In what is very welcome news, the Ontario Superior Court of Justice has released a practice direction, effective 1 October 2011, authorizing the use of reliable online versions of court decisions for filing in books of authorities and providing for special citation rules:
Practice Direction Regarding Filing of Judicial Decisions from Electronic Databases, and Regarding Citation of All Judicial Decisions
Practice Direction
Judicial Decisions from Electronic Databases
Effective October 1, 2011, copies of judicial decisions obtained from approved electronic databases are acceptable for filing provided the report of the judicial decision contains paragraph numeration consistent with the numbering of the paragraphs in the decision as released by the court. “Approved electronic databases” are databases that are dedicated to the publication of judicial decisions (e.g. Quicklaw, CanLII).
Parties should be aware that judicial decisions posted on electronic databases may be subject to correction or editing within a few days of the initial posting and, accordingly, parties should ensure that any decision obtained from an electronic database has not been subsequently amended.
Citation of All Judicial Decisions
Parties citing decisions from electronic databases should provide the citations for any paper versions of the decision in addition to the citation of the electronic database.
Parties should provide the date that the copy of any decision was obtained from an electronic database, as part of the citation information.
For decisions of the Ontario Superior Court of Justice released on or after January 1, 2010, parties should provide the neutral citation number (e.g. 2010 ONSC 1) in addition to the other required citations.
Osgoode Hall, Toronto
September 1, 2011
The Honourable Heather Forster Smith
Chief Justice, Superior Court of Justice
A few comments:
- "Approved electronic databases": The practice direction unfortunately gives what I assume is an unintentional, inadvertent limited view of examples by mentioning only Quicklaw or CanLII as approved electronic databases. Ideally, the practice direction would have preferred or encouraged the use of CanLII, where available, and then either referred more generically to the commercial databases or to include a more exhaustive listing (e.g., Westlaw Canada, BestCase, Maritime Law Book, SOQUIJ, DCL/REJB, and so on) or simply identified the major legal publishers as opposed to specific databases.
- Citation: I don't think I have a problem with including both a citation to the print-published version of a decision (if available) along with the online citation. I do find it interesting (and different) for the court to require "the date that the copy of any decision was obtained from an electronic database." If the court was going to otherwise change McGill Guide style, I would have liked if they had gone further to provide that, for decisions on CanLII, citing the neutral citation alone would be sufficient. In addition, the practice direction is ambiguous in its example of citing to the neutral citation for Ontario Superior Court decisions. A more preferable practice direction would have stated something along the lines that counsel are encouraged to file decisions from CanLII from all courts (not just Ontario) and when so doing may include only the neutral citation.
Despite these nit-picks, all-in-all this is a welcome and long overdue development.
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More: in Legal Information: Libraries & Research or Legal Information: Publishing or Practice of Law: Future of Practice or Substantive Law: Judicial Decisions or Technology: Internet | from Ted Tjaden
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I welcome this development as well, but share some of many of your concerns: only the neutral citation is necessary for CanLII cases, lawyers should be encouraged to use CanLII versions of cases, and it's unnecessary to add the date a decision was accessed to an electronic database citation.
I add to these concerns my pet peeve: there is absolutely no need to cite a print reporter when the decision is available on CanLII, QL, or WL. Print reporters are dead; courts should stop trying to keep them in zombie-like undead enslavement.
Also, I would suggest that only neutral citations be used for QL or WL with only a (QL) or (WL) after to identify how the decision was accessed, eg 2011 SCC 1 (QL).
I have spent the last few years trying to train students to use the McGill guide and now this practice direction seems to have ignored the movement towards neutral citations for all decisions. I am disappointed that the direction did not require a neutral citation first where available. The whole point of the neutral citation is that the same cite will get you the case in any electronic database. It would be a positive development if we were all moving towards using the neutral citation as the default citation. Other than that, I understand the Court wanting to know the source of the information and I guess there may be a few people out there that still need a cite to a paper copy (although I suspect this is exceedingly rare). I also suggest that we could have saved a lot of tedium, and prevented further citation inflation, if the requirement to provide the date printed was limited to cases less than one year old.
My issue is the date of accessing/downloading/printing – especially where the download is of a PDF that represents a version that the court has declared final.
For a SCC decision a decade old, why should I clutter up a factum with useless information.
Surely the date of accessing/downloading/printing ceases to be relevant at most 6 months after release date – and in most cases, a fortnight would suffice for a judge to catch any snafus.