Judicial System

Overview of the Judicial System

2.1 The Judicial System

In simple terms, the judicial systems of most modern countries are made up of three levels of courts:

• 1st level (trial court): At this level, one judge hears the evidence and makes a ruling, sometimes giving written reasons. Evidence is given by “live” witnesses at trial, and by affidavit at pre-trial motions. Example : Ontario Superior Court.
• 2nd level (appeal court): There is an appeals court for every state or province in a nation, which hears appeals from trial court decisions within that state or province. This court usually sits with a 3-member panel of judges. An appeals court can reverse, uphold or modify the ruling of a lower court, or it can order that the case be returned to the court below for a re-trial. It is sometimes necessary to obtain permission to appeal to this level of court. Example : Ontario Court of Appeal.
• 3rd level (national supreme court): This level of court usually sits as a panel of 5, 7 or 9 judges, depending on the type of appeal. A supreme court hears the limited number of appeals that raise new or contentious points of law. Example : Supreme Court of Canada (Ottawa)

Upon closer examination, the structure of the court system becomes more complicated. Many jurisdictions have several trial courts, often including a small claims court (for matters involving small amounts of money), a family court and a provincial criminal court. Many jurisdictions also have an intermediate appellate court to screen cases going to the Court of Appeals. In Ontario, this function is fulfilled by the Divisional Court.

In Canada, the federal and provincial governments share jurisdiction over the courts. Pursuant to s. 92, para. 14 of the Constitution Act, 1867 (formerly known as the British North America Act, 1867 or BNA Act), the provinces have jurisdiction over the “Administration of Justice in the Province, including the Constitution, Maintenance and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including procedure in Civil Matters in those Courts.” As such, the provinces administer trial level and appellate courts. Appeals from the provincial appellate courts are heard by the Supreme Court of Canada in Ottawa.

Pursuant to ss. 96-101 of the Constitution Act, 1867 , the federal government has the power to appoint judges to the superior courts of the provinces and to establish a federal court system. The federal court system consists of a trial division and a Court of Appeal, with the highest level of appeal being the Supreme Court of Canada. The federal courts have offices in major cities across the country. The majority of lawyers do not regularly appear in federal court since it only hears matters falling under federal jurisdiction, such as copyright actions, maritime law and actions against the Crown.

In simple terms, the U.S. judicial system is similar to the Canadian system. There are multi-level state courts, and a multi-level federal court that hears cases not falling within state jurisdiction. The national Supreme Court is the final court of appeal for both state and federal cases.

In England, the judicial system is more unified, since there are no provinces or states with separate, parallel court systems. The highest appellate court for hearing appeals of English cases is the House of Lords. The bar in England is still divided, meaning that a lawyer is either a barrister (a court lawyer) or a solicitor (not a court lawyer), although this division may soon disappear. In Canada, all lawyers are barristers and solicitors and no licensed Canadian lawyer is prohibited from practising before Canadian courts.

2.2 The Trial Process

Legal issues are framed by the parties to the dispute: the plaintiff and the defendant. In Commonwealth jurisdictions, the judge serves as a neutral arbitrator who is charged with hearing the evidence of witnesses and then using that evidence to decide the outcome of the case. Juries are used with decreasing frequency in Canada, but where a jury is involved, jurors become the deciders of fact. There is often less need for a judge to issue written reasons when a jury is involved.

Case law usually develops in one of two ways:

• A judge issues a written ruling based on an interlocutory or pre-trial dispute between the parties. Such disputes are generally procedural in nature, and could rest on whether a party is properly named, whether the pleadings (court papers) disclose a proper cause of action, or whether a party must disclose certain documents to the other side . Carswell’s Practice Cases(C.P.C.) is a good example of a reporter series that publishes these types of decisions.
• A judge issues a written ruling after a trial has finished. In such cases, substantive law – rather than procedural law – is at issue. Subject to an appeal, the judge’s ruling is binding on the parties and may affect their legal rights. Common examples of such cases include a dispute over whether a party can collect damages, or a dispute over whether an accused is guilty of a criminal offence.

2.3 The Appeal Process

A party to a lawsuit generally has a right to appeal the decision of the trial judge. There is usually a short period of time in which to file the appeal (30 days in most cases). On an appeal, witnesses usually do not re-testify; instead, evidence is read into the record using a transcript of the trial. In order to limit the number of cases that are appealed, some restrictions are placed on the availability of the appeals process. For example, in order to prevent one side to a dispute from prolonging a case unnecessarily, more restrictions are placed on appealing interlocutory decisions. In contrast, there are conditions under which an individual convicted of a criminal offence can appeal as of right.

It is currently quite difficult to appeal from a provincial appeals court to the Supreme Court of Canada, due to the high volume of cases in the court system. The Supreme Court of Canada usually hears matters of national significance or issues that have produced conflicting decisions in the provincial appeals courts. The government is also allowed to ask the Supreme Court of Canada to answer legal questions on a “reference.” Recently, the federal government “referred” the question of whether the province of Quebec could legally secede from Canada to the Supreme Court.

You should note that, prior to 1949, it was possible to appeal a decision of the Supreme Court of Canada to the Privy Council in London England. While in Canada this avenue of appeal no longer exists, in some Commonwealth countries the highest appellate court remains the Privy Council.

2.4 Stare decisis / judicial precedent

Unlike the legislative process, which employs a systematic, formalized method of rule making, case law develops organically. The common law – judge-made law developed over a period of time – is grounded in the doctrine of stare decisis. Stare decisis requires a judge to follow the ruling of another judge of the same, or higher, court on the same issue. In this manner, new case law is often derived from existing legal principles. The requirement of stare decisis ensures a measure of security and stability in the development of the common law, since it prevents judges from making ad hoc decisions.

As a result of stare decisis , which is also known as judicial precedent, it is important for lawyers and law librarians to find “like” cases – cases from the past dealing with issues similar to the facts at hand. Ideally, a lawyer is hoping to find “like cases” which were decided in a manner that would be favourable to the lawyer’s client.

Under the doctrine of stare decisis , the rulings of different courts in different jurisdictions have different precedential value. Decisions of the higher courts bind the lower courts. The Supreme Court of Canada is the highest appellate court in Canada, and its decisions bind all other courts in the nation. However, the decision of a provincial appeals court only binds the other courts in that province. Hence, an Ontario lawyer is less interested in a P.E.I. appeals decision than an Ontario appeals decision dealing with the same issues. While the P.E.I. decision – rendered, as it was, by a high-level court – has much persuasive value, it is not necessarily binding on an Ontario judge.

When researching case law you must always be sensitive to the desirability of finding court decisions from the appeals court of your province, or from the Supreme Court of Canada. However, since some provincial laws (such as securities regulations) do not differ much from province to province, decisions from other provinces may have relatively strong precedential value. This is especially true if the issue stems from a federal statute, such as the Criminal Code , since federal statutes apply across the country. Moreover, occasionally it is not possible to find case law from the desired courts. In such a case, it may be necessary to resort to case law from other provinces, or even other countries.

2.5 How Case Law is Published

A judge usually keeps notes of the evidence produced and the arguments made during trial. Generally, at the trial level a judge simply makes a ruling after the arguments are completed, without giving detailed reasons or a written judgment. A notation called an endorsement is made in the court file, indicating the ruling of the trial judge. In some cases, the judge will “reserve” his or her reasons. This means that the judge needs more time to think about his or her decision. Reserved reasons, when given, may be oral – a simple explanation in open court of how the judge has ruled. In cases where the reasons may be of interest to other parties – where there has been a complicated point of law argued, or where the case is likely to be appealed – the judge will issue written reasons.

If a case raises an important point of law, a publisher will publish the judgment in a “case reporter.” Publishers select cases for publication based on their importance to an area of law or jurisdiction. Most publishers also provide a summary of the facts of the case and the ruling of the court, and create subject indices for easy reference to similar cases within the publication. In Canada, some of the more well known national-coverage case reporters include the Supreme Court Reports (S.C.R.), the Federal Court Reports (F.C.), the Dominion Law Reports (D.L.R.) and the Western Weekly Reports (W.W.R.). Other reports can be found by region, like the Ontario Reports (O.R.), or by topic, like the Canadian Cases on Employment Law (C.C.E.L.).

Most, if not all, Canadian courthouses have agreed to release to QUICKLAW all their judgments, in digital form, for publication on the QUICKLAW databases. There is little post-editing of these electronic judgments. QUICKLAW also has agreements with other publishers to post their published case reporters online, with headnotes included. However, in late 1998 Carswell chose to withdraw most of its data from QUICKLAW so that it could post the data on its own online subscription service, callede Carswell.

2.6 Anatomy of a Case Report

The principal features of a case report have been identified using a sample case: Budai v. Ontario Lottery Corp. (see )below . The features are outlined below:

1. The style of cause , which names the parties to the dispute. The name of the plaintiff appears first.
2. The name of the court in which the case was decided.
3. The name of the presiding judge or judges .
4. The date of the judgment . Note that this is not the date on which the case was heard, nor is it the date on which the report was published. It is the date that the judgment was handed down by the court.
5. The catchwords or keywords , which classify the issue or issues involved in the case. There may be more than one set of catchwords for each case. These catchwords generally serve as headings in the subject-matter index to the report series.
6. The headnote , written by the editors of the law report. This is a brief annotation or summary of the case. The headnote is not part of the decision of the court, and should not be relied upon as an authoritative statement of law or of fact.
7. A list of the authorities referred to in the judgment. This list generally includes other cases, statutes, regulations, and academic literature.
8. A statement of the history of the case to date .
9. The names of counsel representing the parties.
10. The name of the judge delivering the decision and his or herjudgment .

Note: Occasionally the editor includes a note about a subsequent appeal of the case, or a reference to a relevant case.

[1] BUDAI v. ONTARIO LOTTERY CORP.

[2] Ontario High Court of Justice, Divisional Court , [3] O‘Leary J. January 20, 1983. [4]

[5] Torts-Negligent misstatement-Plaintiff wrongly informed that he had won lottery prize – Plaintiff spending money to celebrate – Whether defendant liable for prize or for money spent.

[6] The plaintiff was, because of a computer error, wrongly informed by the defendant that he had won $835.40 in a lottery. He spent $480 U.S. in an evening’s celebration, but was .informed the next day of the error. An action for the $835.40 succeeded at trial. On appeal to the Divisional Court, held, allowing the appeal in part, the plaintiff had not, by the rules of the lottery, won the prize. However, the defendant was liable for negligently misinforming him, the extent of the liability being the money lost by the plaintiff in reliance on the misstatement, in this case $480 U.S…

[7] Statutes referred to

Ontario Lottery Corporation Act, R.S.O. 1980, c. 344

Rules and regulations referred to

O. Reg. ’51/75, s. 9 (now R.R.C. 1980, Reg. 719, s. 8)

[8] APPEAL from a judgment in favour of the plaintiff in an action for a lottery prize.

[9] K. C. Cancellera, for appellant, defendants, Ontario Lottery Corporation .

Robert Roth, for amicus curiae.

No one appearing for respondent, plaintiff, Jim Budai.

[10] O’LEARY J.:-This appeal involves the question of the right of the purchaser of a lottery ticket who has been incorrectly and negligently told by the lottery operator that he is a winner, to collect from that operator some or all of the amount he was incorrectly told he had won where, prior to learning of the error he has squandered part of his expected winnings.

The appeal is brought by the defendant, Ontario Lottery Corporation, from the judgment dated February 29, 1980, of His Honour Deputy Judge D. Ceri Hugill, wherein he awarded the plaintiff the sum of $835.40. The plaintiff, at a cost to him of $7, in effect purchased seven tickets on a lottery operated by the defendant.

2.7 Finding Case Law

The chapters in this handbook covering Canada, the United Kingdom and the United States, respectively, discuss in some detail the resources available to find case law. A brief overview of those resources is provided below.

Legal textbooks provide access to case law, since authors generally refer to important cases that illustrate the points of law they are discussing.

Legal digests, which are arranged by topic, provide summaries of important cases. They also provide citations to full-text reports of these cases. Each of the jurisdictions emphasised in this handbook has a digest that is considered pre-eminent within the jurisdiction.

Canada: Canadian Abridgment United Kingdom: The Digest United States: West’s Digest System

Legal encyclopedias , which are also are also organised by topic, are comprised of articles or paragraphs that synthesise and comment on specific points of law. Entries are accompanied by citations to cases that support the principles discussed. Each of the three jurisdictions emphasised in this handbook has an encyclopedia that is considered pre-eminent within the jurisdiction: Canada:Canadian Encyclopedic Digest (C.E.D.) United Kingdom: Halsbury’s Laws of England United States: Corpus Juris Secundum
Case reporters contain indices that provide access to the reporters by subject and case name. To find cases dealing with insurance law, for example, one could search the indices to the Canadian Cases on the Law of Insurance (C.C.L.I.), which would provide access to a limited number of cases on topic.

Online legal resources , which allow for keyword searches by subject or by case name, are an excellent means of finding case law.

2.8 Noting Up Case Law

Once a case is published – whether in print or on an electronic database – two things may happen. First, the case may be appealed. Second, the case may be used as a precedent or may be criticized in subsequent court decisions. Since such developments can affect whether cases are still considered “good law,” those conducting legal research must always “note up” the cases they find.

Noting up the judicial history of a case means determining how the case was treated on appeal. Noting up the judicial treatment of a case means determining whether, and in what manner, the case has been considered in subsequent decisions.

Determining the judicial history of a case is important because when a case is overturned on appeal, the lower court decision that has been overturned is of little or no precedential value. A lawyer relying upon such a case stands to be greatly embarrassed in court.

The judicial treatment of a case is equally important, since the number of times a case is considered may indicate the strength of the case. A case that has been considered in a large number of subsequent judgments is likely to be important. Note, however, that the fact that a case has had no subsequent treatment does not mean that the case is unimportant, or of questionable precedential value. Many relevant cases have no judicial treatment.

Determining the judicial treatment of your case is important since it may lead you to other, more recent, cases relevant to your research. Noting up for judicial treatment is a way of searching for a “chain” of related cases. In this way, it is often possible to see how a particular legal principle has evolved over time.

There is always a possibility that judges may subsequently look upon a case with disfavour, due to developments in the law. It is therefore extremely important to know how a particular case has been treated.

How to Note Up a Case

The techniques for noting up case law are relatively similar in Canada, the U.S and the U.K. The United Kingdom is the jurisdiction with the least-developed system for noting up case law.

There are several methods for noting up case law:

Citators

There are print publications available in Canada (Carswell’s Canadian Case Citations ) and the U.S. (Shepards ) whose sole purpose is to provide the judicial history and judicial treatment of case law. There is no British publication that provides exhaustive treatment – The Digest, for example, provides very minimal judicial history or treatment.

In Canada and the U.S. there are online equivalents of the print citators. QUICKLAW’s QuickCite database (QC) provides online updating services, and Carswell’s Canadian Case Citations is available one Carswell and on CD-ROM. In the U.S., Westlaw’s online citator is called Key-Cite, while Lexis-Nexis provides an online version of the Shepards citator.

Tables of cases judicially considered

There is a section in the indices of most print reporters called “Table of Cases Judicially Considered.” It is an alphabetical list of the cases published in the reporter that have judicial histories or treatment.

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This entry was last updated: April 22, 2016