Judicial Comity

Friedman v. Canada (National Revenue), 2021 FCA 101 (CanLII)

[29] The first point to be made is that the appeal to stare decisis is misconceived, though understandable given the references in the jurisprudence to “horizontal stare decisis”. The doctrine which applies to the judges’ treatment of decisions of their colleagues on the same court is judicial comity. The decision of one judge of the Federal Court does not bind the other judges of the Federal Court in the sense that failing to follow the decision of a colleague is an error which justifies appellate intervention. At paragraph 115 of Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 250, [2014] F.C.J. No. 1090 (QL), this Court wrote:

In contrast, the doctrine of comity or horizontal stare decisis is not binding. … Rather, this Court highlighted the uncertainty that is created when two judges of the same court reach distinct results on the same question of law without explanation. It remains that, as shown by Allergan [Apotex Inc. v. Allergan Inc., 2012 FCA 308] the only thing that an appellate court can do when this happens is to eliminate the uncertainty by settling the question of law (Allergan at para. 53). There is no legal sanction for a judge’s failure to abide by comity.

(emphasis added)

[30] This does not mean that judges are free to disregard the decisions of their colleagues. Judicial comity is a doctrine which seeks to promote uniformity and predictability in the law. Litigants and appellate courts expect that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why. One way of doing this is to distinguish the facts of the two cases or to identify relevant legal principles which were not addressed.

[31] But the failure to do so, or to do it convincingly, while regrettable, is not a basis for appellate intervention. As a result, the use of the expression “horizontal stare decisis” to refer to judicial comity is misleading precisely because judicial comity is not enforced by courts of appeal while stare decisis is.

Stuart v. Bank of Montreal, 1909 CanLII 3 (SCC), 41 SCR 516

English Court of Appeal—should such a case arise—in view of what was said by the Privy Council in Trimble v. Hill[90], the duty of this court would require most careful consideration. (See Jacobs v. Beaver[91].) But we should not, in my opinion, hesitate now to determine that, in other cases, unless perhaps in very exceptional circumstances, a previous deliberate and definite decision of this court will be held binding, if it is clear that it was not the result of some mere slip or inadvertence: Bozson v. Altrincham Urban District Council[92]. The decision of this court in the Stanstead Election Case[93], which is in accord with the views expressed in such cases as Smith v. Lambeth Assessment Committee[94], at page 328, and The “Vera Cruz” No. 2[95], at page 98, may be deemed conclusive authority that judgments of dismissal which have proceeded upon an equal division of opinion are not to be regarded as decisions of this court, but merely as decisions of the court whose judgment has been thus affirmed. See, however, Lumsden v. Temiskaming and Northern Railway Commission[96], at pages 473, 474.

Though, as stated by Brett M.R. in The “Vera Cruz” No. 2[97], it is (except in Ontario, as to which see R.S.O. [1897], ch. 51, sec. 81) no doubt true that

there is no common law or statutory rule to oblige a court of law to bow to its own decision—it does so on the ground of judicial comity it is of supreme importance that people may know with certainty what the law is, and this end can only