Date01 January 2020
AuthorAbdulla, Adil

INTRODUCTION 2 I THE IMPORTANCE OF VERTICAL STARE DECISIS 4 A. Certainty and Predictability 7 B. Coherence 8 C. Legitimacy 4 II JUSTIFYING EXCEPTIONS IN BEDFORD & CARTER 11 III THREE APPLICATIONS OF THE EXCEPTIONS 12 A. The Legal Test Has Changed 12 B. Assumptions Necessary to the Holding No Longer Apply 15 C. Coherence with Non-Binding Law Is At Risk 17 IV AVOIDING JUDICIAL ACTIVISM 20 V CONCLUSION 22 INTRODUCTION

Every first year law student in a common law jurisdiction learns about vertical stare decisis: the principle that courts must follow binding precedents from higher courts which decided the same issue on essentially the same facts. "Indeed, this is the foundational principle upon which the common law relies." (1) In the colourful words of Master Funduk, "[t]he judicial pecking order does not permit little peckers to overrule big peckers." (2) Yet, in Canada since 2013, trial courts have been allowed to revisit (3)--that is, refuse to follow--decisions of higher courts, even decisions of the Supreme Court of Canada ("SCC"). (4) As the SCC explained in Carter, citing Bedford:

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'. (5) The first exception is clear. Reporters are filled with cases distinguishing precedents on the basis that the precise issue raised was not decided in the precedent. It is also well-established that the first exception applies where "a new argument is made based on Charter provisions that were not raised in the earlier case," (6) or more generally where a new cause of action or defence is asserted.

The second exception is less clear. What is a change in circumstances? Whose circumstances? What is a change in evidence? What fundamentally shifts the parameters of the debate? What debate is it? Why is the court engaged in debate?

To date, no court has answered these questions, or seriously attempted to define the scope of the Bedford/Carter exceptions ("the exceptions"). The best guidance that trial courts have is that "the threshold for revisiting a matter is not an easy one to reach." (7) Some academics have reinforced this view by criticizing the SCC for creating exceptions at all (8) or criticizing specific uses of the exceptions. (9) It is therefore no surprise that, until very recently, trial courts almost never applied the exceptions. (10)

Some academics have identified circumstances where the exceptions should apply," but none of their articles are comprehensive. In particular, none of them consider all of the circumstances proposed by other scholars, the theory underlying vertical stare decisis, or most of the cases applying the exceptions. (12)

The purpose of this article is to fill those gaps. In particular, this article argues that trial courts should apply the exceptions in three circumstances:

  1. Where the legal test has changed;

  2. Where assumptions necessary to the holding no longer apply; and

  3. Where the precedent conflicts with non-binding law, which includes

    1. General principles or implications of law;

    2. Law from other jurisdictions; and

    3. Trends in other, non-binding jurisprudence.

    In these circumstances, following precedent undermines the purposes of vertical stare decisis. Moreover, courts have applied the exceptions in these circumstances.

    The first three parts are structured in line with this dual argument. Parts I and II focus on the purposes of vertical stare decisis and the exceptions, respectively. Part III discusses the cases in which it was appropriate to apply the exceptions. Finally, Part IV addresses the argument that setting clear rules will enable judicial activism and proposes ways to mitigate this problem.

    Before diving into the analysis, it is worth noting what this article will not do. First, this article only discusses when the exceptions should apply, not the preliminary question of whether the court needs to consider applying exceptions. In particular, it does not attempt to identify where the precedent can be distinguished, either because the relevant conclusion in the precedent is obiter or because the cases are different on the facts. In both of these situations, the precedent would not be binding to begin with, so there would be no need to apply the exceptions.

    Second, this article does not comprehensively assess all of the cases which refused to apply the exceptions. It avoids that analysis because: 1) that analysis has already been done; (13) 2) most of those cases are not relevant to this discussion; and 3) to the extent that they are relevant, they are referenced below.

    Third, this article does not explain whether the proposed circumstances are justified under the first or the second exception. It avoids this analysis because: 1) courts have been vague about which exception they have applied; 2) some circumstances could be justified under either exception; and 3) nothing turns on the determination of which exception is being applied.


    Considering its importance to the common law, it is amazing how little has been written to justify stare decisis. To understand this dearth of scholarship, it may be useful to turn back the clock to a time when stare decisis prevented judges from revisiting any case, not just those from higher courts.

    From its origins in the sixteenth century, (14) the doctrine of stare decisis was described as a question of judicial powers, fudges were only empowered to apply the law, where the law was defined as the set of statutes and precedents. Judges could not break with precedent because their powers derived from the authority of those precedents. (15) The high water mark for this approach came in 1898, when the UK House of Lords found that stare decisis prevented it from overruling itself. (16)

    But then the tide shifted. In the first half of the twentieth century, courts found a variety of ways to avoid following their own past decisions. The best-known of these rules is the distinction between ratio and obiter. In 1901, the UK House of Lords expressly recognized that "a case is only an authority for what it actually decides" (17) (the binding ratio). Anything else is obiter, and does not bind future courts. This was not a new idea, but the courts took to it with renewed vigor in this period.

    More to the point, courts began identifying circumstances in which the precedent was wrongly decided, such that the court which made it did not have to follow it even if it would otherwise be binding. (18) However, they carefully avoided suggesting that lower courts could revisit precedents from higher courts. This created a distinction between horizontal stare decisis--where a court follows a precedent made by a court at the same level in the judicial hierarchy--and vertical stare decisis--where a lower court follows a precedent made by a higher court.

    In the second half of the twentieth century, the strict rule of horizontal stare decisis was abandoned, as higher courts explicitly granted themselves the power to overrule their own past decisions. (19) This created a conceptual problem for the judicial powers approach to horizontal stare decisis: how could it be said that the court derived its authority from precedents if it could overrule those precedents?

    Perhaps to fix this conceptual problem, academics began proposing alternative bases for horizontal stare decisis. Broadly speaking, horizontal stare decisis is now justified based on some combination of the following three factors: (20)

  4. It promotes certainty and predictability of the law;

  5. It maintains the coherence of the law; and

  6. It preserves the legitimacy of courts.

    Meanwhile, as the theory underlying horizontal stare decisis evolved, the theory underlying vertical stare decisis stagnated. There was no problem in continuing to apply the judicial powers explanation because lower courts were always required to follow precedents from higher courts.

    Now, however, the existence of the exceptions requires a revision to the theory underlying vertical stare decisis, much like the evolution in thinking on horizontal stare decisis. Since horizontal and vertical stare decisis were theoretically interchangeable for centuries, it should come as no surprise that the justifications for horizontal stare decisis also apply to vertical stare decisis, albeit with minor modifications. The next three sections formalize that intuition, showing how these justifications apply to vertical stare decisis.


      The primary (21) benefit of vertical stare decisis is that it makes the law certain, at least on the question of what legal rule applies. To see why this is the case, suppose that an appellate court has created rule X. If lower courts cannot revisit this precedent, then everyone would know that rule X will be applied in the next trial court case (case 2). If lower courts can revisit the precedent, then the trial court in the next case could instead apply rule Y, which would surprise the litigants. Worse still, in the following case (case 3), litigants would know that the court is still bound by X, but rule Y might (22) be applied again. (23) There is now no option but to surprise the litigants by rejecting at least one valid approach. As a result, as vertical stare decisis is weakened, prospective litigants will find it harder to predict what legal rule will actually be applied.

      The consequence of this uncertainty is unnecessary litigation, waste of court time and litigants' money, and increasing the cost of justice. Uncertainty causes unnecessary litigation in three ways.

      First, litigants may choose to engage in conduct which would be prohibited under the existing rule in the hopes that they could convince the court to apply a different...

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