search on a second service; and ensure that you are cultivating current awareness in your area of law by setting up appropriate alerts both for secondary and primary sources.

7.2 Key Tools for Case Law Research

Three tools form the backbone of any solid case law research strategy: a case digest database, a case citator and a full-text case law database. This is as true in the online environment as it was in the print environment: all three existed in print and are as essential to legal research as they ever were. However, the ease of use online, including how quickly the tools can be accessed, how quickly you can navigate from one to the others, and what information is readily available both in text and in graphic form, is substantially greater than in print. Online, these tools are integrated seamlessly into the full-text case view on all three services and, as a result, can be deployed quickly and flexibly in your search strategy. Below, we describe each and offer some observations about access points and utility in combination with certain online search techniques.

While these three tools are customized for case law research, one of the most effective case law research tools you have is in fact a secondary source. Assuming your source is authoritative, a good secondary source that mentions a leading case on your issue is a significant time saver. In identifying and referencing that case, the author of that source has done the leg work for you. If the author is known as someone experienced in that area of law, you can rely on their expertise and move your research forward.

7.2.1 Case Digest Databases

A case digest is not a summary of a whole case, but rather a short summary of a single decided issue in a case. Since some cases decide several or even many legal issues, one decided case may give rise to more than one digest. Digests are not as detailed as a full headnote case summary, which you can find at the top of many full–text case views online. But they provide a basis for classifying cases based on the legal issues they address, which can make it easier to find cases on point.^[4]

A case digest database, as the name suggests, is a database that contains only case digests, which are classified and organized by legal topic. Two of the three services — Westlaw and Lexis — have digest databases. Westlaw’s digest database is called the Canadian Abridgment Digests, and Lexis’ is called the Canada Digest. Westlaw’s coverage goes back farther (cases reported since 1803), but only Lexis covers Quebec civil law cases. CanLII does not, as of yet, have a case digest database.

In a digest database, areas of law are set out hierarchically. The topmost level uses a broad description of an area of law — for example, contracts or environmental law. Lower-level subtopics and sub-subtopics break the broad body of law into more specific doctrines, concepts, and legal issues within that top-level area. Individual digests are classified or assigned to these more detailed levels. Indeed, digest classification systems are extremely detailed at the lower levels, which are built on distinct legal issues that arise in a general body of law. All digests related to a single legal issue are assigned to the same classification based on their conceptual “fit” to that classification. Thus, all digests in one classification are conceptually related to each other, whether or not they share any keywords.

There are several aspects of digest databases that warrant mention before we get into how to effectively search them later in this chapter. First, the digest classification systems are not consistent between Westlaw and Lexis. By scanning the table of contents of each digest database you’ll notice that the legal topics or areas of law that form the topmost level of the classification system do not align. In some cases, a classification for an area of law exists in one service, but not in the other. Even if a top-level classification exists in both database and is described using the same or very similar words, there may still be substantial divergence in classification labels in the lower-level classifications, or the information may be organized along different conceptual lines.

Second, between Westlaw and Lexis, the very same case may have a different number of digests associated with it and the editors responsible for assigning decided issues to digest classifications may not agree on how the same issue might be classified. This will affect the group of other digests that this case is collected with. Lexis will not include a digest for a given case/issue at all unless it considers that case to be a “leading case”.

Finally, as with secondary sources like the CED that also use a classification system, you may find that a digest database doesn’t do a very good job of capturing emerging areas of law. Digest databases are built on a set of assumptions about the scope of the law — a particular view of what the law is. Therefore, the classification system and controlled vocabulary that provides their organizational structure restricts the way that cases and decided issues can be characterized. In this way, not only are digest classification systems slow to acknowledge emerging areas of law, they may also not even “see” some legal topics and thus entrench the “dominant” view of the issues that the law concerns itself with.^[5]

7.2.2 Citators

A case citator is a slightly different tool. When you use a citator, you are researching from a position where you already have a case that you consider relevant for your research purposes — your “target case”. A citator is the primary tool used in noting up case law. Its utility is derived at least in part from the doctrine of stare decisis: when a common law court decides a case, it will look to prior decided cases, or precedent, as authorities that inform its reasoning. The court will usually refer to or “cite” these cases in its decision. Subsequent cases — “citing cases” — may choose to adhere to the reasoning in your target case, perhaps because it is binding or perhaps simply because it is cogent. Or they may choose instead to distinguish the reasoning in your target case from the citing case.

A citator can help you assess the strength of your target case by identifying cases that have cited it and relied on its reasoning, and the depth of that reliance.^[6] The tool can also help you find more cases decided on the same legal issue. The presumption here is that subsequent courts will cite your target case if that court is deciding the same legal issue as that presented in your target case. For a discussion of this particular function, see the One Good Case strategy.

In an online environment, the citator tools are constantly updated with new cases. This means you are likely to have a more complete list of citing cases and resources than if you used the print equivalent. All three services have citator tools. On Westlaw the citator is called KeyCite; on Lexis, it is called QuickCITE; and on CanLII, it is accessed through the “Note up/Discussion” field on the landing page.

Does it matter which one you use? In other words, are the three citators consistent as to the citing cases they reveal based on your target case? This is an important question in online case law research. As each service contains a slightly different body of case law, so too are their respective citators slightly different in coverage. If a case does not exist in Lexis’ case law databases, it will not then be picked up by Lexis’ citator QuickCITE. We will discuss this issue in more depth when we come to Noting Up Case Law: Considerations for noting up online.

7.2.3 Full-text Case Law Databases

A full-text case law database is probably the most familiar type of online case law research tool. It is designed to allow you to search and retrieve the full text of any decision indexed in that database.

Full-text databases have existed since the courts first began to create their own websites and publish their decisions online. All three services contain dozens of full-text case law databases, indexing thousands of decisions over a long period of time alongside important value-added features, such as explanatory or summary headnotes, relevant keywords, and cross-links to other research tools and related secondary sources. Researchers can retrieve known cases by searching by citation or style of cause and can find unknown cases on a particular topic using keyword searching in combination with filtering. Records retrieved from full-text databases allow a researcher to read a case in its entirety.

Many early-stage researchers consistently default to a keyword search technique — whether using natural language or Boolean search — over a full-text case law database as their first approach in research. In the online environment, the ease of beginning your search in this manner is tempting, since it can make you feel as if you are advancing quickly through your searches. However, there are significant pitfalls here.

Online keyword searching can be hazardous if you haven’t committed sufficient time to generating a robust population of keywords and synonyms,^[7] or if your Boolean technique is still developing. An ill-formed keyword search can return hundreds of irrelevant results while at the same time missing cases that are key to your research issue. This is true even if the algorithm’s sense of what is “relevant” is reliable and appropriate filters are applied. To make matters worse, keyword searching attracts a very high chargeback or transactional fee in the subscription services. To avoid wasting time reviewing a mountain of potentially irrelevant cases, we recommend that researchers take a judicious pause before beginning online case law research with a keyword search over a full-text database. Consider the points in the discussion regarding “Designing your case law research strategy”.

That said, there are, in fact, a limited number of situations in which a keyword search with Boolean connectors in a full-text case law database could be a good first approach in research. These include situations where you have an extremely unique fact scenario and are looking for cases with similar facts; where your topic is emerging and may not yet be discussed in traditional secondary sources; or where you are looking for a very recently decided case. However, in these scenarios you must still be sure you are using the right search syntax, using appropriate keywords and synonyms, and making good use of filters to ensure your search is as efficient as possible.

7.2.4 Secondary Sources: The forgotten case law research tool

Secondary sources are a key tool in legal research. In case law research, they can shift you from a situation where you have no leads on a relevant case for your topic area, to a situation in which you have at least one good case which you can then parlay into more good cases using the technique set out below and the tools discussed above.

The usual secondary sources are in play here: treatises, journal articles, and especially legal encyclopedias, since they often include hyperlinks to relevant cases discussed in the articles. For emerging areas of law, or topics that are un- or underdeveloped, you may need to consult non-traditional secondary sources (with appropriate critical assessment). People are also a particularly effective secondary source for case law research, since most experienced practitioners will have at least three or four key cases at the tip of their tongue that they can share with you. Starting your research with a good secondary source can make a huge difference in giving you a useful starting point and early advantage in the otherwise unwieldy online world of case law research.

7.3 Designing Your Case Law Research Strategy: The circumstantial dyad and the One Good Case technique

An online case law research strategy is designed to negate the temptations associated with the online environment and to mitigate their impact on your research progress. Your goal in designing a strategy is to minimize expense of time and money (both your own billable time as well as any chargebacks to the client) and maximize efficiency and effectiveness: a modest number of results returned with a high percentage of relevant results. The time you spend designing such a strategy can save you much more time in the long run. It will help you remain focused in your searches and avoid retrieving too many results, too many irrelevant results, or tumbling down a rabbit hole and losing sight of your goal.

To build a good online case law research strategy, consider the contextual factors surrounding your research process. These may include cost and time limits imposed on your research, technical concerns such as the four database questions (Is it correct, credible, comprehensive, and cost effective?) and questions dealing with your own level of development as a researcher. Am I confident searching using techniques more sophisticated than just a natural language search? Do I understand how the key tools for case law research — the case digest database, the full-text case law database and the citator tool — work together? Do I have a firm grasp of the set of Boolean connectors for this service and how they are deployed? Do I have a sense of which filters (court, jurisdiction, date range, etc.) are most appropriate for this problem?

In designing your online case law research strategy, think of the process as beginning in one of two ways (a circumstantial dyad): You will either start your research from a position where you have no leads and no cases at all, or you will have at least one case that is relevant to your topic and you want to see more. Your starting position guides you in choosing the right tools and techniques for your research. Before you begin your research, assess whether you have any leads whatsoever — a mention of a leading case in a textbook or treatise, a case mentioned in your coursework, something a colleague said, a case you read about in the newspaper or in a legal blog — or whether you are truly starting from nothing. Then, choose your approach to research accordingly.

7.3.1 The First Circumstance: You are starting with no leads

If you are starting with no leads, there are at least two effective alternatives to keyword searching in a full-text database: a search in a relevant secondary source or a subject-based search in a digest database. Once you have used one of these techniques to identify a relevant case, you can then shift to the other side of the circumstantial dyad and employ the One Good Case technique.

7.3.1.1 Secondary Sources

Reliable and authoritative secondary sources on your topic will point you to relevant primary sources, like case law, without you having to do any further searches. In this case, you are leveraging the “point to” function of secondary sources. This is both time- and cost-efficient; if the source author is an acknowledged expert, you can rely on that expertise rather than spending time searching for that first case yourself.

The kind of secondary source you use — either traditional or non-traditional — will depend upon the nature of the legal issue you are researching. Secondary sources can include people in your practice area; traditional types such as legal encyclopedias, treatises, and journal articles; or, if your problem is novel or involves intersecting areas of law, non-traditional sources like legal blogs, podcasts, newsletters, newspapers, firm websites, or your own firm’s knowledge management database. See Chapter 4 and Chapter 5 for more information on locating secondary sources.

7.3.1.2 Subject-based Searching in a Digest Database

Concurrently with the use of secondary sources, and assuming your topic is not entirely novel, you should try to identify your topic in a case digest database. This is an iterative approach — your searches in one can be informed by your results in the other — that is both efficient and convenient in an online research context. When you identify a case that looks promising, then pull that case up in full-text view and read the entire decision.

To search a digest database effectively, recall that they are organized by topic in order to permit subject-based searching. Cases decided on the same legal issue are stored together in the database under a single classification. To find a relevant classification — and thus find a group of cases all on your topic of interest — browse the table of contents in a case digest database and zero in on a topical classification or sub-classification of interest. You can then skim the digests of those cases to look for a decision that might be relevant for your analysis. Stay mentally flexible if you use this technique. You may not be able to predict what words the database classifiers have used to describe your target legal issue. This means that synonyms and alternate ways of describing the issue are important to keep in mind as you browse.

For greater precision, or if browsing doesn’t reveal a relevant classification, you can also do a keyword search within your initial results to further refine the list of case digests returned. There may in fact be digests related to your topic, but they may be contained in a classification that isn’t obvious or intuitive. First, try to narrow down to a single classification in which you will run your keyword search. You can, however, search over the entirety of the database if you sense that the top-level classification is part of your problem in not retrieving any results.

A few notes on keywords here: Be careful and selective when choosing your keywords for searching a digest database. Consider what constitutes a record in a digest database: the digest is a short summary of a single decided issue in the case. In other words, any keyword search you perform will not be performed over the full text of a case. If you couldn’t find a particular top-level area of law when browsing, you may have to dig deeper into your keyword population to find unique terms that will return results. The word you use to describe the legal issue may not be the word the legal editor chose, so synonyms and Boolean connectors may be essential. Try choosing slightly broader keywords to begin — perhaps only primary and secondary keywords — and then move on to terms associated with specific facts of your client’s issue. Keep in mind, too, the other limitations of case digest classification systems — including the fact that they do not represent well those topical areas that are emerging or underdeveloped — as described above. To use this technique effectively in the case of an emerging area of law, you may need to search more than one digest classification or think creatively about how your topic could be described.

7.3.1.3 Intelligent Keyword Searching

Ironically, the last strategy a researcher should use when starting with no leads is often their default approach: keyword searching over a full-text database. In rare situations, it can be a rational first choice: if you have an unusual fact pattern for example, or very distinct and unique keywords that are almost sure to be used in any discourse regarding the legal issue involved. However, in the absence of these factors, keyword searching can be fraught. Eventually you will become more expert in all aspects of information seeking, and so may find that your ability to retrieve relevant results from keyword searches vastly improves over time. In the meantime, however, try using one of the approaches described above, prior to relying on the keyword search.

But even where you have exhausted options for subject-based searching at the first instance, there is one other subject-based tool you have at your disposal when resorting to keyword searches: subject filters. Like digest classifications, a subject filter allows you to select a topic or sub-topic of case law. However, they allow you to do so while in the midst of your keyword search. The filter is applied in-process, across the full text of your results in a case law database, instead of just at the beginning of a search such as in a digest database. All the services have some degree of subject filtering as an option. In Westlaw, you can filter by (high-level) subject area or (more granular) abridgment classification (that is, the subject classification assigned to the full text of the case, rather than searching the digest database itself). In Lexis, there is a legal topics filter with multiple degrees of sub-level. Even CanLII has a basic subject filter option, though it is generated by artificial intelligence and can only identify a high-level category associated with each case. Look for a subject filter option when viewing your results list to leverage this functionality.

7.3.2 The Second Circumstance: You have a good lead

In the second situation, you have a lead on a good case — one that is authoritative and on point in terms of the legal issue decided. Perhaps you learned about it in a course, and you recall that it is the leading case on a particular legal issue. Or perhaps it was mentioned by a colleague or your principal lawyer, or you recall reading about it in a secondary source. No matter how you became aware of it, you can use this good case as a basis for retrieving additional similar cases, that is, cases decided on the same legal issue.

The One Good Case method for case law research will help you do this. It has two approaches, each of which is named for the case law research tool it relies on: the digest approach or the citator approach. As with most aspects of case law research, the One Good Case method can be used with print resources. However, the interconnectedness of the three main case law research tools — the digest database, citator, and full-text case law databases — means that you can move effortlessly between these tools with greater speed and efficiency online.

Many researchers think it is important to use a recent case as their One Good Case. This is not true. Some of the most significant leading cases were decided years or even decades ago. This can be true in any area of law for any issue. Before you discard a case as being “too old” to be your One Good Case, think carefully. If it is mentioned as a leading case, the passage of time won’t change that unless the case has been overturned on appeal or superseded by the reasoning in a newer case. Either a solid note up or a secondary source are likely to reveal that to you.

The quality of your results when using the One Good Case method will depend greatly on the quality and relevance of the case you begin with. Thus, it makes sense to spend some time at the front end of this process, trying to locate the best, most relevant, most authoritative case possible, before proceeding with one (or both) of the approaches described below.

7.3.2.1 The Digest Approach

The digest approach takes advantage of a digest database’s classification system. Recall that CanLII does not yet have a digest database, so this approach won’t work for you on that service. If you find the digest classification for the relevant issues decided in your One Good Case, then you will find more cases decided on the same issue, as they will be digested in the same classification.

Begin from the full-text view of your One Good Case in either Lexis or Westlaw and find your case’s digest classifications. In both services, these classifications will be linked directly to the digest database for that classification. On Westlaw, a case’s Canadian Abridgment classifications can currently be found both as links on the case view page or at the top of the full-text case view. In Lexis, look for the link to “case summaries” beside the text of the case. Note that in Lexis, this technique works best if the case you are starting with is considered a leading case in your topic area. This is because Lexis only creates digests and assigns them to classifications for those cases it deems to be significant or “leading” in the topic area.

7.3.2.2 The Citator Approach

In case law research, the citator approach is nothing more than the use of citing references or chaining in the context of case law. You use the citator tool to identify cases that have cited your One Good Case. You are looking for cases that have followed or substantively discussed your One Good Case. Note that such cases are easier to find if you are using a citator that offers well-developed treatment indicators. These additional citing cases are useful to you based on the assumption that at least some of those cases deal with the same legal issue as your One Good Case.

It is worth noting that you can use this approach in both “directions”. Not only can you look at the cases citing your One Good Case — by using the citator — but you can also consider cases cited by your One Good Case. The assumption is the same: cases cited by your One Good Case may be useful to you since the court in your One Good Case cited them in its decision — and thus they are likely to have been decided on the same or similar legal issues. To find these cases, look near the top of your One Good Case for a list of “cases cited” or “table of authorities” where the legal editors or the court will list the cases relied on in that decision.

This technique may lead you to a leading case in your area of law, or even to a more authoritative case than your One Good Case. In any event, if you identify another good case based on this technique, you should still scan the full text of your One Good Case to see how that additional case is treated in the body of your target case decision.

7.4 Noting Up Case Law

7.4.1 Why note up case law?

Noting up (sometimes referred to as “updating”) is a mandatory step in legal research, but it is not a technique for finding case law; rather, it is a way of validating what you have already found. In an online environment, noting up is easily accomplished and yields results that are often updated in near real time. In a common-law jurisdiction like Canada, noting up considers two factors that could impact the validity and therefore the utility of a case you would like to rely on for problem solving. These two steps are always necessary for a note up, and both steps use the citator tool. The two steps remain the same whether done in print or online.

The first step of the note up involves verifying the complete history of the case. Lower court or tribunal decisions are susceptible to being overturned or reversed on appeal to higher-level courts. Researchers must determine whether this is true of their target case so as to confirm that the legal principles articulated in the target case are still “good law” and have not been overruled by a higher court.

In the second step of a note up, researchers consider the subsequent judicial treatment of their target case. The goal is to determine how widely and in what way the reasoning in their target case has been considered — and followed — by other courts. Although the legal doctrine of stare decisis governs the development of the common law, courts will nevertheless sometimes attempt to avoid the reasoning in a prior decision that would otherwise be binding on that court.

Provided that your target case has been indexed in one of the three services, noting up online is convenient, easy, and can be done on all three services using the citator tools. All three have also integrated value-added features into the citator tools to offer researchers additional information on the history and subsequent judicial treatment of their target case. This is not to say, however, that your note up results from one service to the next will always be the same. This is discussed in greater detail below, where you’ll find a description and brief discussion of each step, together with some comments about how the process is impacted by the online environment.

7.4.2 Noting Up Step 1: Case history

The history of your target case or decision may be complex. Sometimes, you need to consider more than merely “was my case appealed?” when viewing this history. For example, if your target case is an appeal from a lower court, was it subsequently appealed to a higher court? Was the lower court’s decision affirmed? reversed? varied? If the decision is from the Supreme Court of Canada, what were the outcomes in the lower court decisions? Is there a dissenting opinion? Have there been other Supreme Court decisions on the same topic? (Recall that the SCC is not bound by its own prior decisions.) This information is easily accessible using any of the three citator tools.

For this step, begin by accessing the full text of your target case and look for “History”. All three citator tools can provide you with this information, though some offer more information or more intuitive information than others. Westlaw’s KeyCite, for example, offers a graphical representation of a case’s history that visually represents the interrelated nature of the individual decisions. Lexis’ QuickCITE offers no graphical representation, but does include signals (“Affirmed”, “Reversing”, etc.) to indicate the nature of the relationship. CanLII’s citator is the most barebones of the three, providing only a case list with the citation, date, and court level, which means that you must do the manual work of checking whether the higher court has reversed or varied your target case.

When you consider a case’s history, it’s important not to confuse or conflate the case’s history with its recency. No matter how old a case is, if it has not been overturned on appeal, then it may be good law — and in fact, an older case may persist as a leading case for certain legal principles for decades or longer. This doesn’t mean that the law has not developed since the leading case was decided, and you may need to trace the development of a legal principle using citing references over time. But do not discard a case merely because it is not a recent decision. If it has not been overturned on appeal, you may still consider it, but should pay close attention to its judicial treatment (below).

7.4.3 Noting Up Step 2: Judicial Consideration

In the second step of a note up, you investigate the subsequent judicial treatment of your target case. In other words, you are asking: How have other courts treated your target decision? Have those courts followed the reasoning in your target case? distinguished it? merely considered it? or even not followed it? Each service will provide you with a list of cases that will answer these questions.

The principle of stare decisis is important here. In a common law jurisdiction, cases decided on the same law and based on similar facts should have similar outcomes. However, courts may not entirely agree with the legal reasoning found in an earlier case on point. A decision not to follow or to distinguish the earlier case is traditionally justified by the assertion that facts of the two cases are different enough to require a different application of the law.

Searching for cases that have cited your target case will yield references to similar cases as well as to cases that provide some understanding of how the law relevant in your target case is developing. You may even find that the argument you proposed to make based on the reasoning in your target case has been weakened by recent jurisprudence in which your target case is not relied upon in the reasoning. The citators will characterize the subsequent judicial treatment of your target case using “treatment indicators,” which are supposed to provide a concise alert as to the quality or depth of treatment received by your target case. Treatment indicators help you understand the strength of your target case as a precedent, whether subsequent courts have uniformly accepted or rejected the reasoning in your target case, or whether there was mixed treatment.

Treatment indicators vary from service to service, not only in terms of the word used by that service to identify a form of treatment but also in the symbols or icons that represent those words. Treatment indicators include words such as applied, approved, considered, mentioned, disapproved, discussed, distinguished, explained, followed, referred to, not followed, or overruled. A single case may receive different treatment indicators depending on the service and the citator — in other words, there is sometimes little similarity in the way the services characterize the subsequent judicial treatment of a case (see below). While treatment indicators are a useful guide, there is no substitute for reading the case yourself to fully understand the manner and extent to which a case was considered in a subsequent decision.

7.4.4 Considerations for Noting Up Online

Can an accurate note up be accomplished using only one citator tool on one service? As far as case history is concerned, the answer is yes. However, regarding subsequent judicial treatment, there can be substantial variation between services both in the citing cases identified, as well as in the nature and accuracy of the treatment indicators. Legal editors will make different choices on both dimensions. Some citators will designate a case as “citing” your target case, even if it makes only the merest passing mention of your target case in its analysis. Similarly, one service may decide that the citing case only “mentions” the target case while in another you may see that it has been labelled as “following” your target case.

There are two antidotes to this concern. First, get in the habit of reading the citing cases for yourself. Assess for yourself how accurately the treatment indicator describes the real relationship between the citing case and your target case. If you are finding too many citing cases in your note up to do this easily, try applying some filters first — citing cases only from certain levels of court, certain jurisdictions, or from within a specific time range. Second, try noting up your case in another service. You may not always have access to both subscription services. But you will always have access to CanLII, for free. It may be worth taking a minute or two to crosscheck your subscription citator results with what is found on CanLII. The discrepancies may be revealing and prompt you to do some further searches to refine your conclusions about the strength of your target case.

The volume of cases available online may make some note up records for citing cases seem overwhelming. One strength of using these tools online is that you can easily manipulate a massive list of citing cases according to various factors (court, jurisdiction, year, treatment) or even conduct more sophisticated keyword searches across the body of citing cases. Westlaw and CanLII even allow you to filter your list of citing cases by subject: in Westlaw, by using the Abridgement classification filter and in CanLII, by using their high-level subject filter. By leveraging these types of integrated features across a service, you can make the high volume of available information more manageable.

7.5 Maintaining Current Awareness: Monitoring case law

Staying up to date with case law can be achieved by a variety of methods, but your approach will depend on your goal: Do you need to monitor a specific case? decisions involving a specific area of law? or any decision that includes a particular keyword or phrase? In fact, you may find that it’s most effective to use a combination of these options.

The current awareness tools listed under “secondary sources” can also be useful for keeping up to date with case law developments in a specific area of law. Often the easiest way to stay up to date is to leverage the work already being done by an expert in the field. Finding a prominent lawyer, law firm, or other expert who will digest this material for you can be a very efficient way to maintain current awareness. Some resources are designed to keep practitioners up to date on a specific area of case law. These vary significantly by practice area. For example, LexisNexis NetLetters are a group of resources available in Lexis, which provide weekly summaries of case law by practice area. The Lexis digests also allow you to set up alerts classification or sub-classification, so that you receive the latest digests as they are added to the database.

If you are trying to monitor a much more specific subset of case law, all three legal research services allow you to set up an alert from the results page of a case law search. Simply select the database that reflects your jurisdiction of interest, enter your search, and look for an alert button. This will allow you to receive emails when new cases meet your search criteria.

Lastly, the citators on Lexis, Westlaw, and CanLII all allow you to set up an alert when new cases are added to the note up record for a specific case. This is a useful way of monitoring a specific case, its progression through the court system, and its ongoing treatment. Set up an alert by first navigating to the citator view in a case and then looking for a bell or other “alert” icon.