Cases

• Author: Arlene Blatt/JoAnn Kurtz
• Pages: 43-74

43

4

Cases

Learning Outcomes

After reading this chapter, you will understand:

• What a case is

• Why we read a case

• How to read a case

• How cases are published

• How to cite a case

Introduction 44

What Is a Case? 44

Why Read a Case? 45

How to Read a Case 45

Headnote and Summary 46

Purpose 46

Facts 46

Issues 47

Law 47

Ratio Decidendi and Decision 48

Disposition 48

Obiter Dicta 48

Warm-Up Exercise: Reading a Case 49

How Cases Are Published 55

How to Cite a Case 55

1. Style of Cause 55

2. Year 56

3. Law Report Volume Number 56

4. Name of the Law Report Series 56

5. Law Report Series Number 56

6. Page Number 57

7. Jurisdiction and Court 57

Parallel Citations 57

Citation with Case History Included 58

Online Database Citations 58

Neutral Citations 59

Complete Citations 59

Key Terms 60

Exercises 60

Answers to Warm-Up Exercise 69

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.

44 PART II THE PRIMARY SOURCES OF CANADIAN LAW

Introduction

Judicial decisions, known more informally as case law, are one of the four primary

sources of Canadian law. As with statutes, bylaws, and regulations, legal professionals

have to know how to read and understand a case. It is also helpful to understand how

cases are published and how to cite a case. This chapter provides such information.

What Is a Case?

Case law is comprised of written decisions made by judges, adjudicators, masters, or

justices of the peace in court and tribunal proceedings. Each decision, or “case,” is the

written record of an individual legal proceeding, created by the decision-maker (the

judge, adjudicator, master, or justice of the peace) and summarizing the most import-

ant aspects of the proceeding. A legal proceeding may be a trial, an appeal, a motion,

or a hearing.

Canada’s court system is made up of courts and administrative tribunals. Judges,

masters and justices of the peace (presiding over courts), and adjudicators (chairing

tribunals) have the authority to hear disputes and make decisions that affect the legal

rights or obligations of the parties appearing before them.

The format of a case reflects what takes place during the proceeding. So, we will

approach the question of what a case is in a rather roundabout way, by first talking

about what happens during a proceeding in the courtroom or hearing room.

The two main parts of a proceeding are the evidence and the legal argument. The

parties present both of these to the decision-maker; each side tells its version of the story

and points out the law that tends to support its side of the dispute. In a civil trial, the

parties are called the plaintiff and the defendant. In a criminal trial, the parties are called

the Crown and the accused. In a motion or hearing, they may be called the applicant

and the respondent. In an appeal, they are called the appellant and the respondent.

In a proceeding, the first thing the decision-maker must do is listen to both sides’

stories. In a trial or hearing, these stories are brought forward by witnesses, who give

evidence on behalf of one party and are cross-examined by the other party (or parties).

In motions and in some hearings, the evidence may be brought forward in writing—

for example, by way of an individual’s sworn statement plus a record of the other side’s

cross-examination of that individual. Once all the evidence has been presented, each

party orally summarizes its view concerning the law that applies to the fact situation.

Then the judge or adjudicator has to decide, between the conflicting stories of the parties,

what he or she reasonably believes actually happened. In other words, the decision-

maker needs to establish the facts of the case. Once that is done, the decision- maker

must choose the law that he or she believes is applicable to those facts.

In an appeal, which is an appellant’s request to a higher court to overturn the

decision of a lower court or tribunal, there are generally no witnesses to give evidence

because the facts have already been determined by the trial decision-maker. Instead,

the appellant and respondent have each prepared a factum setting out a summary of

the prior proceedings and the facts on which each is relying in the appeal. The court

is provided with the transcript of the oral evidence from the trial or hearing. The fac-

tum also contains a statement of the relevant law on which the party is relying. The

parties also have the opportunity to make oral argument about the law; the appellant’s

argument attempts to show that the trial decision-maker made a mistake of some kind.

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 4 CASES 45

The decision-maker ends the dispute by making a decision in favour of one side or

the other and then telling the parties what happens next. For example, the judge

might say, “I find for the defendant; case dismissed”; or, “The applicant has made out

its case; therefore the application is allowed”; or, “Appeal allowed. The matter is to

be returned to the trial judge for a reassessment of damages.” Finally, the decision-

maker provides his or her reasons for decision. Sometimes, he or she states the reasons

orally at the end of the trial, hearing, or appeal. Sometimes, the decision-maker

endorses—in other words, writes—the reasons on the back of the record, which

contains the formal documents filed with the court in the dispute. At other times, if

the decision-maker doesn’t have time to give reasons or wants to organize them

carefully, he or she will provide them in writing at a later date.

The decision-maker’s written decision will be given to the parties to the dispute.

A decision of legal importance or interest may be published in print or online and is

referred to as a case report or simply a case.

Why Read a Case?

Case law research can tell you many things—such as whether a client has a cause of

action to begin with and whether the action, if pursued, would succeed; how much

a client could expect to be awarded in damages; and what evidence has to be pre-

sented at trial.

The law in a particular case is useful to your client in a particular situation only if

• the issues in the case and in the client’s situation are similar,

• the facts in the case and in the client’s situation are similar, and

• the case is binding (a court must follow the case) or at least persuasive (a

court is not required to follow the case, but may follow it if it wishes) in your

jurisdiction (see Chapter 6 for more detailed discussion of binding law and

persuasive law).

If the issues and the facts are similar, and the case is at least a persuasive authority,

the law in the case can be applied to your client’s situation.

How to Read a Case

If you haven’t read many cases, you may just see a shapeless mass of words when you

look at one. But the truth is that all cases, however long or short, share a particular

structure. Once you learn how to identify the different parts of a case, you will be able

to use the case in research. A decision-maker’s reasons for decision will reflect the

process that took place in the courtroom or hearing room and therefore contain cer-

tain structural elements. As a result, all cases contain the following elements:

• purpose,

• facts ,

• issues,

• law,

• ratio decidendi (Latin for “reason for deciding”),

Copyright © 2020 Emond Montgomery Publications. All Rights Reserved.