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The easiest way to create a history of an act is to start with the most recent version of the legislation and work your way backwards. Going forward tends to be more complicated.

Depending on your jurisdiction and how far back you need to go, you may be able to do this entirely using electronic resources. Provincial historical legislation is now available on HeinOnline; check with your law society or library to see if you have access.

Let’s take the (now repealed) Bee Act, RSBC 1996, c 29 as an example. Using the Tables of Legislative Changes on BC Laws, you can see all the changes made to the act since 1996. (Alternatively, you could have used the Table of Statutes at the back of the annual statutes.) You can then look at the Historical Table for the Bee Act which provides a concordance between RSBC 1979 and 1996. Then, depending on what resources are available to you, you can finish the legislative research using HeinOnline or print resources.

The end result looks like:

Foul Brood Bees Act, RSBC 1911, c 18

Amended by SBC 1919, c 7; SBC 1923, c 2; SBC 1920, c 6.
NOTE: Renamed Apiaries Act by SBC 1919, c 7

Apiaries Act, RSBC 1924, c 12

Amended by SBC 1929, c 4, s 2; SBC 1930, c 3, s 2.

Apiaries Act, RSBC 1936, c 11

Amended by SBC 1947, c 5

Apiaries Act, RSBC 1948, c 14

Amended by SBC 1959, c 3

Apiaries Act, RSBC 1960, c 12

Amended by SBC 1963, c 2.
Repealed by S.B.C. 1975, c. 6

Bee Act, SBC 1975, c 6

Amended by SBC 1977, c 2, s 14; SBC 1977, c 75, s 10; SBC 1979, c 22, s 4

Bee Act, RSBC 1979, c 27

Amended by SBC 1980, c 29, s 10; SBC 1980, c 50, s 2; SBC 1988, c 31, ss 1-4.

Bee Act, RSBC 1996, c 29

Amended by SBC 2011, c 25, s 481, Sch (in force 18 Mar 2013); SBC 2007, c 14, ss 213, 215, Sch (in force 1 Dec 2007).
Repealed by SBC 2003, c 7, s 4, effective January 19, 2015 (BC Reg 3/2015)

The two most common challenges that you run into when creating legislative histories are that a) the act is repealed and replaced by another act and b) the act changes its name; both of these challenges are easier to deal with when you go backwards.

You can see from the legislative history of the Bee Act, that both these things happened. In 1975 the Bee Act replaced the existing Apiaries Act. Since I was going backwards I could see that section 32 (1) of SBC 1975, c 6 reads “The Apiaries Act is repealed.” so I knew that there had been an equivalent act to the Bee Act. Similarly in 1919, the name of the act changed from the Foul Brood Bees Act to the Apiaries Act. Since I was going backwards I could see that section 3 of SBC 1919, c 7 changes the short title.

What if you are trying to create a legislative history of a section of an act rather than the whole act?

Again, it is easier to trace it backwards rather than forwards. One challenge is that when acts are consolidated, the sections are renumbered. For example, section 68 of the Income Tax Act, RSBC 1996, c. 215 is not the same as section 68 of the Income Tax Act, RSBC 1979, c 190.

Use the RSBC to find what the equivalent section of an act was in a previous revision. Find the section of interest in the print RSBC volume; the legislative history will be at the bottom of the section.

One challenge that can arise when an act replaces (rather than revises) the previous act, since a legislative history is usually not given. In this situation you may find yourself having to read through the entire act to find the equivalent section. Sometimes (albeit infrequently) there may be a concordance between the two versions of the act. If a concordance doesn’t exist, Hansard can be helpful, since it may indicate what happened to a specific section.

My thanks to Stef Alexandru of Lawson Lundell for the inspiration for this tip.

Susannah Tredwell

 

 And/or
The construction and/or is criticised by grammarians, prose stylists and many legal drafters (both contractual and statutory). There are good reasons for this.

H.W. Fowler called and/or an ‘ugly device’. It looks as though you couldn’t take the time to think things through and express yourself other than by way of a fairly crude (if expedient) short form. And/or also has an air of the commercial purchase order to it.

There are other reasons to avoid and/or, and they relate to the meaning (and ambiguity) of words.

Disjunctive and, conjunctive or
We usually think of and as being conjunctive – that is, grouping things together – rather than disjunctive (separating things or presenting alternatives). Similarly, or is usually disjunctive. This is largely true, but not always.

Consider these examples:

The Minister of Finance may do X and Y [he can do both X and Y, but he is also free to do only one of them or neither – so and is not only conjunctive but also potentially disjunctive]

The Minister of Justice may do X or Y [here again, she could do either one or neither, but she could also do both – a conjunctive or is one possible interpretation]

To avoid confusion, you are better to say one of the following:

  • both A and B
  • A or B, but not both
  • either A or B
  • A or B, or both

Otherwise, your fate may be like that of the New Jersey judge in this recent case, where repeated use of and/or rendered her jury instructions so ‘hopelessly ambiguous’ that a new trial was ordered.

In contractual (and legislative) drafting, you probably want to avoid any ambiguity that might arise from and/or; in other kinds of legal writing, and/or just isn’t elegant.

Next tip: accentuating the negative

Neil Guthrie (@guthrieneil)

 

This is part 3 of a series on questions you should ask about any electronic research source. Did you miss parts 1 & 2? Find them here and here.

3. What is the Search SYNTAX?

Know your operators – every search is different. Until you know the basic commands for a site – AND, OR, Phrase, etc. – you should consult the “search tips” or “connectors” every time. Many sites include a link to their search tips, operators, connectors, or “search help.” Some, like Saskatchewan Cases, display the operators right on the search page. In CanLII, scroll over the question marks at the end of the command lines for basic commands, and from there click on help page for more detail.

A closely-related and equally crucial question (and the fifth in the list, if you think the thumb is a finger) – what is the default operator? How will the search interpret two words beside each other in the command line without any connector between them? For our Law Society research databases, it is always a phrase – the search will look for those two words in the same order. That’s a bit unusual. Many search engines default to AND, and some to OR.

Increasingly common, though, is a type of hybrid where the search engine looks for the words (1) together in order (phrase), (2) both included but not necessarily together (AND), and (3) either word (OR) – then an algorithm sorts out the order for you, so the most relevant documents are at the top. Yes, for these types of sites maybe you can ignore everything I’ve said about operators and still get somewhat useful results. Fine. But don’t assume that’s the case – I’m talking to you, Millennials!

Stayed tuned for the 4th and final part of this series.

[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

A reader’s suggestion, this. Good idea, even though it’s more of a contractual drafting or opinions point than a general legal writing tip.

Shall, will and must
The difference is to a large extent idiomatic – that is, subject more to instinct and feel than hard-and-fast grammatical rules. Usage has also changed over the centuries, and varies between North America and Britain. What follows is a distillation, as best I can manage.

In classic usage, shall is used in the first person (I, we) to indicate a wish or ‘mere futurity’. To say I will or we will indicates an element of intention, volition or choice. So, I shall probably be there but I will never do that.

In North America, I shall and we shall are less commonly heard in the ‘mere futurity’ sense, leaving will to perform both that function and to express stronger intention. This gives rise to ambiguity, because we lose the potential distinction between will  and shall. (And shall sometimes performs for us the classic will function, as in We shall overcome.)

In the second person (you) and the third (he, she, it, they), shall takes on the function of command, menace or refusal: You shall repent! or He shall never have any, if I have anything to do with it. Also, Thou shalt not steal, to use the old singular second person (equivalent of tu in French or du in German, as opposed to the plural (or formal singular) vous and Sie.)

In legal drafting, shall is usually used to express a third party’s positive or negative obligations: the Purchaser shall assume all liabilities … Here, shall is synonymous with ‘is obliged to’ or ‘has a duty to’ – command or menace at work. There are arguments that will, if used consistently, would also work: it’s hard to see much of a difference if you said the Purchaser will assume all liabilities – except that shall sounds a bit bossier. But convention (and traditional grammar) are on the side of shall here.

In common parlance must is close to shall in meaning: you must not hit your brother, you shall do this or that. And yet they are not synonymous; in contractual drafting, for example, must often takes on a conditional character: the Borrower must satisfy the following – that is, must do so in order to do something else, but need not.

Should and would
Should is the conditional form of shall. Its use in the first person has all but disappeared from North American usage, but it is classically correct to say I should like to go as a mere expression of desire, and as distinct from the imperative would (I would go, but I can’t).

When used in relation to other people, should is less bossy than shall; it means ‘ought to’, as in you should wash your hands after travelling on the subway. Not dictatorial, if perhaps a bit passive-aggressive.

Should, in opinion-writing, is seen as more qualified than would (this should work as opposed to this would work). William Estey suggests, however, in his book on opinions, that it’s unfair to place the burden on a client to figure out the shades of meaning between the two (and all the other ways we lawyers hedge our own bets). Fair point?

There is also should in this type of construction: Should you wish to leave a message, please do so after the tone. Not incorrect, but fusty – or perhaps fancy for the sake of being fancy. If can always replace should in these instances. Better yet: Please leave a message.

May and might
These can mean the same (or almost the same) when they express possibility:  I may go to the party, I might go to the party.

May also expresses permission: ‘You may not go to the party’, the parent told her teenager.

Because of this dual use of may, caution is advised. Avoid using it for negative obligations, since may not could mean either ‘is not permitted to’ or ‘might not’. Better: shall not.  In contractual drafting, confine may to the meaning ‘reserves the right to’.

Next time: and/or, and, or.

Neil Guthrie (@guthrieneil)

 

In training sessions we always advise articling students to start off their research using secondary sources. While there are instances where it is appropriate to start off research by searching case law and legislation, using secondary sources generally is far more time-efficient since it usually tells you what the relevant legislation and leading cases are. However once you’ve found a reference to a case that appears to be on point, you should not just rely on the summary, but actually read the case. We’ve run into more than one instance where the summary said something quite different from what the case actually said.

Susannah Tredwell

 

First off, the verb is quote and the noun really should be quotation – but I would be fighting a pointless rearguard action in trying to stop people from talking about a quote.

Single and double quotation marks
In the UK, single quotation marks (usually called ‘inverted commas’) are the default, with anything quoted within a quotation going in double quotation marks, like so: She said, ‘The bus driver told me, “You can’t bring such a large animal onto the bus, madam”, but in the end he let me.’

In the US, the position is reversed: double quotation marks to start, single for internal quotations.

Take your pick, but be consistent.

Punctuation
Here again, the Atlantic is the great divide. In the US, all punctuation goes inside the quotation marks, whether it forms part of the quotation or not. In the UK, punctuation goes inside only if it is an actual part of the words quoted (see the example in the previous section).

Quotation marks for special terms
Quotation marks can also be used to ‘to signal that a term is being used in a non[-]standard, ironic, or in another special sense’ (Chicago Manual of Style (2010)).

They can, for instance, be a substitute for so-called: For ‘lunch’, we were given some stale crusts and a glass of flat ginger ale.

Quotation marks are also often used where the term is (or is seen to be) newfangled, a bit slangy. By way of example, I hear that the young people are ‘tweeting’, whatever that means.

Do all of this very, very sparingly – and avoid the trap of thinking that metaphors somehow require quotation marks. There is no need to write The judge ‘pierced the corporate veil’.  Even persons of fairly limited intellect will understand that we aren’t talking about an actual veil here. It might be better, in any event, to educate a non-lawyer about disregarding the separate legal personality of a corporation, but without using insider terminology.

For examples of the overuse of quotation marks, see this highly entertaining blog.

US law reviews seem to think that quotation marks for special terms should be single, to differentiate them from actual quotations (which go in double quotation marks), but I can find no real basis for this. This looks like a case of editors creating rules for the sake of it.

Block quotations
If your quotation is long (more than, say, 40 words?), offset it as a centred block of text with wider margins than the main text. Because you have done this, there is no need for quotation marks around the quoted excerpt: you’ve already indicated that it’s a quotation.

Don’t assume anyone will actually read your long excerpt, however. The tendency is, in fact, to skip over big chunks like this (and, perhaps, for the reader to think you were just too lazy to paraphrase or summarise). You therefore need to explain what is to follow.

And don’t end your paragraph or section or piece with a block quotation – it’s usually more effective wrap up in your own words.

Square brackets
1L students quickly learn to do this, when quoting part of a sentence: ‘[A]ctions speak louder than words’ (‘actions’ not having a  capital A in the source, but needing one in the writer’s sentence). Only lawyers do this, and 99 times out of a hundred it’s unnecessary. Especially in a client piece.

Square brackets are useful to supply missing things (punctuation, words), make editorial comments (‘[that is, disregard the separate legal personality of a corporation]’) or indicate omissions (‘[…]’) – but you could omit the brackets and just use the ellipsis). Try not to use square brackets too much; they are hard on the eye and may disrupt the flow.

Next: shall, will, should, would, may, might, must

Neil Guthrie (@guthrieneil)

 

This is part 2 of a series on questions you should ask about any electronic research source.  See part 1 of this series here.

2. What constitutes a RECORD?

What are the individual things the database consists of?

Some case law databases, like Saskatchewan Cases or the Canadian Abridgment, consist of summaries or digests. Others, like CanLII, consist of primary law – judgments and legislation. In others, such as the case law components of Quicklaw and WestlawNext, you can search a combination of summaries and full-text documents. Knowing if you are searching a short summary or full-text decision is very important in formulating your search.

The Saskatchewan Bills database has a unique scope. Each record constitutes a Saskatchewan statute that was affected – created, amended, or repealed – by a Saskatchewan bill. So note that although the database is called “Bills,” the individual records are not bills but statutes, as they were affected by the bills. Thus, there will be a separate record each time a statute is amended, and separate records for each statute affected by single bill. This sounds a bit complicated, but users of the database will agree that there is tremendous advantage to this structure when conducting statutory research.

Coming soon: part 3!

[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

Openings and closing of business correspondence, that is.

My father, an old-fashioned lawyer if there ever was one, once said there are only two ways to start and close a business letter: either Dear Sir/Yours faithfully or Dear Mr So-and-so/Yours truly, depending on one’s level of acquaintance with the recipient. (And not very truly: one is true or one is not, no more no less.)

There is a certain simplicity to that, and it can be made female-friendly without difficulty. My own views follow.

Beginnings
Younger folk appear to have this strange view that ‘Dear’ at the start of a letter somehow suggests an affectionate relationship is being claimed.

Dear Sir is a little warmer than just Sir, but it’s by no means touchy-feely (Dear Sir, Your account now being considerably in arrears, …). That said, Dear may look a bit old-fashioned in a more casual e-mail, where Hello Neil or Hi Neil seems largely to have displaced Dear Neil. I would confine the hi and hello business to purely casual exchanges, however, and inject more formality into an e-mail message that contains considered legal advice.

Dear Mary in a business letter? If you want – but a more elegant way to do it is to type Dear Ms Wang, cross that out in pen and write in her first name. In England, it’s usual in business letters to leave out the salutation and the Yours truly bit entirely, leaving blank space which the writer fills in by hand, with whatever degree of formality seems appropriate.

If you are at the Dear Sir level, the female equivalent is Madam. Not Madame – although the plural of Madam (in this context) is Mesdames not Madams (which is the plural form for women who run brothels).

One sometimes used to see Gentlemen as a substitute for (Dear) Sirs in letters addressed to a firm in general (typically, opinion letters). The gender-neutral equivalent really should be Dear Sirs and Mesdames; the formulation Ladies and Gentlemen that people sometimes use has (to me, anyway) an air of the circus tent to it (Ladies and gentlemen, boys and girls! the greatest show on earth!).

Endings
I think my father is correct that these should be on the formal side. Save (Yours) sincerely for social correspondence.

And, if I could, I would banish regards of all sorts (kind, warm, best, fond, whatevs). You’re never going to send regards that are unkind, lukewarm, worst, not quite best – and is it really necessary to send them in the first place? I confess, though, that I do sometimes add Best wishes or just Best if the e-mail needs to sound a bit friendlier – but I cringe inwardly while doing it. For a compelling case to omit all of this sort of stuff, see this article by Rebecca Greenfield of Bloomberg Business.

Similarly, avoid worn-out and meaningless phrases like Please do not hesitate to contact me … The reader may well be inclined to think ‘of course I won’t hesitate – what sort of shrinking violet does she think I am?’ – or alternatively, ‘I’ll hesitate if I bloody well want to; you charge by the hour and I’ll only get in touch if necessary, since everything is on the clock.’ Either way, it’s useless.

Always include a standard signature block in e-mails that are going to external parties. It’s useful to include relevant professional information, like links to your LinkedIn profile and Twitter feed.

Beginnings and endings
I don’t put a comma after Yours truly and the like. I also omit one (or a colon) after Dear So-and-so at the top of a letter. More modern, cleaner typographically, no loss of sense.

Next time: you can quote me

Neil Guthrie (@guthrieneil)

 

One difficulty with finding labour arbitration decisions is a lack of uniformity in the style of cause; sometimes the union’s name may be fully spelled out, other times it may be abbreviated, or it may be omitted altogether and the name of the griever used. As a result, it can be faster to find a decision by searching by arbitrator’s name and the dates rather than the party names.

CanLII, Quicklaw and WestlawNext all carry labour arbitration decisions, although their coverage varies. You can find them in the following databases:

CanLII

Quicklaw

  • All Labour Arbitration Awards database

WestlawNext

There are two types of labour arbitration decisions: grievance arbitrations and interest arbitrations. Grievance arbitration is “a mechanism to resolve disputes about the interpretation and application of a collective agreement during the term of that agreement” whereas interest arbitration refers to “a mechanism to renew or establish a new collective agreement for parties without the right to strike/lock-out”.

Section 59 of the Canada Labour Code states “A copy of every order or decision of an arbitrator or arbitration board shall be filed with the Minister by the arbitrator or arbitration board chairperson and shall be available to the public in circumstances prescribed by the Governor in Council.” However, this only applies to grievance arbitrations and there does not appear to be an equivalent requirement for interest arbitrations under section 79 of the CLC.

Similarly, section 96 of British Columbia’s Labour Relations Code states that “An arbitration board must, within 10 days of issuing an award, file a copy of it with the director who must make the award available for public inspection.” British Columbia’s Collective Agreement Arbitration Bureau then forwards the decision to various agencies for public access.

Susannah Tredwell

 

Oh, so many of these – but I’ll mention just a few (for now).

Can not
No. It’s one word in modern English: cannot. And when you say it, the emphasis is generally on the first syllable.

Sometime
Spell-check thinks this always has to be one word. It doesn’t. As a single word, it means ‘former’: Bob Sharpe, sometime dean of law at U. of T., is now on the Ontario Court of Appeal. But Let’s have coffee some time and At some time in the future, we’ll see … (I acknowledge, however, that current usage may be against me on this.)

Outside of
Drop the of! It’s unnecessary and incorrect. So just this: outside the house, outside Canada, outside the realm of possibility etc. Same goes for inside.

The reason is because …
No! The reason is that… Always, always, always.

A couple things
Wrong! It must be A couple of things (even though you would correctly say a few things—who said English was regular?)

Prior
As in, Should we meet prior?  A construction I’m hearing a lot, and one that is irritating me. Prior here needs to be followed by to and something more (prior to doing XYZ). If you’re tempted to use prior on its own, substitute earlier, before or previously.

As an adjective, prior is fine (prior testimony), but remember that good old rule of thumb that a word with Anglo-Saxon roots (like earlier or before) is more forceful and direct than one that comes to us through Latin or French (like prior or previous). To give you an example, compare the fancy, Latinate words copulate and defecate with their one-syllable Anglo-Saxon equivalents. The latter certainly pack more of a punch.

Consider it to be X/find it to be X
This isn’t actually wrong, but it’s inelegant. Better just to find something X.  I find him boring has a better ring than I find him to be boring, no?

Fulfill
Take off the final L. And it’s fulfilment. Only two Ls in wilful too.

Did you want milk or cream with that?
I did want milk, and I still do. Or maybe I’ve changed my mind.

Or maybe you should use the conditional (Would you like milk or cream?) or the present tense (Do you want …) instead of this weird, incorrect use of the past tense.

Like
Don’t even get me started on its annoying use as meaningless filler in speech, particularly by those under 30.

What I hate in a written context is like in the past, like in the movies, like in the recent decision, like I said. What you mean is as not like. Reserve like for like me, like a virgin and the like (like plus noun or pronoun without a verb attached, or an adverb like so).

Next time: beginnings and endings

Neil Guthrie (@guthrieneil)