Legal research is about learning and understanding the law. Legal research is the process of identifying and recording information necessary to support legal decision making. You can develop a stronger, more convincing case by understanding the law that relates to your case.
In BC, the law includes two elements:
- Legislation: written laws decided by government (for example, the Small Claims Act)
- Case law: decisions made by judges in other cases
Each law has a table of contents to help you navigate its content. This is a great place to start if you are unsure what section of the law applies to your case. You may find that the main legislation that affects your case is the Small Claims Act and the Small Claims Rules.
The second element of the law is case law. These are the previous decisions of judges. Legally, this is when a decision made by a judge becomes the standard for how other judges make decisions. Case law helps to guide judges on how to interpret the law and make decisions in a case.
Imagine there is a law saying: You cannot ride your bike on major roads without a helmet. If the law doesn’t define what “major” roads are, a judge must decide. Now, imagine that a previous judge wrote a decision saying that: Roads with 4 or more lanes are major roads. Other judges making decisions about bike helmets and roads will use this judge’s 4 lane definition to make decisions.
The key to using case law is to be sure to use cases that support your claim. To do this, you need to be able to research past cases. When you are representing yourself in court, this kind of legal research is very important.
Choosing the Right Case
Having the right case law that supports the outcomes you want is very important. There are 4 keys to success for choosing the right case.
You’ll want to take a look at the facts of different cases. You want to find cases that have facts or issues that are similar to those in your case. If you find these cases, you can use them in court and ask the judge to decide your case in a similar way. Present cases where the facts are similar to your case and the decision is the same as the outcome you want.
The Best Outcome
Consider each issue and what you want the court to decide. You need to find cases that relate to the outcomes you want. For example, if you want the court to award you 6 months of pay in lieu of notice after being fired, you will search for cases that awarded around 6 months of pay in lieu of notice.
Select cases where the outcomes of the cases are the same as the outcomes you want. Do not ignore cases where the outcome is not what you want as these could be used by the other party. Try to explain why your case should be decided differently instead.
Consider the level of the court and the location. In Canada, higher level courts can change the decisions made by lower level courts. Decisions from higher level courts are binding on lower level courts - which means they have to follow them. Decisions from the same level of court may be very convincing but do not have to be followed.
The Supreme Court of Canada (SCC) is the highest court in Canada. In BC, the order of the courts from highest to lowest is: the Court of Appeal, Supreme Court and then, Provincial Court.
Ideally you should try to find cases from the BC courts or to the Supreme Court of Canada. If you can’t find a decision from the Supreme Court of Canada or from a BC court, you can search courts from other provinces. However, decisions from different provincial courts are not binding on BC courts. Those decisions may or may not be followed.
When searching for case law, select decisions from the courts in this order:
- Supreme Court of Canada
- BC Courts: Appeal, Supreme, Provincial Court
- Courts from other provinces (higher is better)
The date of the decision is the final consideration when selecting cases. Keep in mind that each of the other three points is a higher priority than this one.
What happens if you find two decisions from the same level of court with similar facts and outcomes? Look at the date. Select cases where the decision is most recent. A judge will consider a decision from last year more than a decision from the 1990s.
Make sure the decision hasn’t been overturned. When a decision is overturned, it means that a court has ruled that the decision is no longer followed by other courts. Over time, our society changes and so does the interpretation of laws. Be careful when using any case that is more than 20 years old. The law may be out of date and the interpretation of the law may have been overturned.