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Tips for case law searches

Posted by Darryl Aarbo — filed in Rule of Law

If you are trying to do a search on a case, or understand case law, then the following might help you better understand case law.
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The overall format of a case will usually follow FIARC: Facts, Issues, Analysis (how does the law apply to the facts – must have reasoning and logic), Rule or Ratio (if the judge is making a new law), conclusion.

Sometimes a search can result in a large number of cases. Often there are “headnotes” which are key words or sentences that briefly outline what the basic facts are and possibly what the result was. You can skim the headnotes to find the cases that are the most relevant.

NEVER rely on just the headnotes! Headnotes are written by an individual who may not be selecting accurate words or phrases. You have to read the whole case to make sure you know exactly what the case is about.

Anything that is not the rule or ratio of a case is referred to as “Obiter”. The only part of a case that is binding on other judges is the rule or ratio, not the obiter. That is not to say that the obiter is not important. Sometimes judges make remarks in cases that lawyers or judges find helpful.

In the case of appeals there are usually at least three judges who review the case and one or all of them can write a decision. If most of the judges are in agreement but there is a minority of judges who make a different decision, we call the decision of the majority the “majority decision” and the decision of the minority the “dissent”.

The “dissent” decision is treated the same as obiter, which means that even if the judge formulates a rule or ratio, it is not binding on any other judges.

The higher the court level the more authoritative the decisions will be. If you are looking to find out what the foundational rules are in an area of law, Supreme Court of Canada (the highest court in the Country) (“SCC”) decisions are the best starting point and then most recent cases that have considered the SCC decision.

Courts tend to prefer to follow cases from their own province or region. As a result, a series of decisions are made that set out rules but those rules only apply in one province or area. Different provinces or region can end up having different lines of authority for the same legal issue. After looking at SCC decisions, next best place to look is in your own province.

Just because a case has been published does not mean that the decision is final. There can be up to four times that someone can appeal a decision. It is imperative to check to make sure that the case was not appealed and changed or overturned by a higher level court. Also, sometimes decisions are not followed by other judges and may even be found to be bad law.

By Jolene Lalonde of Courtney Aarbo Fuldauer LLP

For more information, please contact the law office of Courtney Aarbo Fuldauer LLP at:

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: info@courtneyaarbo.ca

Jolene Lalonde
Barrister & Solicitor
www.courtneyaarbo.ca

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*
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