Legal research is about learning and understanding the law. A judge can only give you what you are entitled to under the law. And they can grant you relief if you have asked for it. You can develop a stronger, more convincing argument by understanding the law.
In BC, the law includes two elements:
First thing’s first, you’ll want to see what the legislation (that’s the written laws such as the Divorce Act) says about your legal rights. All laws in BC can be found online at www.BCLaws.ca. For federal laws see Justice Laws Website.
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.
Now that you know how to find specific laws, you need to gain some skill to read the law. Generally speaking, laws are not written in a way that is easy to understand. Lawyers are trained to read and understand the law. You don’t 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.
Consider this example:
Situation: You’ve moved from your rental place and are wondering how to get your security deposit back.
Law: Residential Tenancy Act s 39 : Despite any other provision of this Act, if a tenant does not give a landlord a forwarding address in writing within one year after the end of the tenancy,
(a) the landlord may keep the security deposit or the pet damage deposit, or both, and
(b) the right of the tenant to the return of the security deposit or pet damage deposit is extinguished
To understand the law better, try to break it down into simple parts. Like this…
The tenant must give the landlord their forwarding address
a) In writing, and
b) Within one year of their tenancy ending
If they do not do so,
a) The landlord may keep the deposit, and
b) The tenant no longer has a right to the deposit
Use the Applying the Law Worksheet. Putting information into each column in the table will help you pull all of the important information together.
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
There are 4 keys to success for choosing the right case. Below, they are numbered in order of importance.
1)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 more than half the value of the family vacation home, you will search for cases that awarded more than half the vacation home to an applicant.
This is the most important criteria for choosing the right case. Select cases where the outcomes of the cases are the same as the outcomes you want.
Next, 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 next most important consideration is the level of the court and the location. In Canada, higher level courts can change the decisions made by lower lever courts. Decisions from the same, or a higher-level court, are binding on lower level courts.
The Supreme Court of Canada (SCC) is the highest court in Canada. In BC, the order of the courts is: the Court of Appeal, Supreme Court and then, Provincial Court. 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:
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.
Also, make sure the decision hasn’t been over-turned. When a decision is over-turned, 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 over-turned.
Do the Case Law Worksheet to help you research case law for your case. Having the right case law that supports the outcomes you want is very important.
IMPORTANT: This page provides legal information, not legal advice. If you need legal advice consult a lawyer.
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