PLG 155(1) Case Law Research and Issue Spotting PDF

Case Law Continued / Issue Spotting and Developing a Legal Research Plan PLG 155(1) October 1, 2024 Review From Last Week Stare decisis and the doctrine of precedent Majority, concurring, and dissenting opinions Basic parts of a case: Procedural history Purpose Facts Issue...

Case Law Continued / Issue Spotting and Developing a Legal Research Plan PLG 155(1) October 1, 2024 Review From Last Week Stare decisis and the doctrine of precedent Majority, concurring, and dissenting opinions Basic parts of a case: Procedural history Purpose Facts Issues Law/rule Reasons Ratio Decision Today’s Agenda Part I: Case Briefing Activity Part II: Citing a judicial decision Part III: Finding judicial decisions online Part IV: Issue spotting and developing a legal research plan Part V: Secondary sources Today’s Objectives By the end of today’s class, you will be able to: Cite a judicial decision using McGill Guide Understand how to do case law research using CanLII Pull issues out of a fact pattern (issue spot) and learn how a legal research  PART I: CASE BRIEFING ACTIVITY Case Brief Activity Please form a small group and work together to brief the following case: Omotayo v Royal Bank of Canada, 2024 HRTO 1275 (link here) Procedural History? Facts? Issue(s)? Rule(s)? Reasons? Ratio? Disposition?  PART II: CITING JUDICIAL DECISIONS Neutral Case Citations Example: R v Manning, 2013 SCC 1 The neutral citation is assigned by the court that made the decision, not created by the publisher of a case reporter A neutral citation consists of four elements: Style of cause (case name), Year of the decision Abbreviation of the name of the court or tribunal that made the decision Chronological number indicating the decision’s place in the sequence of cases decided in that year Example – Neutral Citation Martinez v Human Rights Tribunal of Ontario, 2024 ONSC 2723. style of cause neutral citation Example – Criminal Case (Neutral Citation) R v Mathieu, 2008 SCC 21 style of cause neutral citation (R in criminal cases means Regina (The King)) CanLII Case Citations If a neutral citation is not available, the McGill Guide tells you to provide the CanLII citation When a case has a neutral citation, its CanLII citation will be based on that neutral citation, with (CanLII) appearing in brackets at the end of the citation (i.e. 2004 ABCA 38 (CanLII)) When there is no neutral citation, the CanLII citation will contain the year of the decision, followed by “CanLII”, a number, and an abbreviation in brackets of the court or tribunal that decided the case (i.e. 2002 CanLII 3562 (QC CA)) Example – Civil Case (CanLII Citation) level of court (added in because it is not clear from the CanLII citation) Murdoch v Murdoch, 1973 CanLII 193 (SCC). style of cause CanLII citation Example – Criminal Case (CanLII Citation) level of court (added in because it is not clear from the CanLII citation) Regina v Oakes, 1983 CanLII 1850 (ONCA). style of cause CanLII citation (R in criminal cases means Regina (The No Neutral or CanLII Citation If there is no neutral citation and no CanLII citation, the McGill Guide tells you to provide two citations to an online database or case reporter Example: style of cause Westlaw citation (database) Borowski v Canada (AG), 1989 CarswellSask 241, 1 SCR 342 (SCC). Supreme Court Reports the court level has been added because it was not clear reporter citation from either the Westlaw or SCR citation Components of a Case Citation – Style of Cause This is the name of the case The parties are separated by the letter “v”, meaning “against”, in civil cases In criminal cases, R means Regina (The King) Sometimes you will see an abbreviated (shortened) style of cause Components of a Case Citation – Jurisdiction and If you do not have a neutral citation and the Court jurisdiction and court information is not obvious from your CanLII or other citations, you must provide it The jurisdiction and court information is written in at the very end of your case citation in round brackets Example: Fucella v Ricker (1982), 35 OR (2d) 423 at 426 (H Ct J). See Appendix A of your McGill Guide for the complete list of jurisdiction abbreviations and Appendix B for court abbreviations  Components of a Case Citation – Pinpoint When you are referring to a particular passage or point in a case, you will need to provide a pinpoint reference This will come at the end of your citation (but written in before the jurisdiction and court information if that is added) Example: R v Marakah, 2017 SCC 59 at para 3. R v Big M Drug Mart, 1985 CanLII 69 at para 67 (SCC). Order of Citations 1. When the case you are citing has a neutral citation, that is all you need to provide: Example: R v Marakah, 2017 SCC 59. 2. When the case you are citing does not have a neutral citation, you should provide the CanLII citation: Example: Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC). 3. When the case you are citing does not have a neutral citation or a CanLII citation, provide two parallel citations Knowledge Check R v Hills, 2023 SCC 2. R v Edwards Books and Art Ltd., 1986 CanLII 12 (SCC). 1. Which one is the neutral citation? 2. What is the style of cause? 3. Why is (SCC) added in brackets?  PART III: FINDING AND UPDATING A JUDICIAL Updating Cases Once you have found helpful cases, it is very important to update them This means two things: (1) Seeing if the case has been appealed to a higher court; and (2) Seeing how the case has been treated by subsequent courts (has it been consistently applied, distinguished, or overruled?) This updating process is referred to as ‘noting-up’ a case Finding Cases Online – CanLII Demo Click here to access CanLII Find R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC) Browse decisions of the Ontario Small Claims Court Browse a statute to find cases Note-up a case Keyword search  PART IV: ISSUE SPOTTING AND DEVELOPING A LEGAL RESEARCH Issue Spotting Issue spotting refers to the skill of identifying legal issues present in a given situation Your textbook recommends using four steps to analyze a situation: 1.Identify, on a preliminary basis, the issues arising from the facts 2.Formulate those issues 3.Consider whether there are any hidden issues (issues that are not immediately obvious) 4.Identify the need for further information 1. Identifying Issues When you are identifying the issues on a preliminary basis, focus on the following things: What the client is seeking What the relevant facts are What the relevant area of law is What the objective of your research is 2. Formulating the Issues Write down the issues you identified, starting with the word “whether” For example: Whether a person who is not a parent of a child may apply for custody of that child Whether the limitation period for medical malpractice begins to run from the date of the medical procedure Whether a landlord can evict a tenant who has a dog when the lease contains a no-pet provision 3. Hidden Issues To assess whether there may be other hidden issues in your fact situation, consider the following questions: 1. Are there any special procedural requirements? For example: is there a limitation period that may expire shortly? 2. Who are the parties involved? For example: are they natural persons, corporations, adults, minors, spouses, mentally 4. Further Research You may realize you need more information before you can do your research For example: you may need more facts to decide whether a cause of action has arisen, or you may need to know the legal status of all parties involved in the problem Finding the Law After you have identified the issues, you must determine what law applies You should be able to make an educated guess about the area of law involved by looking at the fact situation For example: criminal law, tort, contract law, family law, or real estate After you make your educated guess, you can consult some secondary sources to help steer Finding the Law Before you begin your research, it is helpful to have a plan to keep you focused Once you have identified your issues and the areas of law that you need to familiarize yourself with, it is useful to compile a checklist The checklist will change depending on the issue you are researching Remember that the research process is not always linear – you might encounter something you didn’t consider before and have to go back Legal Research Checklist 1. Secondary sources Encyclopedia? Annotated statute? Textbook? Dictionary? Loose-leaf publication? 2. Primary law - legislation Statutes? (federal and/or provincial) Regulations? (federal and/or provincial) Bylaws? (municipal) 3. Primary law – cases Leading cases that set out the law (from the SCC or a court of appeal) Cases that closely resemble your fact pattern and have the same or similar issues Note-up cases to see how they have been considered Legal Research Checklist As you are reviewing your research findings, take note of information that seems relevant or interesting For example: take down the citation for a relevant case and a short description of what is useful about it Keep a list of sources you have looked through For example: the name of the source you consulted and its currency information Legal Research Checklist After consulting your secondary sources, you can start compiling information in your legislation and case law sections Example: Primary law - legislation Cannabis Act (federal); Cannabis Control Act (Ontario) Cannabis Regulations (federal); Non-Application of Act to Certain Cannabis and Cannabis Products (Ontario); General (Ontario) A By-Law to Prohibit Smoking in the City of Windsor Legal Research Checklist When you get to case law research, it is even more important to stay organized Keep track of the searches you run Identify leading cases that set out the applicable law Also search for cases that are similar to the facts and issues of the legal problem you are researching Do not disregard cases that are not helpful to your client’s position – when writing a memorandum, Issue Spotting Exercise The client, a Canadian charity called the World United Fund, has come to your firm with a problem. It recently ran a $1 million campaign to get donations to build a school in a poor country. Mrs. Euphemia Welsher promised to give $100,000. When the Fund had the entire $1 million in hand except for Mrs. Welsher’s donation, it publicly declared the campaign successfully ended and hired an architect to draw up the plans for the school. Mrs. Welsher then told the Fund that she intends to give the money to a home for cats in New York where she lives (except for two months in the summer when she resides in Canada). The client  PART V: SECONDARY SOURCES Using Secondary Sources Secondary sources are a great first place to look when you are trying to learn about a new area of law Some sources to help you get started: Legal encyclopedias (Halsbury’s Laws of Canada or the Canadian Encyclopedic Digest) Annotated statutes Textbooks Loose-leaf services (texts that are updated on a continuing basis) Journal articles Dictionaries Using Secondary Sources Secondary sources will lead you to: Statutes, regulations, and/or bylaws Case law that governs the issue(s) you are researching *Remember that secondary sources are not the law – they discuss and interpret primary law Once you find statutes, regulations, or bylaws, you will need to make sure they are updated You will need to determine whether there has been any case law interpreting or even striking down provisions of the statutes and regulations you are relying on Halsbury’s Laws of Canada Source: University of Ottawa Halsbury’s Laws of Canada Halsbury’s focus is Canada-wide and its volumes are broken down into titles focusing on specific areas of law Each Halsbury’s title will contain a table of statutes, table of statutory instruments, and table of cases These tables are lists of all statutes, regulations, and cases referenced in the title When you are using the print version of Halsbury’s and you don’t know what you are looking for, consult the Companion Guide and Consolidated Index to look up key terms This will direct you to certain titles and specific paragraph numbers Halsbury’s Laws of Canada The currency date of an encyclopedia will be clearly stated (usually at the very beginning of the title) Halsbury’s volumes are updated regularly so they stay relatively current The updates are released in the form of supplements It is important to read the supplements to know about any important developments (changes to the law, an error that is being clarified, etc.) In print, the supplement will be a separate volume (typically shelved at the end of all the volumes) Annotated Statutes An annotated code can tell you a lot about a particular statute These texts are usually published every year so they are current Depending on the book, you could see interpretations of particular provisions, explanations, and analysis You could also see references to cases that have interpreted Loose-Leaf Services A loose-leaf publication is a printed book that has regular updates throughout the year The updates contain new pages that will be incorporated into the loose-leaf volume so it stays current These loose-leaves are found on a wide variety of legal topic areas Textbooks and Dictionaries Don’t underestimate the value of textbooks and dictionaries Make sure you select a current textbook, not one from 15 years ago (or a very old edition) Black’s Law Dictionary is available on Westlaw; Barron’s Canadian Law Dictionary is available on Quicklaw Thank you for listening!