Identifying Trial Decisions in Case Reports: A Guide for Self-Represented Litigants, Lecture notes of Family and Consumer Science

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Reading and Understanding

Case Reports:

A Guide for

Self-Represented Litigants

Margarita Dvorkina & Julie Macfarlane

The National Self-Represented Litigants Project

September 2017

Table of Contents

Our appreciative thanks to Cynthia Eagan, Dayna Cornwall, Hope Moon and

• Before You Get Started
• Part I: Navigating a Case Report
• 1. What is a case report?
• 2. Do all case reports describe a trial?
• 3. How do you know which case reports are trial decisions?
• 4. What information can you expect to find in a case report?
  • a. The caption
  • b. The case citation
  • c. The headnote
  • d. The authoring judge
  • e. The facts of the case
  • f. Procedural history and appeals
  • g. References to other cases
  • h. Legal principles and other authoritative sources
  • i. The outcome
• Part II: Using a Case Report to Make Your Own Case - a. Understanding precedent - b. Checking that a case is “good law” - c. Understanding the facts - d. Understanding the arguments made by each party - e. Finding the gem of the case ( ratio decidendi ) - in a case report? f. What is the importance of the obiter dictum comments - is obiter dictum? g. How do you know what is part of the ratio and what
• Appendix A: Glossary of Terms
• Appendix B: Canadian Court Abbreviations

that you use it in combination with NSRLP’s CanLII Primer (also available in French). Both are free online NSRLP Primers written specifically for SRLs. In order to conduct your own legal research using case reports, you need to be able to do two things:

1. Identify which earlier court decisions (found via CanLII or other legal databases) will carry the greatest weight in relation to your own legal matter. This means understanding the system of precedent and the structure of the courts, both of which are explained in the Can LII Primer. This knowledge will enable you to narrow down which case reports may be useful to you in your own case preparation. We recommend that you review this framework before getting started with your legal research^1. We also recommend that you read Cindy Freitag’s blog, “Caselaw Research is Like Cheesecake.”
2. Analyze and understand an individual case report. This includes understanding how a case report is structured, what to look for when reading a case in order to determine its usefulness, and which parts are the most important and relevant to your own matter. The Can Lll Primer focuses on the first of these tasks – how to find cases that may be helpful to your matter. This Primer will help you accomplish the second

• how to read, understand and then evaluate those cases. We have written this Primer because reading and analyzing case reports is very challenging and our goal is to help you to overcome obstacles. Try not to get discouraged if the case report you are reading seems unclear or confusing. Some judicial writing is vague and ambiguous. Some of the “elements” described in Part I might not be present in the case report, or they may be organized in a different sequence. Sometimes important facts will be omitted, making the reasoning hard to follow. The more case reports you look at, the easier it will become to navigate and analyze what you are reading. You will begin to recognize the basic structure and become familiar with the terms and language used. This means that you are on your way to identifying the best cases to use as part of your own arguments to the court. (^1) Pages 11-13 in both the English and French versions of the CanLII Primer.

Part I: Navigating a Case Report

1. What is a case report? When a legal dispute is filed in a court, the judges in that court will make a decision (sometimes a series of determinations and decisions) about that dispute. Many of these decisions are published as case reports. A case report is the written decision of a judge that explains his or her reasoning for resolving a dispute in a particular way. It discusses the relevant legal principles that will generally apply in similar situations. This is why reading earlier case reports can be useful to you as you prepare to present your own argument to the court. 2. Do all case reports describe a trial? No. Often the “parties” (as the sides in a legal case are called) will negotiate and settle their dispute before a full trial. But, in the meantime, there may be case reports on preliminary matters, such as what evidence can be brought forward in the case, what parties are involved, or in which court it should be heard. This means that some case reports you will see will not provide a final decision on the merits of that case, but instead are interim decisions dealing with procedural issues. In other words, they are a procedural ruling , not a final decision on the merits of the case (“trial”). They may provide important background information, but they are not going to help you argue the legal merits of your own case. For that, you will need to find the full trial decision (described below at (3)). These procedural hearings that take place before a trial are called “motions”. A motion is a written request that a party can submit to the court asking the court to make a certain decision. Common examples include a request to change a child support order, a request for an order on costs, a request for an adjournment (to resume trial at a later date), a request for documents from the other side, a request to add or remove a party to the lawsuit, or even a request to strike out the other side’s case (“ summary judgment ”; see NSRLP’s Don’t fixate on a particular word that is unfamiliar or hard to understand – instead work on understanding the overall context and then return to that word when you have finished reading the case report.

The same case report states that the only issue before the judge “at this time” will be to give further directions on security for costs, and to explain the effect of that order. This type of language is an additional clue that this is a procedural ruling rather than a decision following a full trial: Figure 2: Motions example 2 In Figure 2 above, you can see that this is a procedural report rather than a trial decision because of the reference to “motion” and the nature of that motion (“a motion for summary judgment requesting the dismissal of this action ”). Figure 3 shows a response to one party bringing a motion requesting a summary judgment , which is a request asking the court to rule that the other party has no merit to their case. The language of this paragraph helps you to further identify that this is a procedural ruling because it says specifically that this decision will “ not address the information in relation to the specific allegations of discrimination” and that those allegations “will be addressed in the final decision”. Figure 3 : Motions example 3

Compare Figure 4 below with the examples of procedural rulings in Figures 1- 3, above. Figure 4 is a case report following a trial. Unlike a procedural ruling on one component of a case in response to a motion, a case report that is a trial decision addresses the entire lawsuit, including the facts and arguments made. Figure 4 is an example of a trial decision. This particular case report is the decision of a court of appeal ; this case was initially heard by a lower court, and the “losing” party requested the outcome be reviewed by a higher court. ( appeals are discussed in greater detail below under Procedural History (4. f.). Figure 4 : A trial decision

4. What information can you expect to find in a case report? Usually, case reports follow a typical structure. This section aims to help you identify the various parts of the case report and to understand their significance.

Figure 6 : Multi-party civil case caption It is important to note that the caption will appear differently in criminal cases. When a person is charged with a criminal offence, cases are almost always brought by the State, not by private parties. The government becomes a party to the case, and is the first party in the caption. Canadian criminal cases identify the government as the party that is bringing a lawsuit using the Latin words “Rex” or “Regina” (“king” or “queen”, currently “Regina”). In the caption, Regina is abbreviated to just one letter – “R”. So the case caption R. v. Smith (as seen in Figure 7) means that the government is bringing the case (a prosecution) against Mr. Smith (the accused). Figure 7 : Criminal case caption

b. The case citation Usually, the case citation will follow directly underneath the caption, or to the right of it. As you can see in Figure 8, the caption of the case is followed by some letters and numbers which tell you: ● the year of the decision ● the name of the court in which the case was decided ● the “reporter” in which you will also find the case report. The “reporter” is a collection of case reports for that court and that year. This usually includes the volume number (there are often multiple volumes for any given year). In many cases, the “reporter” will be Can Lll. Figure 8 : Case citation In the case of Moore v. Apollo Health & Beauty Care , the case citation includes the names of the parties , followed by 2017 (the year that the case was decided), and then “ONCA” (an acronym for the Ontario Court of Appeal). Different courts across the provinces and territories of Canada are referred to by various acronyms – for a list of some of the most common, please refer to Appendix B. The number “383” is the page number where the decision can be found in the reporter, which here is CanLII. c. The headnote Many case reports also include a headnote , typically located under the citation and before the main body of the case report. A headnote is usually a brief summary of a legal principle or rule discussed in the case report, and a brief summary of the legal issue that the judgment underneath will focus on. A headnote can also include information on legislation or other case reports that are relevant to this case, and whether this case is on appeal.

In Moore v. Apollo (see Figure 10 above), the decision was written by Brown, J. A. or Justice Brown, an Appeal Court judge. If he were a judge of the trial court, he would be described simply as “Brown J.” or Justice Brown. In some case reports you may also see the abbreviation of “C.J.” which stands for Chief Justice. Note that some opinions are authored by multiple judges. e. The facts of the case You are now at the main body of the case report. This part typically consists of the facts of the case, answering the question “what happened?” in the dispute now before the court. You have to keep in mind that not all the facts of a given case are necessarily described in the “facts” section: as a judge authors an opinion, he or she describes the most important facts as he or she understands them, and those considered to be most relevant to the decision that follows. Often, the beginning of the “Facts” section is clearly identified by a heading, as seen in Figure 11. Figure 1 1 : The facts Because the system of precedent requires that courts in the same jurisdiction follow earlier decisions, you will be looking at the facts to see how closely you can relate your own matter to this one (see also Part II(b) below). Don’t get bogged down in the details of a case – you are looking for differences and/or similarities to your own case.

f. Procedural history and appeals Trial decisions often include a procedural history. Whereas the facts of a case (above) describe the events that occurred before the dispute entered the court system, the procedural history describes what happened in the case after it was filed in court. The procedural history of a case may include any motions that have been brought (see the discussion of motions above), earlier preliminary hearings such as case management conferences or settlement conferences, and in the case of an appeal, the earlier, lower court trial decision that is now being reviewed. A case may be appealed when one of the parties files a request to a higher court to review the outcome of that case. When a case is appealed, it is reviewed by a higher court, which can overrule and replace the previous decision, or agree with that decision and thus confirm it. The procedural history of a case will tell you whether the case report you are reading has since been overruled on appeal by a higher court. This is important because you want to establish that this case is still “good law” – meaning, it has not been overruled and replaced. Let’s return to the case of Moore v. Apollo, and the case report of the trial decision in the Ontario Court of Appeal. The procedural history is (typically) given at the beginning of the case report. Here it is described under the heading “Overview”, as seen in Figure 12. The procedural history tells us that this case began in the Small Claims Court, where Ms. Moore, a self-represented litigant, sued her former employer, Apollo Health & Beauty Care. She lost, and is now appealing to the Ontario Court of Appeal. Figure 12 : Procedural history

h. Legal principles and other authoritative sources You are finally reaching the point in the case report where the legal principles behind the decision are discussed! Typically, you will first see a discussion of the general legal principles relevant to the facts of the case. Next, the case will discuss how these legal principles may be directly applied to the facts of the case you are reading. It is the application of these relevant laws to the facts of the case that will determine and explain the case outcome. The legal principles that are relevant to the case may come from several different sources. A judge may use principles that are written in legislation or statutes – laws passed by the Canadian Parliament. A judge may also discuss legal principles and rules that come from common law. Usually, the term common law refers to the body of previous case reports, also known as precedents , that are relevant to this case^2. Finally, an argument may draw on another “authoritative” source; for example, a statement of principles from a professional organization, or from the published writing of a respected jurist. Sometimes the case report will include a lengthy discussion of how a particular legal principle is central to the judge’s reasoning. Let’s return to the case of Moore v. Apollo for an example. Under the heading “Misapprehension of the evidence” (Figure 13, below), the case report addresses one of the issues raised on appeal by Ms. Moore. This was that the judge at her (Small Claims Court) trial “misapprehended” (failed to consider) her evidence. In Paragraph 37 (circled), the judge sets out the relevant law. In the next paragraph (Para 38), he discusses how this legal principle is relevant here, applying the law to Ms. Moore’s case. (^2) For a review of precedent in common law, see the NSRLP CanLII Primer at page 11, 1.2 “System of Precedent”

Figure 13 : Legal principles You can also see that in Paragraph 37 the judge “ cites to ” to the case of R v. Morrissey, an earlier case that discusses the general legal principles governing the misapprehension of evidence. Another heading in the case report reads “Ascertaining whether a self- represented person has abandoned part of her claim” (Figure 14). This provides an excellent example of reference to an “authoritative source” that is neither caselaw nor statute. Figure 14 : An authoritative source The principles the judge refers to here are not found in court decisions. They are the Statement of Principles of Self-represented Litigants and Accused Persons written by the Canadian Judicial Council. The judge explains that this Statement

Also, in a case report of an appeal decision, you will see the following language that tells you what the (new) outcome is: ➢ The Appeal Court may affirm the decision that was made earlier by the lower court. If a decision is affirmed it means that the court finds no error in the decision of a lower court, and agrees with it, coming to the same result. ➢ The Appeal Court may reverse the lower court’s decision. This means that the decision of a lower court is overturned. ➢ Occasionally, the court may remand a lower court’s decision, which means that the case will be sent back to that lower court to be heard again.

Part II: Using a Case Report to Make Your Own Case

Not every case report you read will help you to make your own argument. Once you are familiar with what information is available in a case report, you are ready to start evaluating which cases will help you to make a persuasive argument to the court. a. Understanding precedent The first thing you need to do is review how the system of precedent works in Canadian law. This is a commonsense system, with the decisions of higher courts always “trumping” (if they come to a different decision, overruling) those of lower courts. There is also value in finding a case in the same jurisdiction (province, court) as the one you are applying to. The system of precedent we refer to throughout this Primer is reviewed by the English and French CanLII Primers and you should look at these documents if you need a “refresher”. Don’t get overwhelmed by reading too many cases. Don’t go down every rabbit hole. You don’t have to have every possible precedent – your goal is to find two or three (or even just one) really clear, strong precedents for your own argument.

b. Checking that a case is “good law” If you have found a case in your jurisdiction which you think is similar to your own and will support your argument, you next want to be sure that the case report you are reading is still “good law” and has not been appealed and overruled (see above Part I(f)). If this case was appealed and the original decision overruled (reviewed and changed), it will not help your own argument. Here are some tips for checking whether a case is “good law” in CanLll: (a) Decisions of the Supreme Court of Canada are always the final word on a case – this is the highest court of the country. If the case report you are reading is from the Supreme Court of Canada, rest assured that it is the final word. (b) If the case you are reading is a decision of a provincial Court of Appeal (an appeal court that reviews the original decision by a lower provincial court, for example: the Ontario Court of Appeal in the example above at Figure 12), unless there is a further appeal to the Supreme Court of Canada, what you have is the final outcome of that case. Since January 2006, CanLll links all decisions issued by Courts of Appeal to the appealed lower court decision. As the higher court, the Court of Appeal decision is “good law”, whether or not the appeal judges agreed with the lower court’s decision. (c) If you are still unsure, one way to find out whether there were any further appeals in the case report you are reading is to run a search in CanLll using the name of the case (its caption , explained above in Part I, section 4. a.). Let’s work through an example using the case of Moore v. Apollo. Step 1: Cut and paste the caption into the main CanLll search page. To return to the main search page, click on the large “CanLII” symbol in the top left corner. Figure 1 5 illustrates what you will see.