Cecily Zamora
Case law in Canada is a type of primary law that refers to the written or verbal record of judges' decisions in court. It is also known as judge-made law and is binding in court. Case law records not only the outcome or decision made by the judge(s) but also the reasons for the decision and the sources (legislation, precedents in previous cases, etc.) on which the decision is based. Canada has a 'common law' system, which means that its judges are supposed to follow earlier decisions by other judges. This concept is called stare decisis, or let the decision stand. The Supreme Court of Canada is the highest court in the country and hears appeals in matters of significant public importance. Federal courts include the Federal Court, the Tax Court of Canada, and the Federal Court of Appeal. Each province and territory has its own system of courts that hear cases involving both federal and provincial/territorial laws.
| Characteristics | Values |
|---|---|
| Definition | Case law is the written or verbal record of judges' decisions in courts. |
| Sources | Legislation, precedents in previous cases, etc. |
| Types of Cases | Civil and Criminal |
| Civil Cases | Breach of contract, personal injury, bankruptcy, or defamation suits |
| Criminal Cases | Most criminal offences and family law |
| Court Hierarchy | Supreme Court of Canada, Federal Court, Tax Court of Canada, Federal Court of Appeal, Provincial and Territorial Courts |
| Role of Courts | Resolve disputes, interpret and apply legislation, and common law |
| Precedent | Judges follow the doctrine of stare decisis ("let the decision stand"), following historical rulings of higher judges in the same jurisdiction |
| Case Sources | CanLII, LexisNexis/Quicklaw, Westlaw Canada, HeinOnline's Canada Supreme Court Reports |
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What You'll Learn
Canada's 'common law' system
Canada has a "common law" system, which means that its judges are expected to "follow" earlier decisions made by other judges in similar cases. This is referred to as the concept of "precedent". When a judge interprets legislation in a case, this interpretation becomes the standard for how that legislation is applied in future cases. For example, a judge may interpret a law banning bicycles on major roadways to refer to roads with four or more lanes. This interpretation then becomes case law that determines how the bicycle law will be interpreted in future cases.
Canada's common law system is based on the doctrine of stare decisis ("let the decision stand"), which means that judges are required to follow the historical rulings of higher judges in the same jurisdiction. For instance, decisions made by the Supreme Court of Canada, the highest court in the country, are binding on every other court below it. On the other hand, decisions made by the Ontario Court of Appeal are binding on the Ontario Superior Court but only hold persuasive value for the Supreme Court of Canada.
The role of the courts in Canada's common law system is to resolve disputes between individuals, corporations, or between individuals and the State. These disputes can be civil or criminal in nature. In a civil case, a plaintiff sues a defendant for a specific wrongdoing, such as breach of contract or personal injury. In a criminal case, the State prosecutes an individual for violating the law.
Canada's court system consists of federal courts and provincial/territorial courts. The federal courts include the Federal Court, the Tax Court of Canada, and the Federal Court of Appeal. Each province and territory also has its own system of courts that hear cases involving both federal and provincial/territorial laws. The highest court in a province or territory is typically the Court of Appeal, which deals with the most serious cases and can review the decisions of lower courts.
In addition to the traditional court system, Canada also has administrative boards and tribunals that make decisions on behalf of the government. These bodies are not technically courts, but their decisions can be reviewed by the courts. Examples include the Immigration and Refugee Board of Canada, the Canadian Human Rights Tribunal, and the Ontario Land Tribunal.
Canada's common law system is well-documented, with many decisions available in print or online through case reports and databases such as CanLII (Canadian Legal Information Institute) and Westlaw Canada. These sources provide valuable information on case law, helping individuals understand how the law may apply to their specific situations.
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$36.27
Case law sources and databases
There are several databases that provide access to Canadian case law. Some of the notable ones are:
- CanLII (Canadian Legal Information Institute): CanLII is a free legal information website and a member of the Free Access to Law Movement. It provides access to court judgments from all Canadian courts, including the Supreme Court of Canada, federal courts, and the courts in all of Canada's provinces and territories. CanLII also contains decisions from many federal and provincial administrative tribunals. It is a good source for finding recent Canadian decisions on a particular topic. CanLII now also provides AI-generated subjects for case law from select provinces, with more to be added in the future.
- HeinOnline: This database provides complete coverage of the official bilingual series of the Canada Supreme Court Reports. Cases include background information, statutes and regulations, authors cited, analysis, and the final decision.
- Lexis Advance (US Research System): This database provides access to Canadian case law through its International tab. It includes extensive primary and secondary legal materials from Canada, the UK, the EU, the US, and many other jurisdictions.
- WestlawNext Canada: WestlawNext Canada provides access to Canadian case law through its Browse > International Materials > Canada > All Canadian Cases and Board & Tribunal Decisions path. It also provides the Index to Canadian Legal Literature (ICLL), which offers references to legal journal articles, books, government publications, and other sources that discuss Canadian legal topics.
- Lexum: Lexum is a free database of Canadian Supreme Court judgments.
- Quicklaw Lexis+ Canada: Quicklaw is a Canadian legal research database that provides court decisions from all levels, news reports, provincial and federal statutes, journals, and other legal commentary. It includes a case citator and case digests.
- Westlaw International: Westlaw is a large database of UK, US, and international legal materials, including Canadian case law, legislation, and journal articles.
- VLex Justis: vLex Justis offers access to law reports, transcripts, and legislation from Canada and other countries.
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The role of the courts
Canada has a "common law" system, which means that judges are supposed to follow earlier decisions made by other judges. This means that when a judge hears a case, they will be interested in how other judges have dealt with similar issues in the past. This interpretation of legislation then becomes the standard, setting a precedent for the meaning of this legislation in other cases. For example, a judge may interpret a law banning bicycles on major roadways to define major roadways as any road with four or more lanes. This decision then becomes case law that determines how similar cases will be interpreted in the future.
The Supreme Court of Canada has jurisdiction over disputes in all areas of law, including constitutional law, and consists of a Chief Justice and eight other judges appointed by the federal government. It only hears appeals in matters of significant public importance, and all other avenues of appeal must be used before a case can reach the Supreme Court. The right of appeal is automatic in some instances, such as in criminal cases where a court of appeals judge has dissented on how the law should be interpreted. The Supreme Court can also render advisory opinions when requested by the federal government, especially concerning the interpretation of the Constitution or federal or provincial legislation.
Canada's court system also includes Federal Courts, which hear cases relating to matters under federal jurisdiction such as intellectual property, maritime, and immigration law. Each province and territory has its own system of courts that hear cases involving both federal and provincial/territorial laws, including criminal offences and family law. The highest courts in a province or territory are the courts of appeal, which deal with the most serious cases and can review the decisions of superior and lower courts.
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Civil and criminal cases
Case law in Canada is based on the principle of stare decisis, which means "to stand by that which is decided." This principle gives binding force to the decisions of higher courts on lower courts within the same jurisdiction. Canadian case law can be divided into two main categories: civil and criminal cases.
Civil cases involve disputes between individuals, organizations, or the state, where one party seeks compensation or some other form of redress from the other. These can include contract disputes, torts (civil wrongs), family law matters, and estate litigation, among others. For example, a breach of contract case may involve one party suing another for failing to fulfil their contractual obligations, with the aggrieved party seeking financial compensation for their losses. In civil cases, the burden of proof is generally lower than in criminal cases and is typically based on a "balance of probabilities" standard. This means that the party with the burden of proof must show that their version of events is more likely to be true than not true.
Criminal cases, on the other hand, involve offences against the state, society, or the Crown, and are prosecuted by the state. These include a wide range of offences such as assault, theft, fraud, and murder. For instance, in a murder case, the prosecution must prove beyond a reasonable doubt that the accused committed the crime with the necessary intent or mens rea (guilty mind). The standard of proof in criminal cases is higher than in civil cases, requiring proof "beyond a reasonable doubt." This means that the prosecution must present sufficient evidence to convince the judge or jury that there is no other reasonable explanation for the crime except the guilt of the accused.
The outcomes of civil and criminal cases can vary significantly. In civil cases, remedies often take the form of monetary compensation or specific performance, where the losing party is compelled to fulfil their obligations under a contract. In contrast, criminal cases typically result in penalties such as imprisonment, fines, probation, or community service, depending on the severity of the offence and the criminal history of the accused.
It is important to note that the distinction between civil and criminal cases is not always clear-cut, as some matters can fall into both categories. For example, a case of fraud can be tried as a criminal offence, resulting in imprisonment, but it can also lead to a civil lawsuit where the defrauded party seeks financial compensation for their losses. Additionally, certain cases may have both civil and criminal aspects, such as when a defendant faces criminal charges for assault and the victim also files a civil lawsuit seeking damages for their injuries.
In conclusion, civil and criminal cases form the backbone of Canadian case law, with each type serving distinct purposes and addressing different types of disputes. Understanding the nuances of these two categories is essential for anyone navigating the Canadian legal system, whether as a legal professional, a plaintiff, or a defendant.
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The Supreme Court of Canada
Case law in Canada refers to the written or verbal record of judges' decisions in court. It is one of the two main types of primary law in Canada, the other being government-made legislation or statute law. Case law records not only the outcome or decision made by the judge(s) but also the reasons for the decision and the sources (legislation, precedents in previous cases, etc) upon which the decision is based. It is sometimes referred to as "judge-made law".
The Supreme Court sits in three sessions each calendar year, with hearings taking place in Ottawa. Litigants can present oral arguments from remote locations via a video-conference system, and hearings are open to the public. The court hears two appeals a day, and a panel of nine justices hears most cases. The chief justice of Canada presides, or in their absence, the senior puisne justice.
The Supreme Court hears appeals from the provincial courts of last resort, usually the provincial or territorial courts of appeal, and the Federal Court of Appeal. In some matters, appeals come straight from the trial courts, such as in the case of publication bans and other orders that are otherwise not appealable. The Supreme Court only hears appeals in matters of significant public importance, and permission to appeal must first be obtained from the court.
Decisions of the Supreme Court are available online from many sources, including CanLII and LawSource. The SCC publishes its decisions through this website, which includes all SCC judgments since 1948, and many before that time, including all decisions originating from Ontario and British Columbia back to 1876. The website is searchable by Supreme Court Reports (SCR) volume, date of decision, neutral citation, case name, keyword, and broad subject.
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Frequently asked questions
Case law in Canada is the collection of published decisions of courts and tribunals, which help determine what the law is, alongside government-made legislation. Case law is also referred to as "judge-made law".
Case law is created when judges interpret legislation in a case, and this interpretation becomes the standard for similar cases in the future. Canada has a ""common law" system, which means that its judges are supposed to ""follow" earlier decisions by other judges.
Case law in Canada can be found on websites such as CanLII (Canadian Legal Information Institute), which provides access to case law for federal and provincial/territorial courts and tribunals. Other sources include WestlawNext Canada, LexisNexis/Quicklaw, and Westlaw Canada.
Canadian case law includes a range of cases, such as civil and criminal cases, as well as specialized areas like maritime law, tax law, and military justice.
