In my last colum, I wrote about where to start when researching the procedural aspects of your case. This week I will write about the best way to approach researching the merits of your case.
Once your procedural ducks are in a row, you need to translate your real-world problem into a legal issue with a remedy that you like (or can live with). In one of my earlier columns I recommended you find a lawyer to help you with this part. Lawyers have a lot of experience diagnosing legal problems and this can make your job much easier moving forward.
Diagnosing legal problems is not a straightforward task. Sometimes the real legal issue does not become clear until much further down the road; aspects of your problem will change as facts come out from both sides. Nonetheless, if you have a starting point you can begin your research.
The law in Canada can be divided into legislation and case law.
Legislation consists of the acts and statutes passed by your elected officials; they are often supported and clarified by regulations. Regulations tend to be where the juicy details are kept. For example, the Employment and Assistance for Persons with Disabilities Act states who qualifies for disability assistance and sets out the penalties for misreporting the state of your affairs to the proper authorities. In the regulations, you find out that while you are not allowed to possess much wealth, you can have up to $3,000 in cash in your bank account at any time and that you can earn $800 extra every month to supplement your disability assistance income.
The reason the details like this are kept in the regulations is because they are easier to change than the legislation. The government doesn't want to have to change the Employment and Assistance for Persons with Disabilities Act every time the cost of living in B.C. goes up and it’s necessary to increase the exempted amounts allowed to be held by individuals on disability.
In any given act, there will be a reference to a minister or someone who is allowed to make regulations under the act. Be aware of these provisions because they're necessary to research the full issue.
Case law interprets various statutes and also comprises the common law. This is where you can spend a lot of your research time interpreting what the law is.
The way in which legislation is supposed to apply is not always clear in every case; the wording can seem ambiguous when applied to your case. In situations like this, a body of case law develops that interprets the legislation.
For example, the Criminal Code is a large piece of federal legislation that has been and still is minutely dissected and interpreted by judges every day across the country. If you open up an annotated Criminal Code you will find not only the legislation, but also digests of the important cases that tell you what each section of the Code has meant in practice. You can find similar books for the Bankruptcy and Insolvency Act and the Supreme Court Civil Rules. If no book exists, you need to use a case-law search engine such as CanLII; plug the search terms into the engine to see what you find.
Now, there are whole areas of law that the governments (federal or provincial) have never legislated on. This is because when Canada started as a country with its own laws, it adopted common law from Britain wholesale. Over the years, with our own courts, our common law has evolved in a uniquely Canadian fashion in our own courts.
One such area would be the law concerning the tort of negligence. The courts have developed legal tests to determine when a person or corporation should be found negligent in conducting a task or omitting to conduct a task.
The best place to start understanding the legal tests and principles that will apply in your case is a legal textbook. You can find many of these at your local law library (these can be found in most courthouses). My favourite law library is at 800 Smithe Street in Vancouver.
More on case-law research next time…
Reasonable Doubt appears on Straight.com on Fridays. The column's writer, Laurel Dietz, is a criminal defence lawyer at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don't take this column as personal legal advice, because it's not. It is intended for general information and entertainment purposes only.