2. Legal Research

Legal research is about learning the law and understanding how the law applies to your case. It is important to understand your legal rights. A judge can only give you what you are entitled to under the law. By knowing the law, you will have a better idea of what orders a judge might grant you and you can develop a stronger, more convincing argument for your trial or hearing.

It is important to know your legal rights and what you are entitled to under the law so that you can ask for it. It is equally important to understand your legal obligations.

The law includes two elements:

1. Legislation: written laws passed by government (e.g. the Bankruptcy and Insolvency Act).
2. Case law: decisions made in other cases

Finding the law

A judge may use both legislation and case law to decide your case. You will want to use the law to support your position and convince the judge to decide in your favour. This means you will need to have a basic knowledge of how to research legislation and case law.

First you will want to see what the legislation says about your legal rights. In Canada, laws about some things (like criminal law) are made by the federal government; laws about other things (like minimum employee rights) are made by provincial and territorial governments. All federal and provincial legislation can be found for free online, usually through a government website. Go online and search for legislation and the name of your jurisdiction. Select a government website. If you are looking for a federal law, they are found on the Justice Canada website. Each law (or Act) has a table of contents to help you navigate its content. Generally speaking you will be able to find all of the legislation and case law that you require at canlii.org at no cost.

For example, if you go to the Table of Contents of an Act you can see that it is divided into different parts, divisions, and sections.

In most cases there is a definition section under Part 1. This is a great place to go when you are not exactly sure what a word means. Words that we use every day may have a different meaning under the law. So, it is a good idea to check the legal definition in Part 1.

Understanding the law

Now that you know how to find specific laws, you need to gain some skill to read the law. Generally speaking, in the past, laws were not always written in a way that is easy to understand (but this is changing). The older the law is, the more likely it is to be hard to read. Lawyers are trained to read and understand the law. You do not need to become an expert at reading law, but if you are representing yourself, you need to be able to understand the laws that apply to your case.

For example:

Let us say there is a law that states:

Only fruit stands registered with the city can sell class 5 fruits.

To understand this better, you will need to look up how class 5 fruits are defined. Imagine the law states:

Class 5 fruits are any fruit grown in America or Mexico and imported legally into Canada.

Now if you want to sell mangos at your fruit stand, how can you use the law to prove your case?

To help build your case, it is useful to use a worksheet like the “Applying the Law” Worksheet. Putting information into each column in the table will help you pull all of the important information together.

Under the ‘Law’ column, you would enter the sections of the law about registered fruit stands. Under ‘Facts,’ you will describe important points about your situation – that you have a fruit stand which is registered with the city, and what you sell there.

Finally, in the last column you need to state how the law applies to the facts of your case. Think of this column as the argument or conclusion to the first two columns. When you apply the law to the facts, what argument can you make about your legal right to sell mangos at your fruit stand?

As you can see, it takes time to find the right law, to understand the law and then to apply the law to your situation. Using the Applying the Law Worksheet can help. In the next section, you can use the worksheet to apply the law to your case. Use this example as a reference to help you.

 Download the Worksheet

Complete this worksheet to help build your case. Under “Law”, write the laws that apply to your case, if any, (note the section and summarize the law). Depending on your key issues and the amount of conflict, you may need to refer to several laws.

Under “Facts”, write the facts in your case that relate to the law. In the last column, combine the facts and the law to show how the law applies to your situation. Think of this as the argument or conclusion to the first two columns. When you apply the law to the facts, what argument can you make about your legal right? Complete the worksheet below, based on your case.

Laws can be interpreted in different ways. A judge must decide how to interpret the law. Their decision becomes “case law”. Case law helps to guide judges in a later case on how to interpret the legislation and make decisions.  Some cases (often from an appeal court) become important because they set the standard for how legislation or facts are to be interpreted. The legal term for this is “precedent”. Legally, this is when a decision made by a judge, becomes the standard for how other judges make decisions related to a certain area of law. As you can see, using case law to support your case can help the judge understand how to interpret the law in your favour. Cases with facts similar to yours may be more helpful to you. To do this, you need to be able to research past cases. When you are representing yourself in court, this kind of legal research can be important.

If you are able to find a recent case from your jurisdiction where the situation is like yours and the decision is the same as the one you want. Providing this information to the judge may be very persuasive and will help support your case.

At the same time, it is important not to ignore cases that clearly do not support the outcome you want. There is a good chance the other person or their lawyer will use those cases. You need to be able to say why those cases do not apply in your situation (e.g. by showing that the facts are different from your case). If you are finding lots of cases that do not support the legal argument you are making, you might wish to reconsider your position and think about settlement.

Choosing the right case

Before you start your research, you have to know what you are looking for. There are 4 keys to success for choosing the right case:

1. Similar facts
2. Best outcome
3. Court
4. Date

1. Similar facts: You want to find cases that have facts or issues that are like 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 like your case and the decision is the same as the outcome you want.
2. Best outcome: You need to find cases that relate to the outcome you want. For example, if you want the court to award you damages, you will search for cases that awarded damages to an applicant. Select cases where the outcomes of the cases are the same as the outcomes you want. However, you can’t ignore case decisions that are not in your favour. Think of ways that your case is different than, and can be distinguished from, decisions which are not in your favour.
3. Court: The next most important consideration is the level and location of the court. Decisions of higher-level Canadian courts are more influential than decisions made by lower-level courts. Decisions from an appeal court, are binding on lower-level courts. Decisions from the same or lower-level court may be persuasive – they could help convince a judge to decide the same way, but the judge is not required to decide the same way.
   
   The Supreme Court of Canada (is the highest court in Canada. Each jurisdiction (province or territory) in Canada has its own lower-level courts. Usually these courts are broken down into the Court of Appeal (the highest court in each province or territory), a superior trial court and, Provincial or Territorial Court (the lowest court in each province or territory). If you cannot find a decision from the Supreme Court of Canada or from a court in your jurisdiction you can search courts from other provinces. Decisions from different provincial courts may be persuasive, but they are not binding on courts outside that province. Sometimes the legislation in other provinces that apply to facts like yours may be different than the legislation in your province and the decisions from courts in those provinces will therefore be less persuasive. Those decisions may or may not be followed.
   
   When searching for case law, select decisions from the courts in this order:
   1. Supreme Court of Canada.
   2. Courts from your jurisdiction in order of importance: appeal, superior trial court, provincial / territorial court.
   3. Courts from other provinces (in order of: appeal, superior trial, provincial / territorial court).


4. Date: 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, or a case which is referred to in many subsequent decisions. A judge will put more weight on a decision from last year than on a decision from the 1990s.
   
   Also, make sure the decision has not been overturned on appeal. The process of checking to see if a case has been overturned on appeal is called “noting up”. When a decision is overturned, it means that an appeal court has ruled that the decision is no longer good law. Over time, our society changes and so does the interpretation of laws. When using any case that is more than 20 years old, be very careful to research its current applicability. The case law may be out of date and the interpretation of the law may have been overturned.

Where to find case law

When you go about doing your research, be sure to use the resources within your community. Courthouse libraries are often able to help you locate case law. There are also online databases where you can search for cases. As indicated earlier, a good free online case law database is CanLII. See Section 13: Resources for more information.