• LexisNexis Quicklaw
• Westlaw Canada
• Print Sources

INTRODUCTION

Case History

Researchers not only have to find cases on point but also have to determine if those cases are still good law--in other words, to determine whether or not the case has been overruled or reversed by a higher court since it was decided. Even if the case hasn't been overturned, though, researchers might want to determine what the courts have been saying about the case. For example, is the case controversial for some reason? Have other courts been going out of their way to distinguish their case from this case, or has it been accepted as a matter of course?

One way of determining the history of a case is via case citators. Electronic sources such as Quickcite on LexisNexis Quicklaw and KeyCite on Westlaw Canada (which combine both "Case History" and "Cases Judicially Considered" information) provide this type of information as well as a list of parallel citations for each court level. There are also equivalent print case citators such as the Table of Cases or Cases Judicially Considered. For further information on using the Canadian Abridgment Table of Cases in print form, see "Finding Citations for Case Names" in the chapter on Legal Citation at http://library.queensu.ca/law/lederman/legalcitation.

Cases Judicially Considered

A "judicially considered" case refers to a decision which has been in some way mentioned, followed, overruled or discussed by a later case. After conducting some initial research on a topic, it is likely that a researcher will come across at least one relevant leading case. One of the next steps, then, is to locate cases which have judicially considered that case. Searching for this judicial consideration should yield references to similar cases and to more recent cases which will provide some understanding of how the law has developed. In addition, these results will reveal just how helpful the original case will ultimately be. In preparing a legal argument or submission it is imperative to "note up" a case in this manner to be sure that a proposed legal argument is not weakened by more recent jurisprudence.

Citators assign a treatment level which indicates to what extent and in what manner a case "considered" the former case and often assign detailed treatment levels such as applied, approved, considered, mentioned, disapproved, discussed, distinguished, explained, followed, referred to, or overruled. Refer to the tables below which provide explanations of the coding systems used by different citators. Though the treatment codes serve as a useful guide, looking at each case directly is the only way to fully understand the extent to which a case was considered.

• Cases citators can produce long lists of cases.  You would normally only read the significant cases that considered your case: for example, appellate cases, cases from your jurisdiction, and cases that either distinguished or did not follow your case.
  
• Described below are different sources for finding cases judicially considered. There is substantial overlap in these sources, but each also includes unique cases. To be absolutely thorough, a researcher would want to check both a print source like the Canadian Abridgment Case Citations and an electronic tool. The print sources contain cases not found in either Westlaw Canada or LexisNexis Quicklaw.

SOURCES FOR CASES JUDICIALLY CONSIDERED

A. LexisNexis Quicklaw

QuickCite

(a) Note up a case name or citation:

i. In the "Find a Document" area, choose "Note up a Case with Quickcite."
ii. Enter the case name or citation.

(b) Note up a case displayed on the screen:

i. Click on the Quickcite treatment icon (to the right of the case citation)
OR Click on "Note up with Quickcite."
ii. The note-up screen displays the History of the Case, a Summary of Judicial Considerations (by treatment), and then the cases themselves. The cases are fully linked, which enables you to go directly to any cases of interest.

(c) Search for Judicial Treatment of a case in a full-text case database:*

*This method is imprecise and should only be used when the other methods do not work. It is best for new cases that may not yet have their judicial treatment entered into Quickcite or for unreported cases that may be mentioned in other cases but are not themselves available on LexisNexis Quicklaw.*

i. Enter the name of the case in quotation marks as a search term (so it is considered as a phrase) in a case law database, such as All Canadian Court Cases (the default under the "Court Cases" tab).
ii. Add a date restriction. Under "Specify Date," choose "Date is after" and enter the date of your decision (You don't want any cases from before your decision is released, since you're trying to find cases referring to that decision).
iii. Your results will include any mention of the case name you selected. You will need to check your results to make sure they are not referring to a different case of the same name.

Negative Treatment Icon
The case has negative history (judicial review allowed, reconsideration allowed, reversed, quashed, or varied by a higher court) or negative treatments (not followed or questioned by a subsequent court).

Neutral History or Treatment Icon
The case has neutral treatments (mentioned, explained, or cited in a dissenting opinion) or the case has history (abandoned, abated, leave to appeal granted, reconsideration denied, related proceeding, same case, or supplementary reasons by a subsequent court), but the citing court does not comment on the case.

(from www.lexisnexis.com)

Case Treatment

The following terms are used to indicate what sort of judicial treatment a case has received from subsequent citing cases:

Distinguished - The cited case is held to be inapplicable because of a difference in fact or law.

Explained - The citing case adds to, expands upon or interprets the cited case. The cited case is not decisive but it is given some kind of consideration.

Followed - The citing case in a majority or plurality opinion applies a principle of law from the cited case. The judge expressly relies on the cited case as a precedent on which to base a decision.

Followed in minority - The citing case, in an opinion other than a majority, plurality, or dissent applies a principle of law from the cited case.

Dissenting (cited in) - The case is cited in a dissenting opinion within the citing case.

Mentioned - The case is cited with no explicit treatment. The citing case provides no more information about the cited case than what was available in the cited case itself.

Not followed - The citing case overrules or refuses to apply the cited case for some reason other than it was distinguishable.

Questioned - The citing case criticizes the conclusion or reasoning of the cited case, without refusing to follow it. Alternatively, legislation in force at the time the cited case was decided has been amended to the extent that the cited case might have been decided differently under the amended legislation.

Case History

Cases that have a history relationship with each other involve the same parties, the same facts, or the same litigation. The following terms are used to describe history relationships:

Abandoned - The appeal is withdrawn by one of the parties, or both, or by the court for failure to actively pursue the appeal.

Abated - The issue has become moot, for example when one of the parties dies.

Affirmed - The appeal is dismissed, whether or not the decision of the court below is expressly affirmed.

Jud. Review Allowed - The Court grants an application for relief from an administrative decision.

Jud. Review Denied - The Court refuses an application for relief from an administrative decision.

Leave Granted - The citing decision allows leave to appeal.

Leave Refused - The citing decision refuses leave to appeal.

Quashed - The lower court decision is set aside on the basis that the lower court had no jurisdiction to decide the matter before it.

Reconsid. Allowed - The court or board grants a request to amend or reverse its original decision.

Reconsid. Denied - The court or board refuses a request to amend or reverse its original decision.

Related Proceeding - The citing decision refers to an earlier proceeding arising out of the same facts and involving the same parties.

Reversed - The appeal is allowed whether or not the higher court sends the matter back for further adjudication.

Same case - A history relationship exists, but the citing court does not affirm, reverse, vary, or quash the decision that was cited.

Supp. Reasons - The citing decision arises from issues raised in the initial decision, such as costs, sentencing, damages or further liability. They will often be contained in a corrigendum or an addendum.

Varied - The lower court decision is affirmed or reversed only in part.

B. Westlaw Canada

KeyCite

(a) Note up a case name or citation:

i. In the "Find/Keycite a Document" area, select "KeyCite."
ii. Enter the case name or citation

(b) Note up a case displayed on the screen:

i. Click on the KeyCite icon (flag, "C," or "H") to the left of the case name
OR On the "Related Info" tab to the left of the case, select "Full History" and "Citing References" to find all the information.

(c) Search for Judicial Treatment of a case in a full-text case database:*

*This method is imprecise and should only be used when the other methods do not work. It is best for new cases that may not yet have their judicial treatment entered into Keycite or for unreported cases that may be mentioned in other cases but are not themselves available on Westlaw Canada.*

i. Enter the name of the case in quotation marks as a search term (so it is considered as a phrase) in a case law search template, such as "Cases."
ii. Add a date restriction. From the Search Cases Template, click on "Terms and Connectors Search." From this screen, you can choose "After" in the "Date" field, and then enter the date of your decision. (You don't want any cases from before your decision is released, since you're trying to find cases referring to that decision)
iii. Your results will include any mention of the case name you selected. You will need to check your results to make sure they are not referring to a different case of the same name.

Case Treatment Indicators

The following symbols give an indication of the impact subsequent decisions have had on it:

The case may not be good law: the decision has been reversed or has not been followed within the same jurisdiction or by the SCC.

The decision has some negative history or treatment but has not been reversed or overruled.
A yellow flag is also displayed if a treatment has been recently added, and has not yet been editorially analysed.

The decision has some direct history but it is not known to be negative history.

The decision has no direct history, but there are treating cases or other citing references to the decision.

(from http://ecarswell.westlaw.com)

Case Treatment

The following terms are used to classify how a subsequent case relates to the case being noted up:

Recently Added - Cited case discussed in decision(s) recently added to the service. (Temporary designation)

Followed - Principle of law in cited case adopted or decider's reasoning applied.

Distinguished - Cited case inapplicable because of difference in facts or law.

Not Followed - Cited case expressly overruled, not applied or judged to be bad law. Some consideration given to cited case.

Considered - Some consideration given to cited case.

Referred To - Cited case being referred to without comment.

(from http://ecarswell.westlaw.com)

Case History

Westlaw Canada outlines the case's history. This is also available in a graphic view (from the sidebar) to illustrate the case's progress through court levels.

Other Citing References

Westlaw Canada also lists sections of statutes and secondary sources (such as articles) that directly relate to the case being noted up.

C. Print Sources

• (1) Canadian Abridgment Canadian Case Citations (most comprehensive source)
• (2) Individual Law Report Indexes

(1) Canadian Case Citations (CCC)

Canadian Case Citations, a component of the Canadian Abridgment, is the most widely-known print source for locating judicial consideration of cases in Canada. The Canadian Case Citations volumes are usually shelved near the rest of the Abridgment. The set consists of hardcover volumes accompanied by soft-cover supplements to each volume and to the set as a whole. Cases throughout the CCC are arranged in alphabetical order. The general method of using the CCCs is to locate a case in the appropriate hardcover volume and update it by using the corresponding soft-cover supplements.

Each entry in the CCC starts with the case name entry followed by one citation or sometimes by a list of parallel citations. The case history information is next, followed by Citing References. The table below provides a complete list of the "history terms" used in Canadian Case Citations:

Treatment Symbols

Following the case history information, Canadian Case Citations gives a list of cases that have considered that decision. Every citation in this list is preceded by a circled letter that indicates the treatment the original case received. These letters allow a researcher to focus on only those specific cases needed. Refer to the following table for a complete guide to the treatment codes used by the CCC:

(2) Law Report Indexes 

Many provincial and topical law report series contain their own tables of cases considered.  A list of decisions judicially considering a case is provided under each case name. The table will indicate the manner in which the case was considered with each citation. For example, the tables use such phrases as "referred to in", "considered in", "applied in," or "followed in" to indicate the consideration the case received.

If you are researching a particular aspect of criminal law, for example, you may find it faster and more efficient to use the table in Carswell's Criminal Reports rather than a more general tool such as the Canadian Case Citations.