Legal Research

Adding Foundational Case Law to CanLII

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By Sarah Sutherland
Manager, Content and Partnerships
Canadian Legal Information Institute (CanLII) 

Since CanLII’s founding, we have been working to make sure the law you need is available. As part of our project to add the Dominion Law Reports cases that have been cited in CanLII case collection that we announced last year, we are including historical cases that are foundational to understanding the context of Canadian law, including Browne v Dunn (1893), 6 R 67 (HL), which we are informed was the most requested case at the Law Society of Upper Canada’s Great Library (Thank you to David Whelan for letting us know this was the case and sharing the scanned copy from the Great Library’s print collection!).

A Primer to Legislative Research Across the Provinces and Territories

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By Alan Kilpatrick

In Spring 2017, the Vancouver Association of Law Libraries (VALL) published a Canada-wide legislative research primer in their association’s quarterly publication, the VALL Review (Spring 2017, Volume 29, No. 2).

Legislative research is a major component of law librarian’s labour.  Publication of the primer is timely and apt.  It will be well used by legal information professionals.  I would like to commend VALL for its leadership in developing this excellent resource.

A Primer to Legislative Research Across the Provinces and Territories was collaboratively developed by some amazing law librarians from Canada’s provinces and territories:

British Columbia
Emily Nickerson, Research Librarian
Norton Rose Fullbright Canada LLP

Alberta
Megan Siu, Community Development & Education Specialist
Centre for Public Legal Education Alberta

Saskatchewan
Alan Kilpatrick, Librarian
Law Society of Saskatchewan Library

Manitoba
Karen Sawatzky, Director of Legal Resources
Law Society of Manitoba

Ontario
Brenda Lauritzen, Reference Librarian
County of Carleton Law Association

Prince Edward Island
Pam Borden, Library Manager
Law Society of PEI Library

Newfoundland and Labrador
Brenda Blundon, Law Librarian
Department of Justice and Public Safety

Jenny Thornhill, Law Librarian
Law Society of Newfoundland and Labrador

Nova Scotia
Janet Arsenault, Librarian
Justice Canada

Yukon
Natalie Wing, Law Librarian
Yukon Public Law Library

Northwest Territories
Stef Alexandru, Librarian
Lawson Lundell LLP

Alexandria Everitt, Librairan
Harris & Company LLP

Nunavut
Riel Gallant, Legislative Librarian
Nunavut Legislative Library

VALL has graciously allowed us to republish their primer on Legal Sourcery.

 

Some New Changes at CanLII

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By Sarah SutherlandManager, Content and Partnerships
Canadian Legal Information Institute (CanLII)

As we transition into summer, we thought we’d take the opportunity to refresh your memory as to what’s new at CanLII.

New Board members

In November 2016, Professor Adam Dodek, Crystal O’Donnell, Shannon Salter, and Thomas Schonhoffer, Q.C. joined the CanLII board. The board will be chaired by Dominic Jaar, Ad. E. They will help us further our goal of making legal materials more accessible to the public.

More information on this can be found here.

New features

We have made several changes on the main CanLII site and on CanLII Connects.

On CanLII.org:

  • LexBox is now fully integrated into CanLII: For those who haven’t used the LexBox extension that Lexum offers for the Chrome browser, LexBox allows users to save search queries, set up alerts for new content that matches a search query, create folders with saved results, and offers a trail of your research. Until now, users were required to download the extension to save search queries on CanLII. This is no longer the case. See here for more details.
  • The blue “Headnotes” button at the top of each case is now dynamic: This means it alerts you with a warning sign  (  )  when there are either related decisions in our database from the same level of court as the decision you are consulting, or we have found a related decision from a higher court. Previously, this information was only available after clicking the button.
  • The highlighting (i.e. find in document) feature now allows you to change which words you want highlighted in a decision: Previously, the tool did not allow for changes mid-search. Now, you can edit your highlights by clicking on the little pencil at the top right of the document page.

Most notable on CanLII Connects include:

  • The ability to post multimedia content: We recognize that commentary comes in many forms, and as such we welcome content in forms such as podcasts or videos. If this form of legal commentary appeals to you, just pick the embed option when you are creating content and paste the html embed code from hosting sites such as YouTube or Vimeo in the text box.
  • The ability to save searches and set up e-mails: This one is pretty self-explanatory, but basically, just save your search after you run it, and you will get a daily update of new content.
  • The ability to indicate negative treatment on a case: This new feature is still in its early stages, but promises to be an exciting development on CanLII Connects. Each case present on CanLII Connects now has the ability to be flagged by verified users to indicate that the case has received negative treatment by another case. All verified users are active members of the legal community. We will keep you posted on further developments of this feature.

We expanded our content

In furtherance of our goal of access to justice and for legal content to be publically accessible, we have partnered with multiple entities to increase our content. Most notable include:

  • New “Smart PDFs” from Lexum have allowed us to upload 16,000 decisions from the Dominion Law Reports (DLR). The DLR are the second most cited block of cases on CanLII after the Supreme Court Reporter. The strategically chosen cases from the DLR represent all the decisions that have been cited in the cases contained in the CanLII collection when we started this project. This is more or less equivalent to saying that we have all the decisions in the DLR that have been cited in approximately the last 15 years in Canada or in any earlier case in the Supreme Court Reports (SCR). Some Privy Council decisions were included in this set, so we also set up a new database for this content. More information on this can be found here.
  • An expanded partnership with CAIJ, which allowed us to post thousands of decisions issued between 1980-2015 from Quebec administrative tribunals including: 36 500 decisions from the Commission d’appel en matière de lésions professionnelles (CALP), 41 500 decisions from the Commission des lésions professionnelles (CLP), 17 000 decisions from the Tribunal administratif du Québec (TAQ) and 28 000 decisions from the Commission de protection du territoire agricole du Québec (CPTAQ).
  • We introduced a new way to publish commentary. CanLII has expanded to include some secondary materials on our website. Thanks to Lexum’s Qweri software which powers this new innovation, you can now read legal commentary in a more elegant format with content that is easier to search and navigate. Looking forward, we will have more ebooks later this year. If all goes well we will have law reviews, CLE materials, and law reform commission reports by the end of 2017. We are also working on a program to allow individual authors and organizations (or teams of authors) to submit long form commentary (books or articles) to be considered for publication on CanLII.org. To see more on this, click here.

Unreported, You Say?

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By Ken Fox

From time to time at the library we get requests for “unreported” decisions. What do folks mean by unreported?

These days, you usually mean that a case is difficult to find, that it is not available on CanLII for instance. This is very reasonable – you take a phrase you have heard, and apply it to a situation in a way that makes sense.

Traditionally, unreported means something different with respect to case law. The court issues written reasons for its judgments, and legally-trained editors working for private publishing companies select cases for printing based on their importance, uniqueness, and court level. Cases printed in law reports (i.e., “reported”) were not only more accessible than unreported cases (i.e., those not selected for inclusion in a law report), but more authoritative, with some courts only allowing reported cases to be cited.

So (you ask) in the past, private publishers decided which cases were important, and thereby played a significant role in the creation of the common law? Yes they did, and to a certain extent they still do.

Unreported decisions existed only in copies issued from the courts, and photocopies of them were generally collected in court house libraries. At the Law Society Library in both Regina and Saskatoon we still have collections of unreported Saskatchewan judgments going back to the 1960s.

But technology changes things. In the traditional sense of “unreported,” CanLII hosts hundreds of such cases. For example, look at the citation info in this one – there is a neutral cite, but no reference to Saskatchewan Reports (Sask R), Western Weekly Reports (WWR), or any other print law report. The case is unreported, but easily accessible.

In 2014, Susannah Tredwell speculated that online publishing of case law has created a new kind of unreported decision: “those judgments that the courts do not make easily available.” This type includes oral judgments, and any other judicial decision for which no written reasons are released.

I don’t know the exact name of this phenomenon – semantic drift? – but it seems to me the meaning of “unreported” is changing. The publishing companies have little or no say in what cases are available – that power is now the courts’ alone.

In addition to changing the availability of case law, the existence of comprehensive, free sources such as CanLII, CommonLII, WorldLII and Google has eroded the authority of the print reporting system. As far back as 2005, Nick Pengelley mused that there might no longer be an authoritative distinction between reported and unreported case law. In 2009, Ted Tjaden suggested that Canadian courts, contra England, may adopt a more flexible, discretionary approach to what judgments can and should be cited in court.

So (you ask), this is the end of the centuries-old law reporting system? Really? Well, it’s not for me to say, but – yes.

How do you access unreported decisions?

In Saskatchewan, everything for which there are written reasons from 2000 forward is on CanLII. If you are looking for one of those “unreported” decisions in the newer sense of the term, you might need to contact a court registry office or one of the lawyers involved in the case. The Saskatchewan courts provide instructions on how to access court records.

From before 2000, practically all reported (in the old sense) Saskatchewan cases are now on CanLII. For unreported cases, try a subscription service such as WestlawNext or Quicklaw. Failing that, contact us, and we’ll do our best. If it’s from the 1960s or later, we might have it in a filing cabinet.

On the question of terminology – well, for me “reported” still means the case includes a citation to a printed law report. Call me Old School if you like, I won’t mind. And if you are one of those folks who call any difficult-to-find case “unreported” – then (1) I won’t correct you, and (2) I may someday join you – because one thing I’ve learned is that history’s greatest fools are the ones who try to stand in the way of change, and I just don’t want to be that guy.

 

Saskatchewan Law Grad Talks about Legal AI

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tedtalkBy Alan Kilpatrick

Did you catch Andrew Arruda’s TED Talk?  TED Talks brings together diverse speakers to discuss exciting and emerging issues in the world today.

Arruda (JD’14) is a recent University of Saskatchewan College of Law graduate.  In his talk, Arruda speaks about the potential of an artificially intelligent (AI) lawyer to democratize the law, reduce legal costs, and to make the practice of law cheaper for all.  To accomplish this goal, Arruda worked with a computer scientist to create ROSS, the world’s first AI lawyer.  I encourage you to watch the video yourself.

The primary argument Arruda makes is that an AI lawyer can help reduce legal research time and consequently lower the fees incurred as a result of legal research.  Time spent on legal research, Arruda explains, is the biggest barrier to hiring a lawyer. Lawyers spend twenty or thirty hours on legal research and spend hundreds of dollars each month to access legal databases.  ROSS will allow lawyers to get away from legal research.

While I am skeptical an AI lawyer can actually do what Arruda claims, the idea is intriguing.  At the Law Society Library, we are continually on the lookout for the latest legal resource technology for our members.  Our goal at the Law Society Library is to provide members with the newest digital resources anywhere in the province.  Today you can access WestlawNext through the Members’ Section right on your computer’s desktop.  Tomorrow, will you be able to access an AI lawyer?

Two New Subject Resource Guides

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By Ken Fox

Yes, the Law Society of Saskatchewan Library has created TWO MORE Subject Research Guides: Banking Law and Bankruptcy and Insolvency Law – both can be accessed, along with other subjects, at our Research Resources page.

Subject guides available at Research Resources now include:

  • Aboriginal Law
  • Banking Law
  • Bankruptcy and Insolvency LawCivil Procedure
  • Civil Procedure
  • Criminal Law
  • Family Law
  • Tort Law
  • Trusts, Wills and Estates Law

Have we forgotten anything on any of these guides? Your feedback would be welcome. Also, if there are any other legal subjects you would like us to create a guide for, please let us know.

Law Librarian as Researcher

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By Brenda Wong

The librarian in a law firm setting is part of a profit-making business, which inevitably leads to a different type of role than a librarian in a university or public library. One of the main differences is that they have an ongoing relationship with their clients. Often librarians will attend practice group meetings to keep abreast of what files the lawyers are working on. They are highly specialized professionals, involved in research, library administration, and collaborating with other departments. This article will primarily deal with research.

Most legal reference questions are complex, and even the basic ones require some subject knowledge. A basic question could involve retrieving a list of cases for a brief of authorities. Frequently the questions are more complex:

I remember a recent case in Alberta involving a homeowner who sued a golf course over golf balls that landed in their property. Can you get it for me?

The librarian must parse the question, frequently asking for more details. It also helps to know that every lawyer is very subjective when it comes to the term “recent.” Complex reference questions can mean many hours of labour or pulling in other staff to assist. Legal research is satisfying and intensive work as there is often a time crunch. It is not for the faint of heart. Research is often the most visible responsibility of a law librarian.

Another, more invisible, role the law librarian plays involves collection development, or ensuring the library maintains current information to meet the practice areas of the law firm. Sometimes collection development also means canceling looseleaf services, if the same information is now delivered electronically. Librarians keep tabs on emerging fields of law and emerging authors adding to the print collection. Often librarians need to make some hard decisions about their budget so costs are manageable. They also undergo continuous training in order to be effective researchers using the latest features of commercial databases, like WestlawNext Canada or Quicklaw.

An overlooked aspect of having a law librarian on staff is that their effective research skills save the firm money. In private practice wasted time is a waste of resources and money. For example, the commercial database searches are the opposite of Google in certain ways. They work best with focused or Boolean searching, so plunking keywords into WestlawNext is a case of garbage in and garbage out. Not only is it an ineffective practice, but unnecessary searches can have other ramifications, such as driving up the cost of such databases. Librarians aim to train lawyers so they firstly reframe reference questions to find background information in textbooks before searching on commercial databases.

The advent of CanLII has been a tremendous boost to online research, but it does not have specialized tools like encyclopedias or newsletters providing context to the case law. It is hoped over time there will be more innovations from CanLII leading to even more secondary sources.

Some research will likely be handed over to the librarian as it may be time-intensive and very specialized legal research. Historical legislative research tracing back how an act has changed is fascinating and complex. It involves a deep dive into annual statutes and consolidations, laying out the print volumes to see how they relate to each other.

Although this article has explored the research process, the law librarian is also involved in administration like budgeting and contract negotiations of databases, as well as collaborating with other departments. Collaboration can look like implementing a memos database with IT or developing competitive intelligence projects with marketing. Librarian Shaunna Mireau of Field Law in Edmonton, for example, is involved in overseeing firm-wide knowledge management projects so information is shared and used effectively.

The law librarian plays an integral role in research at a private firm. The information will feed into an opinion letter to a client or legal memo. Librarians save the firm time and money with their honed research skills, freeing up lawyers to complete other tasks. “We support our users by giving them the answer, not teaching them how to get the answer – most of the time,” said librarian Karen Sawatzky of Tapper Cuddy in Winnipeg.

Some of the research time may be billed to clients, too. In firms in which the librarians bill their time, they can be directly contributing to work product as well as generating revenue. Librarians billing their time, however, is another topic to be explored.

Many law librarians will say that research is their favourite part of their day as it is never boring and always challenging. Librarians strive to do research using both print and electronic resources while also training lawyers to improve their skills. After working in different types of libraries, I must say that legal research is rewarding and fascinating because it has real life implications.

 

Sources

Demers, A., ed, Legal Information Specialists: A Guide to Launching and Building Your Career, (Toronto: LexisNexis Canada, 2012).

Lambert, G., “In the the age of Google, law librarians manage your time, people and money” (January 12, 2016), 3 Geeks and a Law blog, online: http://www.geeklawblog.com/2016/01/in-age-of-google-law-librarians-manage.html.

 

BrendaWongPicBrenda Wong has been a law librarian, library technician and library consultant in firms from Toronto to Vancouver and a few places in between. She believes strongly in the positive contributions librarians can make in law firms and the legal profession in general. Through her varied experiences, she has seen how law libraries have evolved in the last decade, and she understands that the common thread is to create knowledge through the connection of information and technology.