Question on Case Law on CanLII

[LakeErie]

When we do case law searches in CanLII, are those judgments province-specific or they apply to all situations across the country?

I'm talking about Family Law cases such as Child Custody and Child Mobility etc. Because these laws are governed differently from Province to province, should I judgment handed down in BC or Alberta bear any merit in Ontario or Quebec?

Thanks

[beebie]

Stick to your own province if possible. Court of Appeal cases in any province will be good precedents. SCC rules.

[Mess]

There are search options for province, if you leave it blank it is all of Canada.

[mom2three]

Excellent question Lake Erie! And of course, you throw in Quebec to stir up the situation! Canada follows the common law tradition, except for Quebec, which simply means that the lower courts must follow the decisions of the higher courts. Quebec law is a civil system so a lower court does not have to follow a decision of a higher court unless that decision is from the Supreme Court.

To understand it better you can read a case and determine one of three things: is it binding, is it persuasive, or is it distinguishable?

BINDING: ALL Supreme Court decisions are binding. Court of Appeal decisions are binding on the lower courts in the province in which they were decided.

PERSUASIVE: Decisions made in other provinces are persuasive as are those which are made at the lower court levels in the same province. For example, if one was to discover a Superior Court decision in Ontario, which has never been decided in the higher courts, it is persuasive throughout Canada. Higher court decisions from other provinces are also persuasive throughout Canada, but only binding on the province in which they were decided.

DISTINGUISHABLE: Each person's case is unique. Distinguishing one case from another is generally the game played out in court. While Jack's lawyer will cite a case as being binding, Jill's lawyer will make an argument that the circumstances are different (whatever those differences are) and thus the case is distinguishable and therefore not binding.

This is the general pattern (also known as the doctrine of stare decisis) from which to work when using case law. But, remember, if you are in Quebec, you are dealing with an entirely different can of worms

[LakeErie]

Excellent question Lake Erie! And of course, you throw in Quebec to stir up the situation! Canada follows the common law tradition, except for Quebec, which simply means that the lower courts must follow the decisions of the higher courts. Quebec law is a civil system so a lower court does not have to follow a decision of a higher court unless that decision is from the Supreme Court.

To understand it better you can read a case and determine one of three things: is it binding, is it persuasive, or is it distinguishable?

BINDING: ALL Supreme Court decisions are binding. Court of Appeal decisions are binding on the lower courts in the province in which they were decided.

PERSUASIVE: Decisions made in other provinces are persuasive as are those which are made at the lower court levels in the same province. For example, if one was to discover a Superior Court decision in Ontario, which has never been decided in the higher courts, it is persuasive throughout Canada. Higher court decisions from other provinces are also persuasive throughout Canada, but only binding on the province in which they were decided.

DISTINGUISHABLE: Each person's case is unique. Distinguishing one case from another is generally the game played out in court. While Jack's lawyer will cite a case as being binding, Jill's lawyer will make an argument that the circumstances are different (whatever those differences are) and thus the case is distinguishable and therefore not binding.

This is the general pattern (also known as the doctrine of stare decisis) from which to work when using case law. But, remember, if you are in Quebec, you are dealing with an entirely different can of worms

Excellent Reply! This is the answer I was looking for.

So basically, and ideally, we should quote cases where the judgment is made from Supreme Court of Canada or from the home province? A case in BC may not be that relevant in Ontario, or a case from Alberta is not so relevant in Quebec, right?