Canadian Legal Research Blog
With assistance from the Law Society of Upper Canada and LexisNexis Canada, CanLII has added approximately 15,000 cases from the Ontario Reports to its collection.
The announcement from CanLII notes the following benefits to the profession and the public:
With OR cases dating back to the 1930s complementing the hundreds of new Ontario cases added every month, the collection is improved dramatically in both quantity and quality.
For the public, this addition extends free access to a valuable resource that was previously available almost exclusively through subscription-based or other paid services.
Prior to this development, there were significant gaps in CanLII’s coverage of Ontario case law. The addition of this body of case law will go a long way toward closing those gaps, and increases the reliability of CanLII as a tool for legal research.
Intra Vires is a Canadian citation tool, intended to help law students comply with the citation requirements of the Canadian Guide to Uniform Legal Citation (also known as the McGill Guide). Intra Vires has been developed by a University of Calgary computer science graduate and a University of Toronto student in the JD/MBA program. Intra Vires will not free students from learning citation rules, but it makes compliance easier and takes some out the drudgery out of the process.
What I liked about this tool
There are a lot of things I really liked about this tool:
- The design is clean and attractive, with contextual help in the right margin.
- The URL from CanLII can be pasted in, and Intra Vires will generate a citation based on the McGill Guide rules.
- Punctuation is removed except as required in the McGill Guide, and the style of cause is italicized.
- Up to two citations are drawn from the CanLII document. Those citations are ordered based on the McGill Guide.
- Citations can also be generated manually by entering the style of cause, parallel citations and other required information.
- Complex citations can be generated, including pinpoint references and case history.
- Intra Vires contains look-up tables for the names and accepted abbreviations of case reporters and journals. This is considerably easier than accessing the appendices in the McGill Guide.
- Intra Vires does a good job of substituting the correct journal abbreviation for the full journal name, and deals well with multiple authors.
- The features in the Book template work well, except that a semi-colon appears instead of a colon between the place of publication and the publisher. I expect this will be corrected in time.
- After the citation has been generated, the user can make further changes to the generated citation before saving it.
- Once the user is happy with the citation, it can be saved to the user’s account and accessed later. However, it cannot be modified further within Intra Vires after it has been saved.
- Intra Vires is not limited to Canadian cases. It can also be used for journals, books and dictionary definitions. Although there are modules for cases from the UK and the US, these are still a work in progress.
The Canadian functions worked well for the most part. Clearly a lot of thought has gone into this product. For example, the pinpoint feature will only show the option to cite to a page number if there is no neutral citation. Regardless of whether the CanLII URL is the static URL for a case, or the long URL that appears when a case is retrieved from a search result list, the program correctly inserts the information for the case. The program usually figures out whether the citation includes a reference to the court or jurisdiction, in order to avoid duplicating that information at the end of the citation.
Some room for improvement
My main complaint is that the program does some odd things in the style of cause or title field. Capitalization problems occurred when acronyms without periods were input. For example, C.L.E. would reappear as Cle. For some reason the word “Law” was also stripped of capitalization when it appeared in titles. Sometimes the space between words was removed.
A smaller complaint regarding Canadian cases is that the court and jurisdiction format is not always completely compliant with the McGill Guide. BC courts are shown as BC CA or BC SC instead of BCCA or BCSC, even if the acronym with no spaces is typed into the Court field. This also occurred for New Brunswick and Nova Scotia. Jurisdictions where the abbreviation for the court is not a four-letter acronym were shown correctly, such as Ont CA or Alta QB.
Where the jurisdiction is embedded in the reporter name, the jurisdiction was not always removed from the end of the citation. For example, a case shown as reported in the Ontario Reports concluded with (Ont CA), whereas proper citation format would require that the citation conclude with (CA).
The Citing feature, for references in a case to other cases, was inactive when I tested the site. It would be helpful if this template included a pinpoint reference.
I did not try out the US citation features. The UK features are not as trouble-free as the Canadian ones, particularly with regard to parallel citations and pinpoint references. However, the look-up tables are useful. I understand that both the US and UK modules are a work in progress.
The program does not allow a full case citation to include more than 2 parallel citations. On occasion, users may need to include an additional citation, such as where the case has a neutral citation, has been reported, and the version being used was printed from QL or Westlaw Canada. Users may also want to include a citation to a reporter from their own jurisdiction. However, even if an additional citation is typed in on the form, it is removed when Intra Vires generates the final version of the citation. A user can add the additional citation in the Result box that appears after Generate is clicked, or after the user pastes the citation generated by Intra Vires into a document.
Given these issues, users should take a careful look at the citation that is generated by Intra Vires and make any necessary modifications. The second Result box, which appears after Generate is clicked, permits the user to revise the citation before it is saved. After this, further changes can be made when the citation is copied and pasted from the saved list of citations into the user’s document.
Free for how long?
Intra Vires subscriptions state that they are free of charge, but expire on September 1, 2014. The intention appears to be to charge for the service after that, but I understand that no firm decision has been made about whether Intra Vires will continue to be free of charge after that date.
Intra Vires cannot be used at all without obtaining an account. I understand that this is necessary in order to save citations, but people might want to simply try it out without obtaining an account. The amount of information collected to obtain an account seems a little excessive.
Canadian law students have not had access to the types of citation tools available in some other jurisdictions. Intra Vires is a welcome product, even though it cannot check the accuracy of the citation itself, but only the format.
Will students learn legal citation if a tool like this is doing some of it for them? I think they will: the program can be viewed as a learning tool. Eventually, as students see the changes between the citation they input and the citation generated, they will learn the correct format. That assumes, of course, that Intra Vires will be able to correct the few problems there are at present, and keep up with the next set of citation changes that will be introduced in the 8th edition of the McGill Guide.
The new CanLII interface is now live. One of the biggest changes is an “everything” search box. Type in a keyword search query, or part or all of a citation, statute name or case name, a docket number, or any combination of the above, and rely on the search engine to figure it out. Alternatively, for more user control, expand the box for more fields. This also opens a note-up box. The note-up box has an auto-fill feature, and includes the ability to note-up multiple citations.
The new CanLII interface features extensive refinement and sorting options:
- Date, jurisdiction, court level, and tribunal refinement are all available from the results page, after the search is run and the Cases tab is selected.
- A customized list of courts and tribunals can be created, if desired.
- Case results can now be sorted by court level as well as by relevance, date and citation frequency.
There are some subtle – but important – other changes that will improve your searching. These changes were highlighted earlier in the following blog posts:
Supreme Court of Canada search results in CanLII Beta
CanLII, connectors, and CAPITALS
For more information on this site about CanLII, see
Search Syntax for Westlaw, Quicklaw and CanLII
Making Good Choices: Canadian Electronic Research Resources
Quicklaw users will be happy to know that they can now control whether duplicate versions of judgments appear in their search results list. There is an On or Off choice entitled Duplicate Options that appears at the top of the results list. When the feature is turned on, you will see only one entry for a given case, but have the option to click on a link to view alternate versions.
- If Duplicate Options is turned on, the version you want may not be the version that is displayed. For example, the decision of the Supreme Court of Canada in Haida Nation v. British Columbia, 2004 SCC 73 appears on Quicklaw in 5 different versions. In the search I conducted, with relevance as the sort option, the version from the Canadian Native Law Report was the version displayed. It was necessary to open the list of alternate versions to find the Supreme Court Reports version. Fortunately this is easily done from the results list.
- In Preferences, you can select whether the version of the case that appears is the first ranked version based on your sort option, or whether it is the first ranked version in English or French.
Justice Geoff Lindsay of the Supreme Court of New South Wales recently addressed the Australian Law Librarians Association on “The future of authorised law reporting in Australia“. Justice Lindsay
- refers to the important function of “authorised” law reports as containing decisions representing an authoritative statement of the law, or a restatement of the law that requires serious consideration
- expresses concern about the impact of freely accessible case law on the viability of authorised law reports in Australia
- notes the risk of relying on AustLII when its existence depends on donations and grants
- comments on the perception that the information overload stemming from publication of all cases leads to hidden costs in the provision of legal services, the conduct of litigation, and the writing of judgments.
Justice Lindsay explores some options for addressing these issues in the Australian context, including the development and publication of something similar to the American Restatements of the Law series, and the integration of freely-available case collections with subscription-based value-added material.
I agree that the development of something similar to the American Restatements of the Law series would greatly assist legal professionals and judges, and I would like to see this happen in Canada. In addition, lawyers should take more advantage of legal treatises and encyclopedias to help them overcome some of the challenges of case law proliferation.
Categorization of cases by the court
Justice Lindsay does not mention an interesting approach taken by the Supreme Court of Western Australia, which categorizes judgments using letters A to D pursuant to Practice Direction 8.2.3, Categorisation of Reasons for Decision for Publication. The category assigned appears in the published reasons for judgment. The categories used are as follows:
||Those of significance and/or of current interest by virtue of their discussion or application of legal principle.
||Those which are more routine in nature, either because they turn on their own facts or are routine examples of the application of well known and understood principles. Decisions of this kind would not normally warrant reporting or uploading into a national database.
||Those containing data indicating current levels of assessment of damages, either generally or in particular categories of cases.
||Those which contain data indicating current levels of sentence for offences generally or in particular categories of cases.
AustLII is not set up to allow researchers to filter their searches by these categories. This diminishes the usefulness of these categories for addressing information overload.
Citation frequency as an indicator of case importance
One of the great debates regarding too much case law revolves around who should be the gate-keeper. Should the judge who decided a case determine its importance? Or should the staff or editorial board of a legal publisher decide? There can be problems with either of these approaches. Many of those problems were explored during the debate over the no-citation rule in the United States.
Another approach is to look at how subsequent cases have treated a case, and determine its importance based on that. User information can also be collected regarding how often a case is viewed or downloaded. Network analysis theory has been applied to assess the usefulness of this information for identifying important cases. Links to some of these studies are set out below.
Canadian legal publishers, influenced by this approach, are using citation frequency information to assist researchers to quickly identify significant cases:
- CanLII and Quicklaw have incorporated citation frequency as a ranking method.
- Westlaw Canada includes citation frequency information in result lists.
This is one small step towards using technology to help researchers quickly identify significant cases. However, citation frequency alone is a very unsophisticated approach. In particular, it favours older cases, to the detriment of important new cases. It is preferable to view search results on these services using all of the ranking methods available: relevance, date, and citation frequency. It is also necessary to assess the authoritative weight of the cases using a variety of factors.
WestlawNext and its search algorithm
The most sophisticated technological approach of which I am aware is WestlawNext, an American product. It uses a variety of inputs to rank cases for both relevancy and authority. In addition to evaluating the frequency, proximity and clustering of search terms, the search engine takes into consideration West’s key number system, KeyCite citations, secondary sources, and “meaningful interactions” by users.
The search engine is described by Greg Lambert in “WestlawNext – A Study in Applying Knowledge Management & Crowdsourcing” and by Jason Wilson in “WestlawNext Review: Ending the tyranny of the keyword?“.
A range of views was expressed about WestlawNext in a 2012 AALL panel discussion and survey. Law librarians with expertise in refining and controlling search results were sometimes perplexed by the operation of the search algorithm and the results it delivered. However, a recent ABA survey concluded that WestlawNext is now the most popular fee-based legal research service among American lawyers. The survey results varied based on the size of the law firm though: among sole practitioners, the survey indicated that the most popular service is Lexis.
A Canadian version of WestlawNext is under development. It will be interesting to see which features make the transition from the American product.
Best, “Everything old is new again: the proliferation of case law and whether there is a remedy”
Fowler et al., “Network analysis and the law: measuring the legal importance of precedents at the U.S. Supreme Court”
Neale, “Citation analysis of Canadian case law”
Nevers, “WestlawNext: Westlaw’s next generation research system”
Peoples, “Testing the limits of WestlawNext”
Rodrigues, “The murky waters of case law databases”
Smith, “The web of law”
van Opijnen, “Citation analysis and beyond: in search of indicators measuring case law importance”
Wheeler, “Does WestlawNext really change everything: the implications of WestlawNext on legal research“
In a recent post on slaw.ca, entitled Law Reports, Digests and Public Access to Legal Information, Louis Mirando discussed various considerations regarding whether the Law Library at Osgoode Hall should maintain its print subscription to the Canadian Abridgment Case Digests.
Several interesting issues were raised in his post, or in comments on the post, including
- whether the print subscription to the Canadian Abridgment should be maintained for archival reasons
- whether the print subscription needs to be maintained for library users without electronic access, such as members of the public
- whether students need to use, or at least see, the print version in order to learn how to use the electronic version
- whether case digests are a useful starting point for research, given the treatises now available
- whether case digests have become too cumbersome to be useful as a result of trying to digest all cases
- whether researchers’ reliance on the Abridgment results in them overlooking other digest services and classification schemes, such as the Maritime Law Book National Reporter System key numbers, or Quicklaw’s The Canada Digest
As an aside, I note that after 2006 Maritime Law Book stopped assigning key numbers to trial level decisions from Ontario and BC.
When digests are most useful
I would never start my research with a case digest collection, and recommend that narrative secondary sources be used first. However, I think a digest collection can be very useful in the following circumstances:
- as a current awareness tool
- to use the classifications assigned to a relevant case to find other cases dealing with a similar issue
- where the topical sources for the subject area are poor
- where the topical sources have poor coverage of my jurisdiction
- to look for cases outside of the date range of the other resources reviewed
- to ensure nothing is missed
The frailities of digest classifications
Although I use the digest classification schemes to check for similar cases, I often find that highly relevant cases are not listed under the classification where I would have expected to find them.
Two years ago I compared the contents of a Canadian Abridgment classification with the contents of an equivalent Quicklaw Canada Digest classification, to see how different they were. I was particularly interested because of the number of law firms that are choosing to “single source” rather than subscribing to both Westlaw Canada and Quicklaw.
The classification headings in these two products are quite different, but I selected a classification that was narrow, and which I thought should contain the same cases, dealing with custom elections in aboriginal communities. These are the classifications that I compared.
||Canada Digest (QL)
|III Government of Aboriginal people
||Communities and goverance
||– Community custom
I was very surprised by the results. The Abridgment Digests classification contained a total of 21 digests, and the Canada Digest classification had a total of 16 digests. However, only 4 of the digests were common to both, as illustrated. The most recent cases were in the Canada Digest.
I have not repeated this search more recently, so the numbers would probably be different if the same search were done today.
These results demonstrate the problems with relying on digest classification, and also with using a single source.
How to improve retrieval of relevant digests
One way to improve retrieval rates when searching in digests is to use a broader classification in combination with a keyword search. For example, a search run on all of the digests in the Abridgment under the Aboriginal Law classification, using the search string elect! /s custom! retrieves many more digests. I usually use this method, rather than looking only at the digests under a narrow classification.
Rigorous analysis and evaluation of digest services is needed
I haven’t tried more experiments with comparing digest results, or analyzed the cases that I retrieved to determine which service more accurately classified the cases. However, this would be a great topic for academic study. It could also be done as a legal research class exercise. If you have done this type of comparison, let me know what you concluded.
An interesting comparison of American case digests and point of law citator results in Westlaw and Lexis has been published by Susan Nevelow Mart, entitled “The case for curation: the relevance of digest and citator results in Westlaw and Lexis“. Regarding digests, she concluded that the human-indexed Key Numbers in Westlaw gave more relevant results than the algorithmic indexing used in Lexis. For citators, where both systems rely on algorithms to match headnotes, she found that the Lexis Shepard’s algorithm produced slightly more relevant results than the Westlaw Keycite algorithm. However, she found that there was very little overlap in the results, and concluded that neither resource returned comprehensive results.
CanLII has always kept Supreme Court of Canada decisions together with Federal Court decisions in search results refined by jurisdiction. A drawback was that a researcher could not easily refine a search to limit the results to the courts of the researcher’s own jurisdiction plus SCC jurisprudence.
Given the rules of stare decisis, a researcher will often want to start with a review of the jurisprudence from the researcher’s own jurisdiction and the SCC, to look for binding authority.
The CanLII Beta makes this task much easier.
- When you select a jurisdiction from the Jurisdictions drop-down filter that appears after a search is run, SCC results are included no matter which jurisdiction is selected. This allows you to easily restrict your search results to decisions from your province or territory, plus decisions of the SCC.
- Once you have reviewed relevant decisions from your jurisdiction and the SCC, another useful filter is the Appeal Courts filter under the Courts and Tribunals heading. This will restrict your results to appellate level decisions from across Canada.
- Alternatively, you can sort your search results by court level to see appellate decisions first. This is a quick way to ensure that you are aware of all of the SCC decisions containing your search terms.
- Try a variety of sorting methods for the same search, to see the most recent decisions, most relevant decisions, most cited decisions, and highest court level decisions.
- The filters and sort method that you have selected appear bolded, providing a useful reminder of which filters are active. There is a “Clear filters” link that will remove all of your filters.
There are a lot of great changes in the CanLII Beta. These changes will make my work easier, faster, and better on a daily basis.
Ben Hanuka has authored an excellent article in Canadian Lawyer on advanced searching in Google Books. One of the points he makes is that
Internet legal research is not an option or luxury — it is a required element of a competent lawyer’s toolbox to (i) conduct legal research, and (ii) gather and investigate facts.
He provides detailed instructions with screen shots showing how to access and use Google’s advanced book search features, including field searching. One useful tip is that if you sign in to your Google account more pages for preview and other functions are available.
He also explains how to use WorldCat to locate books of interest in a library near you.
The CanLII Beta includes a welcome change in search syntax. Once the Beta is implemented, it will not be necessary to capitalize search commands (and, or, not, exact) in your CanLII search queries.
For example, a query such as damages /5 punitive or aggravated run in the CanLII Beta will recognize or as a connector, and look for the word damages within 5 words of either punitive or aggravated. This query would be rejected in the current version of CanLII unless OR was capitalized.
The EXACT command, which turns off the automatic stemming function on CanLII, is also recognized in the CanLII Beta in lower case. For example, a search on CanLII for accountant will normally also retrieve documents containing account and various other forms of that word. But a search for exact(accountant) will retrieve only documents where that exact word appears. Think carefully before using the EXACT command. In this example it would also eliminate documents where accounting or accountants appeared, unless the exact term accountant also appeared in the document.
If you are used to capitalizing these commands on CanLII, it won’t do any harm to continue capitalizing them after the CanLII Beta is implemented. The new search engine will recognize them as commands in either upper or lower case.
There are many search engines used by legal researchers where capitalization continues to be necessary in order for a word to be recognized as a search command. For example:
- Google requires OR to be capitalized.
- Hein Online requires AND, OR and NOT to be capitalized.
- Irwin Law ebrary requires AND, OR, NOT and WITHIN to be capitalized.
In reviewing the implications of the recent citation rule changes adopted by the BC Court of Appeal, one consideration that came to mind is the impact on access to justice for the public.
Citation and access to case law
British Columbia adopted neutral citation in 1999 (BCCA) and 2000 (BCSC), so a significant body of its case law is easily accessible by neutral citation. The use of neutral citation with no parallel citations for BC cases does not pose any access barriers, particularly with the ease of accessing this case law on CanLII. Indeed, the new directive removes barriers and therefore increases access for cases that have a neutral citation.
What about cases without neutral citation? By allowing citation to QL or Westlaw Canada for those cases, with no parallel citations, how will self-represented litigants – or even lawyers without accounts to those commercial services – obtain those cases? Fortunately, the BC Courthouse Libraries provide public access, and all in-library users have free access to both QL and LawSource. In British Columbia this change should not have a negative impact on access to justice for both the public and the profession.
The situation is different for jurisdictions such as Ontario and Quebec, where the courts were late in adopting neutral citation.
- If a case is cited only to QL or Westlaw Canada, finding it on CanLII becomes more difficult. Citations from those electronic services are not part of CanLII’s Reflex database, so a citation search will not retrieve the case.
- A style of cause search may retrieve the case, but there can be considerable variety in how various services assign case names.
- The case can often be tracked down in a print reporter, by obtaining a citation from the Canadian Abridgment Consolidated Table of Cases. However, a parallel citation can eliminate that step, and also help with finding the case on CanLII.
- Another option is to use the CanLII citation for these cases, as a primary or parallel citation. This eliminates the barriers resulting from citing only to commercial services.
And what about cases too old to be on CanLII? A user given only a QL or Westlaw Canada citation, who does not have access to those services, will not be able to find the case in print reporters without first locating its print citation.
Allowing citation to commercial electronic services, with no requirement for parallel citations, could create barriers for those who don’t subscribe to the commercial services. That is just one instance where access to those services through law libraries is important.
Law libraries and public access to legal information
A quick trip through the Internet sites of Canadian courthouse libraries and law society-funded libraries reveals that the majority of those libraries provide some access to the general public. However, there are exceptions. A 2007 report by the Courthouse and Law Society Libraries Special Interest Group, summarized in the Library Boy blog, indicates that only 58.6% of the libraries responding were open to the public. Of those libraries that provided public access, many of them did not extend public access to commercial electronic databases. And library access to legal information through the public library system has decreased as a result of the termination of government funding for the Community Access Program, as discussed in the Clicklaw Blog.
Legal researchers know that using secondary sources is a key part of effective legal research: that will apply even more so for those without formal legal education. In a recent post, I referred to Martin Felsky’s suggestions for effective use of CanLII by paralegals. In his article, he states that:
The last category of research is the ability to find the most cited texts and articles. Most of us do not have the luxury of having a large law library accessible to us. I understand the paralegals are not allowed to use the County Law Association libraries and so [it] is not always easy to browse through the necessary textbooks and other secondary materials that are usually the most profitable way to start any research project.
If this is indeed the situation for paralegals at the LibraryCo libraries, it seems to contradict both the spirit and the letter of the LibraryCo public access policy.
Given the statistics on self-represented litigants recently published in the Final Report of The National Self-Represented Litigants Project (May 2013), and the increasing responsibilities being taken on by paralegals, serious consideration must be given to how courthouse libraries and law society-funded libraries can increase public access. Various studies are currently underway regarding access to justice, but access to legal information has not received priority. The law societies have supported public access through CanLII, but this is not enough. The repositories of legal information in our courthouse libraries and law society-funded libraries should be made available to the public as well.