In most cases, there are things you can do to avoid court, including finding reliable information, noting up case law, understanding the general rules and exceptions, and knowing whether a law actually exists.
If you are experiencing a legal issue, you might think court is the place to resolve it. However, this is rarely true! There are many ways to resolve a legal issue without going to court. You can also take steps to avoid going to court in many cases. Court takes time and money and should be your last resort in most cases.
You can find several tips on how to avoid going to court on a legal issue in a previous LawNow article by Carole Aippersbach: How to Avoid Your Day in Court.
To summarize, Carole Aippersbach suggests that you:
- identify whether the issue is legal or not
- assume that some law is involved and look into it
- look for plain language and publicly available legal information online (such as from CPLEA)
- check that the information is current, reliable, and applicable
- consider alternative dispute resolution mechanisms
- seek out legal advice or help with your research, where needed
I would add a few more points to this list:
- reliable information is a must – be cautious of artificial intelligence and social media
- case law and government-made law are subject to judicial treatment or interpretation – the law requires “noting up”
- be aware that the law often sets general rules – look at general rules and any exceptions
- assume that some law is involved – but there may be situations where a law does not exist
Reliable Information
Artificial intelligence (AI) tools have caught the public’s attention but be cautious if you use them to research the law. ChatGPT is a type of AI referred to as a large language model.
It was widely reported in the media that a lawyer presented cases that he found on ChatGPT to a judge in a United States District Court case, but these cases did not exist. The judge imposed fines against the lawyer, a colleague and their firm.
The Alberta Courts have issued a Notice to the Profession & Public in which they recommend:
- caution in using large language models,
- reliance on reliable sources for cases, statutes, and commentary, and
- human verification of any AI based submissions.
The Notice highlights that reliable sources include official court websites such as the Alberta Courts, and public service websites such as CanLII.
Another reliable source may be official court social media accounts. For example, the Alberta Court of King’s Bench has Twitter and LinkedIn accounts, which may include links to decisions of interest. Be cautious of any social media account that is not an official court account.
Noting Up
When looking at case law or government-made law (e.g. statute or regulation), it is important to check its history and judicial treatment to confirm that the law is current, reliable, and applicable. This is the process of noting up.
If you are looking at a case decided at a lower level of court within a province for example, one party may have successfully appealed the decision, overturning the lower court’s decision. This is why you should check to see if this case was appealed to a higher court within that province or to the Supreme Court of Canada. The Supreme Court of Canada is the highest-ranked court in Canada but it only hears certain cases.
Once you know the history of the case, it is important to look at how other courts have treated it. This means that you research how other courts have considered the case over time. Other courts might mention, discuss, follow, or refuse to follow the case. This treatment is critical to determining if the case remains good law.
If you are relying on a section or part of a statute or regulation, you should look at the most current version of the statute or regulation. Also, you should check how the courts may have interpreted or applied that section in a case.
For more information about noting up a case or legislation, there are online guides that may help. For example:
- Noting Up a Case – Legal Research Manual – Research Guides at Queen’s University Library (queensu.ca).
- How to note up legislation – Law – LibGuides at Kwantlen Polytechnic University (kpu.ca)
General Rules
The law often sets general rules but there may be exceptions to those rules. By analogy, consider a watermelon with a label on it that says “seedless” but also “may contain occasional seeds.”
A law-related example involves employment standards. Not all Alberta employment standards rules apply to all industries and occupations. There are exceptions or special provisions for certain groups, including firefighters, taxi drivers, and teachers.
It is important to look at the general rules but also to note when and where they do not apply.
The Law Does Not Always Exist
Sometimes you might assume that a level of government has passed a law to regulate an industry but then you find out this has not happened after you investigate further.
An example of this involves the trampoline park industry in Alberta.
Trampoline parks came under scrutiny in and around 2018 after reports that one person was seriously injured at a park in Alberta, while another person died because of his injuries at a park in British Columbia.
The media reported on the number of trampoline injuries in Alberta as well as an MLA’s call on the Alberta government to regulate the industry due to safety concerns.
The discussion of trampoline park safety in the Alberta Legislature on December 6, 2018 is included in Hansard, the official reports of Legislative Assembly of Alberta proceedings.
It does not appear that efforts toward passing a law have advanced significantly since that time. The government may pass legislation or regulations in the future, but there is no guarantee this will happen.
Get legal help
Whether you are trying to avoid going to court or if you are headed in that direction, keep in mind these tips. Seek out a lawyer’s advice or help, where needed. Visit CPLEA’s website for where to get help in Alberta, both free and for a fee.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Kim Watamaniuk
