Legal Research

Proliferation of the citation of unreported judgments in judicial decisions

By Ted Tjaden

I was in an interesting discussion today with colleagues on whether there has been a proliferation of the citation of unreported judgments in judicial decisions in Canada and whether this was a good or bad thing.

The context is this: in the good old days of print case law reporters (e.g., Dominion Law Reports or Ontario Reports) when life was much simpler, qualified editors chose to publish only the significant or important decisions. As such, you knew that when lawyers and judges cited precedent to print case law reporters there was some semblance of authority or quality in the precedent. With the increase of online, unreported judgment that can be found by keyword searching, the argument would be that there is (or may be) an increase in less significant or unimportant decisions being relied upon as judicial precedent thereby (so the argument goes) “dumbing down” the quality of legal judgments and analysis. (Although I have over-simplified the issue, I think there may be some truth to these concerns).

As has likely been previously mentioned on SLAW, the English courts have established restrictions on the use of unreported decisions in the Court of Appeal, Civil Division (Practice Direction: Authorities, [1996] 1 W.L.R. 854, which states in part):

Leave to cite unreported cases would not be granted unless counsel could assure the court there was a relevant statement of legal authority not found in reported authority, as opposed to an illustration of established legal principle.

In Douglas v. Royal Bank Of Scotland, [1997] EWCA Civ 1771, the court was critical of counsel who tried to rely on unreported decisions:

Mr Lyndon-Stanford cited to us in his written submissions 21 cases of which eight quite rightly have not been reported. More unreported cases were produced at the hearing. The Court must protect itself against the citation of such a mass of authorities. It has taken power to do so by the Practice Statement of Sir Thomas Bingham M.R., reported at [l996] 1 W.L.R. 854 . . . .

After today yet another case will be available in this field. In truth, the principles are plain, though illustrations of their application are limitless. It should not be assumed that the Court will be ready to look without justification at unreported authorities.

Would this fly in a Canadian court? Should it fly?

My inclination is to not try to restrict counsel and what they may cite but instead leave it to the judge to sanction counsel with a negative costs award if the counsel was wasting the courts time with inappropriate precedents.

I think a bigger challenge is of course the dearth of official print case law reporters in Canada and the (eventual) demise of printed case law reporters all together. As such, I don’t think this type of restriction would work here and that we instead must rely on the discretion of counsel and the courts.

Full post as published by Slaw.ca on June 24, 2009 (boomark / email).