Stare Decisis

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Date Retrieved:	2024-04-16
CLNP Page ID:	1780
Page Categories:	Legal Principles
Citation:	Stare Decisis, CLNP 1780, <4J>, retrieved on 2024-04-16
Editor:	Sharvey
Last Updated:	2021/10/17

Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49 (CanLII)

[22] Judgments rendered under art. 165(4) C.C.P. often concern situations in which the right being claimed is clearly prescribed, the law prohibits recourse to the courts, or there is quite simply no legal relationship between the parties (see D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), vol. 1, at pp. 286-87; H. Kélada, Les préliminaires de défense en procédure civile (2009), at pp. 214 et seq.). However, an action will sometimes be dismissed if it is clear that an authoritative decision has already resolved the issue or issues raised in the motion to institute proceedings. In the Attorney General of Canada’s view, that is in fact the case in this appeal.

[23] He submits that this case concerns a situation in which a previous decision of this Court has settled the law on the main legal issues involved in the appeal. The appellant does not argue that this is a case of res judicata on the basis of which art. 165(1) could be invoked. Rather, his argument is that the law applicable to the fundamental issues that will determine the outcome of the appeal was settled by this Court in its 2008 decision in CSN v. Canada in exercising its power as the ultimate interpreter of constitutional and public law. An interpretation contrary to the one adopted by the Court in that case would have no legal basis in light of the case’s status as a precedent (Canada (Procureur général) v. Imperial Tobacco Ltd., 2012 QCCA 2034, [2012] R.J.Q. 2046 (“Canada v. Imperial Tobacco”), at paras. 125-27, per Gascon J.A., leave to appeal refused, [2013] 2 S.C.R. ix; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 38 and 43-46, per McLachlin C.J.).

[24] Of course, the doctrine of stare decisis is no longer completely inflexible. As the Court noted in Bedford, the precedential value of a judgment may be questioned “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (para. 42). Where, on the other hand, the legal issue remains the same and arises in a similar context, the precedent still represents the law and must be followed by the courts (Bedford, at para. 46).

[25] Although relatively uncommon in Quebec civil procedure, the mechanism for dismissing actions at a preliminary stage on the basis of stare decisis is similar to the res judicata exception (art. 165(1) C.C.P.). Under both of them, the legal issues raised by the applicant must already have been clearly resolved by the courts. However, unlike res judicata, stare decisis does not necessarily require that the dispute be between the same parties. What must be established is that the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata.

[26] In Canada v. Imperial Tobacco, Gascon J.A., as he then was, explained this as follows:

[translation] In this context, the manufacturers’ argument that this case is not res judicata, because Imperial was not decided by a court of competent civil law jurisdiction or because strict identity of parties, cause and object is not established, does not appear to me to be determinative. I see no need for further discussion of the distinctions the manufacturers raise with respect to these identities of parties, cause and object, which in their view refute the AGC’s res judicata argument. In my opinion, the appropriate principle to apply to resolve the issue is instead stare decisis.

The Superior Court should have held on the basis of stare decisis that it was bound by Imperial. The Supreme Court, by ruling as it did on the issue of the AGC’s immunity in relation to the course or principle of action challenged by the manufacturers, had in a sense barred the manufacturers’ actions in warranty by rendering them unfounded in law, even if the alleged facts were assumed to be true.

Stare decisis is a less stringent basis for an argument than res judicata, since it requires only a similar or analogous factual framework. Stare decisis is a principle “under which a court must follow earlier judicial decisions when the same points arise again in litigation” [Black’s Law Dictionary (9th ed. 2009), at p. 1537]. It applies, of course, to decisions of the Supreme Court, particularly in the area of public law as here, where the parties were involved in earlier litigation on the specific question at issue. [Emphasis added; paras. 125-27.]

[27] This being said, before granting a motion to dismiss an action because it has no basis in law, the judge must also be satisfied in light of the record and the alleged facts that the precedent relied on by the applicant actually concerns the entire dispute that it should normally resolve, and that it provides a complete, certain and final solution to the dispute. In case of doubt, the judge may not grant the motion to dismiss, but must instead give the parties an opportunity to argue the issues on the merits.