Assessing Your Results

Paul Dawson

I. Introduction Knowing where to

stop…

What is your purpose? Note up a case or

statute

Find a specific fact pattern

Provide full summary of law

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What sources have you used? Canadian

Abridgement Electronic

databases Textbooks Reporter Series Journals Internet

Success…

Fig.1: A strong precedent

…and its alternatives

Fig. 2: Not a good precedent.

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What is a useful case?

1. Authoritative and binding statement of the law.

2. Supports the case you want to make.

This paper will cover…

Assessing a case Stare decisis Escaping binding precedents Using out-of-province authorities

II. Kicking the tires

A. Form

What level of Court? What jurisdiction?

Too long or short? May be a narrow precedent.

How much law cited?

Form (cont.)

Search for a key word or case name.

Use table of contents, if present.

Use Quickcite references to locate key cases.

Substance

What issues were before the Court?

Is it a trial judgment, or interlocutory?

Does the result turn on law or facts?

Is it new law, or just repetition?

Substance (cont.) Identify the leading cases – are they

present?

Make tree, taxonomy, or table to keep track of key facts – and outcome.

Record the results – how do the cases relate to your purpose?

Don’t forget… Cases are like

popcorn – addictive, but not necessarily nutritious.

Remember your purpose, and your client.

III. Stare Decisis

Is your case binding, or persuasive?

Stare decisis balances: Certainty Stability Predictability

Adaptability Justice Correction of

error

Vertical stare decisis Lower Courts bound by higher

courts in the same jurisdiction

Courts not bound by courts from other jurisdictions

Masters and Registrars bound by Judges, but not vice versa

Vertical stare decisis (per Master Funduk)

Fig. 3: Court of Appeal Fig. 4: Supreme Court

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Horizontal stare decisis

Courts generally follow their own decisions.

Procedural requirements for challenging appeal decisions – 5 member panel.

SCC will change only “with restraint”.

Hansard Spruce Mills Leading case on horizontal stare decisis in BC Should follow precedent unless:

It is affected by subsequent decisions Binding authority not considered Made without full argument Palpably wrong

IV. Escaping Binding PrecedentsLegal Reasoning Toolkit

a. Check for subsequent treatment.

Has the case been overturned? Can be explicit or implicit.

CASE “A”CASE “B”

b. Redefine ratio

Frame the ratio more or less broadly.

Question of emphasis.

Case “A”Case “A”

c. Alternate threads within the case

Obiter – may be binding if a considered statement of law by appellate court.

Dissents – not binding, but often helpful.

Case “A”(Obiter)

Dissent

Case “A”

d. Distinguish your case

Restrict the case to its facts, or show that yours are different.

Case “A”Facts 1,2,3,4

Your CaseFacts 1,2,5,6

e. Find parallel stream of authority

Is there an equally binding but contradictory case, or stream of cases, that supports you?

Case “A” Your Case Case “B”

V. Using Outside Cases

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Outside cases are… Never binding in British Columbia Can be persuasive if there is:

No local precedent

Common statutory language

Common regulatory scheme

Common contract

Be careful

Common law diverging

Is the case still good law at home?

If not, might weaken value here

Consider:

What level of Court? Well-known judge? Some Canadian courts more

persuasive than others Are facts especially close? Does it draw on British Columbia

law?

VI. Conclusion

You can’t follow every lead

Know when to stop

Good luck!