Stare Decisis

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Date Retrieved:	2024-11-22
CLNP Page ID:	1780
Page Categories:	Legal Principles
Citation:	Stare Decisis, CLNP 1780, <https://rvt.link/e4>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2024/11/12

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Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331

[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.

[32] As a result, the Federal Court committed no legal error when it declined to follow the Lin case. It examined the letters and the questionnaire which the Friedmans received from the CRA and concluded that it was clear who was being audited. The Federal Court came to its own conclusion that the necessary criteria had been satisfied by reference to the documents themselves. This is what it was required to do and it committed no error in doing so.

...

[42] The adjudicative facts in Rodriguez were very similar to the facts before the trial judge. Ms. Rodriguez, like Ms. Taylor, was dying of ALS. She, like Ms. Taylor, wanted the right to seek a physician’s assistance in dying when her suffering became intolerable. The majority of the Court, per Sopinka J., held that the prohibition deprived Ms. Rodriguez of her security of the person, but found that it did so in a manner that was in accordance with the principles of fundamental justice. The majority also assumed that the provision violated the claimant’s s. 15 rights, but held that the limit was justified under s. 1 of the Charter.

[43] Canada and Ontario argue that the trial judge was bound by Rodriguez and not entitled to revisit the constitutionality of the legislation prohibiting assisted suicide. Ontario goes so far as to argue that “vertical stare decisis” is a constitutional principle that requires all lower courts to rigidly follow this Court’s Charter precedents unless and until this Court sets them aside.

[44] The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

R. v. King, 2019 ONSC 6386 (CanLII)

Judicial Comity

[49] The purpose underlying the doctrine of judicial comity was described by Martineau J. in Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 989, 2014 FC 952, at para. 45:

[T]he principle of judicial comity aims therefore to prevent the creation of conflicting lines of jurisprudence and to encourage certainty in the law. Generally, a judge should follow a decision on the same question of one of his or her colleagues, unless the previous decision differs in the facts, a different question is asked, the decision is clearly wrong or the application of the decision would create an injustice. Judicial comity requires much humility and mutual respect. If the rule of law does not tolerate arbitrariness, judicial comity, its loyal companion, relies on reason and the good judgement of each person. Failing a final judgment from the highest court, respect for the other's opinion can speak volumes. In short, judicial comity is elegance incarnate in the person of the magistrate who respects the value of precedents. [page633]

[50] Justice Smart described the approach outlined in Hansard Spruce Mills Ltd. (Re), 1954 CanLII 253 (BC SC), [1954] B.C.J. No. 136, [1954] 4 D.L.R. 590 (S.C.) in the case of R. v. Sipes, [2009] B.C.J. No. 421, 2009 BCSC 285, at paras. 10-11:

The approach advocated in Re Hansard Spruce Mills is not a rule of law; rather, it is a wise and prudent prescription for the exercise of judicial discretion. It will almost always be in the interests of justice for a judge to follow the decision of another judge of the same court on a question of law. Consistency, certainty, and judicial comity are all sound reasons why this is so. It is for the Court of Appeal to decide whether a judge of this Court has erred, not another judge of the Court.

In my view, both the rule in Re Hansard Spruce Mills and the exceptions to it are based on common sense and a consideration of the interests of justice. At all times, the application of the rule should advance the interests of justice, not undermine them. It is for this reason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should not begin and end with a rote application of Re Hansard Spruce Mills; instead, that determination should also be informed by all relevant factors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so.

[51] In Police Authority for Huddersfield v. Watson, [1947] 1 K.B. 842, at p. 848, Goddard C.J. stated:

I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.

[52] An instructive case on judicial comity is R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.). Strathy J. (as he then was), stated, at para. 43:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Hansard Spruce Mills Ltd., Re, 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills Ltd., Re, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[53] In contrast to vertical stare decisis, the doctrine of comity or horizontal stare decisis is not binding. There is no legal sanction for a judge's failure to follow a decision of another judge of the same court on the same question of law. A judge may depart from a colleague's interpretation or determination of a statutory provision or legal question where the judge is convinced that a departure is necessary and can articulate cogent [page634] reasons for doing so. A judge may also depart from an earlier decision where following the earlier decision would result in an injustice: Cervenakova v. Canada (Minister of Citizenship and Immigration), [2010] F.C.J. No. 1591, 2010 FC 1281, at para. 29.

[54] Judicial decisions from the same level of court on the very same subject matter and relevant legal principles are persuasive and ought to be followed; in the absence of strong reasons to the contrary, or unless the judge is convinced that it is clearly wrong: Scarlett, at para. 43; R. v. Northern Electric Co., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] O.J. No. 649 (H.C.J.); Horne v. Horne Estate (1986), 1986 CanLII 2786 (ON SC), 54 O.R. (2d) 510, [1986] O.J. No. 243 (H.C.J.), affd on other grounds (1987), 1987 CanLII 4090 (ON CA), 60 O.R. (2d) 1, [1987] O.J. No. 495 (C.A.).

[55] In R. v. Chan, [2019] O.J. No. 504, 2019 ONSC 783 (S.C.J.), at para. 43, Boswell J. had the occasion to address judicial comity. He references remarks from Lord Denning that the "convention of horizontal precedent is not inflexible", and also refers to Laskin J.A. in R. v. Polowin (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.):

Instead of focusing on phrases such as "manifestly wrong", the approach I prefer is that adopted by this court in R. v. White (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A.), at p. 602 O.R. It calls on the court to weigh the advantages and disadvantages of correcting the error in a previous decision. This approach focuses on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.

[56] Boswell J. states his approach to the issue, at para. 44 of Chan, as follows:

In my view, while the decision in David Polowin provides the most flexible approach to horizontal precedent, it is not wildly divergent from the decisions in Spruce Hansard or Scarlett. None of these cases carve out a special exception for decisions with a constitutional dimension.

Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952 (CanLII)

[45] I repeat: the principle of judicial comity aims therefore to prevent the creation of conflicting lines of jurisprudence and to encourage certainty in the law. Generally, a judge should follow a decision on the same question of one of his or her colleagues, unless the previous decision differs in the facts, a different question is asked, the decision is clearly wrong or the application of the decision would create an injustice. Judicial comity requires much humility and mutual respect. If the rule of law does not tolerate arbitrariness, judicial comity, its loyal companion, relies on reason and the good judgement of each person. Failing a final judgment from the highest court, respect for the other’s opinion can speak volumes. In short, judicial comity is elegance incarnate in the person of the magistrate who respects the value of precedents.

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.

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