Researching Case Law

AuthorTed Tjaden
New law students and f‌irst-time legal rese archers are sometimes sur-
prised by how much judge-made law exists and how important it can
be in determining legal rights. This judge-made law, made up of the
decisions of judges and admini strative tribunals, forms what is referre d
to as the “common law,” a body of law that becomes the judicial pre-
cedents by which current judges are bound. Unfortu nately, this body of
law is not always well organized or coherent, creating the challenge of
researching c ase law to ensure that all relevant cases have been found
and have not been overruled or questioned by subsequent court deci-
sions. One goal of a lawyer or self-represented party in litigation in a
common law system, therefore, is to f‌ind previous court deci sions simi-
lar on the facts and favourable on the result s so that the judge presiding
over the current litigation wil l be obliged to follow the previous cases
and rule in favour of the lawyer or sel f-represented litigant.
This chapter will discuss case law by f‌irst providing a brief over-
view of the judicial system, followed by an explanation of the role of
“judicial precedent” (also known as stare decisis) and how case law is
published. Techniques to f‌ind relevant cases will then be discus sed,
along with “noting up” case law, a technique to update or verify your
research to ensure t hat the cases you have found have not been over-
ruled on appeal or negatively questioned by subsequent cases.1
There are a lot of similarities b etween the judicial systems in most com-
mon law countries, including but not limited to Can ada, England, the
United States, and Australi a. Central to these systems is the r ule of law,
an idea that all persons are governed by a known set of rules and pro-
cedures that include agreed-upon methods for part ies to resolve their
disputes. In reality, litigating disputes in the judicial systems of most
modern countries can be unduly complex, time consuming, and ex-
pensive. Fortunately, for the purpose of putting legal research in con-
text, it is generally suff‌icient to have only a broad underst anding of how
the judicial system operates, a n understanding that can be simplif‌ied to
explain how legal rese arch relates to the judicial process.
Judges are appointed by the state to resolve crimi nal and civil dis -
putes and are given power to enforce laws and punish w rongdoers
through imposing imprisonment and f‌ines enforceable by the state in
crimina l matters or through awarding judgments enforceable by partie s
to the dispute in civil m atters. The independence of judges is ensured
in most modern countries through various means, including appoint-
ment procedures, security of tenure, high salaries, and institutional
independence of the courts.2 An important issue in recent years in the
legal literature has been t he topic of judicial activism, a notion held by
some commentators that judges, as unelected off‌icials, w ield too much
(political) power in their decision mak ing, deciding matters that are
more properly decided by elected politicians.3
1 Readers need ing specif‌ic informat ion on researching Québec lega l materials
should consult any of the fol lowing resources: Clare M auro, Researching Quebec
Law: Insights for Common Law Pract itioners (Toronto: Carswell, 2015); Denis
LeMay, Dominique Goubau, & M arie-Louise Pelletier, La recherche docu mentaire
en droi t, 6th ed (Montréal: Wilson & L af‌leur, 2008); Dominique Lapierre, “Re-
searchin g Québec Law” in Douglass M acEllven et al, eds, Legal Research Hand-
book, 6th ed (Markh am, ON: LexisNexis Can ada, 2013) ch 10; or the researc h
web pages of the Univer sity of Montreal Law School (www.droit.umontr
and the Universit y of Laval Law School (
2 WR Lederm an, “The Independence of the Judiciar y” (1956) 34 Canadian Bar
Review 769 ; R v Valente, [1985] 2 SCR 673.
3 See Adam Dodek & L orne Sossin, eds, Judic ial Independence in Conte xt (Toronto:
Irwin L aw, 2010); Paul Rouleau & Linsey Sherma n, “Doucet-Boudreau, Dia-
logue and Judicia l Activism: Tempest in a Teapot?” (2009–2010) 41 Ottawa Law

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