ONTARIO, LISTEN UP

CITATIONAL PRACTICES IN THE ONTARIO COURT OF APPEAL

Abstract

This article shows that while the Court of Appeal for Ontario is the most cited among provincial courts of appeal in Canada, it does not engage with the caselaw of its counterparts in other provinces to the same extent as those courts do. Arguing that citational practices reflect deep unarticulated assumptions about legal authority, the author raises questions about the place of appellate courts in general, but especially the Court of Appeal for Ontario, in shaping Canadian law. Relying on a short history of the project of a Canadian body of legal thought and a demonstration of the diverse citational practices of other Canadian appellate courts, contrasting those with the well-documented practices of the Supreme Court of the United States, the author argues that there is an “outward-looking” Canadian way of making law, by which the Court of Appeal for Ontario does not seem to abide. Her critique reiterates the importance—at the heart of the judicial office—of dialogue and considering the reasons of others.