Using Case Law
In Canada (except Quebec), we operate under a Common Law system. This means that previously published legal decisions (“cases”) can inform adjudicators and influence how the law is applied.
Case law establishes precedent, which is when one court’s decision becomes the standard for how other courts make decisions. Courts at the same level or below the court that decided the case must decide subsequent cases in line with that decision. A higher court (like the Supreme Court) can overrule a lower court (like Small Claims) and future Small Claims decisions would need to be in line with the Supreme Court decision. Decisions from the Supreme Court of Canada are binding on every court in the country, but typically don’t deal with Provincial legislation like the Residential Tenancies Act.
Small Claims decisions can influence each other, and often one decision will draw information and legal interpretations from others, but any Small Claims adjudicator can choose to decide differently from other cases if they believe there is a legal basis for their decision.
If you’re thinking about using case law during your hearing, be very cautious. Information (including cases from this guide) could be out of date by the time you read them, since new cases are decided every day. Additionally, tribunals like the Residential Tenancies Board are not obligated to follow case law in the same way that courts like Small Claims are (this doesn’t mean they don’t, it just means they don’t have to).
If you are thinking about using case law in your upcoming hearing, follow these steps to guide your research:
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You need to know where to start and what legal document cases are referring to. In this case, the Residential Tenancies Act. Start by reading over the sections of the Act that you think most apply to your situation to familiarize yourself with the law.
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Small Claims decisions are published online on the NS Courts website, Residential Tenancies decisions are not and cannot be accessed unless you have a personal copy of the decision.
There are databases designed to help people search for cases. The most popular of these is CanLII, which you can access for free online. Make sure you’re searching for recent decisions by filtering your search by date. More information on using CanLII for research has been compiled by the National Self Represented Litigants Project.
Supreme Court decisions in Nova Scotia are tagged using the citation NSSC, and Small Claims decisions are cited with NSSM. Use these to search for the relevant cases. Start with the Supreme Court, and if you can’t find anything move on to Small Claims.
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Make sure you read relevant cases in full. Adjudicators will read the case in full, so you cannot selectively pick information. Find cases that have the outcomes you want and similar facts to your case.
Highlight the lines that best highlight how the case applies to your situation.
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Cases you want to use in your hearing are submitted like any other evidence. Make sure you give a copy to each party.
Make sure you know which lines you want to refer people to during your hearing and you mark off what you want to read. This is different from taking and reading off of notes, which is not allowed during Small Claims hearings.
