![\"Four-panel](\"https:\/\/openbooks.macewan.ca\/legalresearchforparalegalsandlegalassistants\/wp-content\/uploads\/sites\/31\/2025\/02\/case-law-1024x380.png\")
Figure 4.1 An AI-generated image of a paralegal explaining how to read case law. [Image description \u2013 <\/a>Learning Objectives<\/p>\r\n\r\n<\/header>\r\n Upon successful completion of this chapter, learners will be able to do the following:<\/p>\r\n\r\n Identify the definition and purpose of case law in Canadian legal research.<\/p>\r\n<\/li>\r\n \t Review the components of case formats, including written, oral, and electronic hearings.<\/p>\r\n<\/li>\r\n \t Describe the structure and key elements of a case using the FILAC method.<\/p>\r\n<\/li>\r\n \t Identify the difference between binding and persuasive authority.<\/p>\r\n<\/li>\r\n \t Recognize the importance of stare decisis in Canadian common law.<\/p>\r\n<\/li>\r\n \t Outline the key elements of a case: style of cause, facts, issues, law, ratio decidendi<\/em>, decision, obiter dicta<\/em>, and disposition.<\/p>\r\n<\/li>\r\n<\/ul>\r\n<\/div>\r\n<\/div>\r\n <\/span>Recall that the primary sources of Canadian law are legislation and case law. Both are integral to successful legal research. This chapter focuses on learning to read case law. In particular, it defines case law and common case law terms, considers the format of a case, and discusses why it is important to learn to read a case. It also demonstrates an effective case-reading technique and gives the reader the opportunity to apply that technique. Learning these skills are vital to conducting proper legal research, as will be shown in this chapter and in the chapters to come.<\/span><\/p>\r\n\r\n Stasiewich (personal communication, March 2024) introduces many common legal terms to students in her Legal Research and Analysis course materials. Several of these terms are explained below.<\/span><\/p>\r\n A <\/span>legal proceeding<\/span><\/strong> may be a motion, a trial, an appeal, or a hearing. A <\/span>motion<\/span> is an application by a party to a court or a judge to obtain an order for some kind of relief. <\/span> <\/span>A <\/span>hearing<\/span> is a formal meeting at which a decision-maker receives evidence, considers the oral arguments of the parties, and makes a decision. An <\/span>appeal<\/span> is an application to a higher court to review a <\/span>judgment<\/span> to determine whether any errors of law occurred within it, and if so, to have the decision upheld, overturned, or altered. A proceeding may also be identified as either <\/span>civil<\/span> or <\/span>criminal<\/span>, depending on whether it flows through the civil or the criminal court system. <\/span><\/p>\r\n An <\/span>administrative proceeding<\/span><\/strong> is a written or an oral hearing involving either an individual and\/or a company, or individuals or companies and the government, regarding statute-based rights and obligations. A<\/span> tribunal<\/span> is an agency that operates like a court to decide disputes between the parties of an administrative proceeding (Nastasi et al., 2020).<\/span><\/p>\r\n Stasiewich (personal communication, March 2024) also differentiates between the titles of the parties in the different types of proceedings. In a motion or a hearing, the <\/span>applicant<\/span> is the party that files the application and the <\/span>respondent <\/span>is the party that answers or defends the application. In an appeal, the <\/span>appellant<\/span> is the party who files the application and the <\/span>respondent<\/span> is again the party that answers or defends an appeal. In civil litigation, the <\/span>plaintiff <\/span>is the party that initiates the civil action and the <\/span>defendant<\/span> is the party that responds to or defends the action. And lastly, in criminal cases, the <\/span>Crown <\/span>or <\/span>Crown Counsel<\/span> (identified as \u201c<\/span>R\u201d<\/span> for Regina or Rex) is the party that prosecutes the offence and the <\/span>defendant <\/span>or the <\/span>accused <\/span>is the party that answers or defends the offence. Many of these terms are encountered when reading cases, and the common formats are described next.<\/span><\/p>\r\n\r\n FILAC is an acronym that stands for<\/span><\/strong>:<\/span><\/p>\r\n F<\/span><\/strong>acts: <\/span>Analyze<\/span> the facts.<\/span><\/p>\r\n I<\/span><\/strong>ssues: Determine the issues.<\/span><\/p>\r\n L<\/span><\/strong>aw: Find the relevant law.<\/span><\/p>\r\n A<\/span><\/strong>nalysis: <\/span>Analyze<\/span> the law and apply it to the facts.<\/span><\/p>\r\n C<\/span><\/strong>ommunicate: Communicate the results of the research.<\/span><\/p>\r\n\r\n<\/div>\r\nWhen applying FILAC to identify the format or layout of a case, it is important to recognize that the <\/span>facts<\/span> are presented, the legal <\/span>issues<\/span> are identified, the <\/span>law<\/span> is determined, <\/span>analyzed,<\/span> and <\/span>applied<\/span> to the facts, and then a <\/span>conclusion<\/span> or decision is determined. Please note that, in this context, it is the conclusion or decision that is <\/span>communicated<\/span> at the end of the <\/span>process, not the research. Employing this acronym may simplify the process of following a case\u2019s format for some researchers.<\/span>\r\n Case law is important as it guides a researcher through the process of determining (and may actually determine) the validity of a client\u2019s case. Blatt and Kurtz (2020) state it can help identify whether the client has a cause of action; if so, what evidence is necessary to prove it; their chances of succeeding at it; and, what relief they may be awarded should they succeed [or penalty should they fail]. <\/span>Stare decisis<\/span>, binding, and persuasive authority play an important role in determining the above factors.<\/span><\/p>\r\n Recall that Canada has a <\/span>common law<\/span> legal system (except for Quebec, which has a codified system) where judges must follow the doctrine of <\/span>stare decisis<\/span> which means \u201cto stand by things decided\u201d (Blatt & Kurtz, 2020, p. 86). This means that similar cases should be decided in a similar way. The principle requires judges to follow previously made decisions (precedents) with similar facts and legal issues from higher courts within their province or territory and from the Supreme Court of Canada. The precedent cases are said to have vertical <\/span>binding authority<\/span>\u2014the courts within that jurisdiction are compelled to follow the higher courts and to decide their cases in a similar manner (University of Toronto, n.d., Primary Sources of Law: Canadian Case Law section). It is important to note that any Supreme Court of Canada decisions, as the highest court in the country, are binding on all other courts in the country. It is also important to note that Canada enforces a concept of horizontal stare decisis that applies to following the previous decisions of the same court in which the current case occurs, although it is not considered <\/span>binding (Rowe & Katz, 2020). A case may, however, be <\/span>distinguished <\/span>from either of these authorities by having facts or legal issues that significantly differentiate it from the precedent. In this circumstance, the precedent (and thereby stare decisis) would likely not apply as the cases would not be sufficiently alike to be considered similar.<\/span><\/p>\r\n\r\n<\/div>\r\n<\/div>\r\nCases may also have persuasive authority<\/span>. These are decisions with similar legal issues from the same or higher level of court in other provinces or territories (or other jurisdictions) that a court may choose to follow\u2014assuming they do not contradict any relevant binding authority. They, too, may predict and influence how a case is decided if the facts and legal issues are sufficiently similar.<\/span>\r\n See the diagram below for a brief review of the concepts of stare decisis, as well as binding and persuasive authority.<\/a><\/span><\/p>\r\n\r\n[caption id=\"attachment_198\" align=\"aligncenter\" width=\"646\"] Both binding and persuasive authority add <\/span>weight <\/span>(or value) to the applicability of a researched case, with binding authority carrying far more weight than a persuasive one. And the higher the court level of the decision, the more powerful or influential the decision. There are, however, other factors that may also contribute to the weight a court would assign a case. <\/span><\/p>\r\n\r\n Bueckert<\/span> et al. <\/span>(2018) recommend considering all of the following<\/span><\/strong>:<\/span><\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n <\/span>Trying to read through a case\u2014especially a long one\u2014may seem like a daunting task. However, by employing a commonly used case-reading technique, the task may be broken down into manageable steps, systematically worked through, read, and understood. This section will demonstrate how to apply an effective case-reading technique. <\/span><\/p>\r\n Recall that the format of a case mirrors the structure of a proceeding. The decision-maker\u2019s reasoning in a decision also typically mirrors the structure of a court or tribunal proceeding. Therefore, by walking through the steps of the actual proceeding, the researcher may identify and read their way through the key elements of the <\/span>judgment<\/span> and the decision-maker\u2019s reasoning. <\/span><\/p>\r\n\r\n A proceeding typically starts with the parties, their representatives or lawyers, and the decision-maker or judge being introduced. This introduction is represented in the <\/span>style of cause,<\/span> which is located at the top of the first page of a written case. <\/span><\/p>\r\n\r\n The style of cause identifies<\/span><\/strong>:<\/span><\/p>\r\n\r\n\r\n \t
Introduction<\/span><\/h2>\r\n
Defining Case Law<\/span><\/h2>\r\nA basic understanding of case law is essential for conducting legal research. Blatt and Kurtz (2020) define case law<\/span> as \u201cwritten decisions by judges, adjudicators, masters, or justices of the peace in court and tribunal proceedings\u201d (p. 44). It encompasses cases decided provincially, federally, and internationally, and from all levels of court. A <\/span>decision<\/span> or <\/span>case <\/span>is a <\/span>written account by a decision-maker of the facts and the evidence presented, the law applied, the arguments made, the decision rendered\u2014and the reasons for it\u2014in a law case or legal proceeding. Reviewing common terms contained in a case or proceeding will help to make reading case law easier.<\/span>\r\n
Common Legal Terms<\/span><\/h2>\r\n
Case Formats<\/span><\/h2>\r\n <\/span>The<\/span> format of a case or decision generally mirrors the format of the proceeding it recounts. There are two primary formats for cases or proceedings: written and oral. In a typical <\/span>proceeding with a written format, the parties submit evidence to the decision-maker that supports the facts of their case (usually in document form), copies of the law that they deem relevant to their circumstances, and written arguments that set out their case. The parties typically review each other\u2019s information and may cross-examine that information through written and answered queries that are also submitted. The decision-maker then reviews and considers the submitted information, applies the law to the facts, forms a decision, and communicates that decision and the reasons for it in written form to the parties. Motions, applications, and hearings of a less serious nature tend to be implemented in a written format.<\/span>\r\n\r\n<\/div>\r\n<\/div>\r\nConversely, in a typical proceeding with an oral format, all the parties to the case appear before the judge and are present for its duration. Each party sets forth an opening argument that delineates the essential facts of their case and what they will attempt to prove. Their evidence is submitted to the judge via witness testimony. Each party may cross-examine the other\u2019s witnesses. Then each party, in turn, may re-examine their own witness(es) after cross-examination regarding any new information presented or any required clarification. Relevant law (e.g., legislation and case law) that the parties will rely on is submitted and arguments demonstrating how the law applies to the facts of the case are put forward. The parties then present their final arguments, summarizing the facts of their case, their evidence and relied-upon law, how that law applies to their case, and finally, why the judge should side with them. The judge formulates their decision (and the reasons for it) and may disclose it orally at the proceeding or have it sent to the parties at a later date in written form. This type of format is commonly implemented for trials and more serious applications or hearings. <\/span>\r\n\r\nThere are some variations of these formats. For example, at an appeal, the appellant and respondent each submit a written summary of the disputed proceeding, along with the facts and relevant law they are relying on for the appeal. No witnesses typically attend to testify, but a <\/span>transcript of the oral testimony from the earlier proceeding is provided to the judge(s) for review. Each party usually receives the opportunity to present an oral argument before the judge regarding the law for their case. After the judge has examined the provided information, they make a decision of whether to uphold, overturn, alter, retry, or dismiss the case presented for appeal. The reasons for the decision are explained to the parties and written up. It is important to note that appeal judges typically will not consider decisions regarding the facts of the case; however, they may consider those with a perceived mistake of understanding or application of law by a deciding lower court judge.<\/span>\r\n\r\nAnother variation is the electronic format, where the hearing occurs via video conference or another method of online visual conference. This type of hearing incorporates elements of both the written and the oral formats to varying degrees, depending on what is required or what will work for the participants at the hearing. <\/span>\r\n\r\nIdeally, in a decision or case, the decision-maker will follow a format conveyed in a research method developed by Maureen F. Fitzgerald (2022, p. 4), called FILAC.\r\n
The Importance of Case Law<\/span><\/h2>\r\n
![\"Infographic](\"https:\/\/openbooks.macewan.ca\/legalresearchforparalegalsandlegalassistants\/wp-content\/uploads\/sites\/31\/2025\/02\/Image-for-case-law-chapter-1024x576.png\")
Figure 4.2 The principle of stare decisis in Canadian common law. [Image description \u2013 See Appendix A Figure 4.2<\/a>]. Source: Adapted from Koenig. B., January 2023, as cited in Stasiewich, A., personal communication, March 2024.[\/caption]<\/div>\r\n\r\n \t
An Effective Case-Reading Technique<\/span><\/h2>\r\n
S<\/span>tyle of Caus<\/span>e<\/span><\/span><\/h3>\r\n
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