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Unreported Decisions: A New Challenge

It used to be that either a decision was “reported” (i.e. published in a print reporter) or it wasn’t (an unreported decision). Unreported decisions were hard to find; generally, you needed to get a copy from the court or from one of the parties involved. The situation started to change as publishers began to offer summaries of cases:

The WLP Decisions, along with the All-Canada Weekly Summaries led to the rise of ‘unreported decisions’ being readily available for lawyers to use in their research. The heyday of print law reports as the only official record of legal decisions had peaked, but we didn’t know it yet. It was a slower time. When I phoned Western Legal or Canada Law Book to request a full-text judgment, I often simply requested that the decision be mailed to me. A wait of two or three days to receive the desired judgment was acceptable to most of our lawyers most of the time.
(Gwendoline Hoar, “Before the Flood: How It Was When VALL Began”, VALL Review, vol. 21, no. 1)

With the advent of electronic products and then CanLII, it became even easier to obtain what would have been considered an “unreported” case in the old days.

The ease with which one can now get a case online has lessened the need for law reports. An informal survey reveals that Canadian law libraries are dropping the number of law reports they subscribe to, since they are no longer as necessary to find cases. Nor are law reports as crucial to alert readers to important or noteworthy new cases given all the alternatives that now exist. What will be the impact of this on law reports themselves? It seems likely that publishers will move towards publishing law reports in electronic format only. For example, the Supreme Court Reports and the Federal Courts Reports will end print publication by April 2014 and from then on be published in electronic format only. This will even further blur the perception of what is a reported case and what is an unreported case.

However I would propose that there is a new category of “unreported decision”: those judgments that the courts do not make easily available. Although they cannot be easily obtained online they are still cited in court judgments or in secondary materials, and as a result lawyers expect to be able to find them.

Oral decisions often fall into this category; for example, in British Columbia even if an oral decision is transcribed, the judge or master involved has the final say over whether it is added to the website. If consent is not given, the decision will not be made available.

In Ontario, all court decisions are automatically assigned a neutral citation. However the existence of this neutral citation does not mean that the decision has been published in CanLII. The only way for a librarian to distinguish between the two types of decisions is by putting the neutral citation into a database and seeing if anything comes up.

So how do you find this kind of unreported decision? The two most effective ways are contacting the registry or contacting one of the lawyers involved, although neither technique is foolproof. One challenge in finding these cases is simply not having enough information; if you do not know either the correct registry or who the counsel were, you are going to spend a lot of time on the telephone.

It would be helpful if publishers established a policy whereby no case could be cited by an author unless the publisher provided access to the full text of the judgment. While there might be challenges with court approval, one would assume that if a case was important enough to cite in a text, it should also be important enough for the court to publish. Similarly, it would be useful for courts to ensure that any case cited in a decision was readily available to those who might want to read it.

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Comments

  1. Great points Susannah! It is an area that we are discuss regularly at Courthouse Libraries because it seems in BC that more and more decisions are given orally from the Bench. It feels as though a body of important case law is being lost in the ether and with it the evolution of our legal principles.
    We have been able to offer some of the BC decisions through our own Unreported Decision Index with over 33,000 decisions, searchable on our website here: http://www.courthouselibrary.ca/search/UnreportedDecisions.aspx
    One of the ways that our fabulous librarian Carmen adds to this collection is by searching CLE papers and publications for reference to unreported decisions and then tracking them down through the Registry.
    I love the idea of a reference in a publication being tied to a requirement to make the decision available. I think we as a community have a lot further to go here and with current and emerging technology, I look forward to seeing how we can collectively evolve to make these decisions even more broadly available.

  2. Compare the rule in Ontario’s Legislation Act by which a government department that incorporates an outside document in a regulation by reference must take steps to ensure that that document is accessible to the public.

    s. 62(4) When a document is incorporated by reference as described in subsection (1), the Minister responsible for the administration of the Act under which the regulation is made shall take steps to ensure that,

    (a) the incorporated document is readily available to the public, on and after the day the regulation or amending regulation containing the reference is filed under Part III (Regulations); and

    (b) the incorporated document and any earlier versions of it that were previously incorporated into the regulation or into a predecessor of the regulation remain readily available to the public.

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