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Common Law - Change Over Time. Atkinson v. Economical
In Atkinson v. Economical (Ont Div Ct, 2026) the Ontario Divisional Court considered an awkward LAT (SABS) tribunal reconsideration issue, here where the applicant "challenges the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal". The case also involved a parallel HRTO application alleging discrimination in the LAT process.
Here the court makes an important comment on the perpetual variability of the common law, and any attempt to address such common law changes occuring during a case by reconsidering it (rather than by appeal or JR) (elsewhere in this case addressed as a functus officio issue):[50] More generally, the common law is constantly evolving. From time to time, appellate courts will change the law. The effect of those changes on previously decided cases are matters for the parties and the appellate court to work out. They are not matters that the original decision maker can fix. . Khodykin v. Canada (Attorney General)
In Khodykin v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses a JR from a Social Security Tribunal (Appeal Division) decision that denied EI benefits.
Here the court makes an interesting limiting point on the development of the common law - and stare decisis - in a JR context:[12] The applicant also submits that the common law test of misconduct must evolve. However, this issue is not available on this judicial review which is subject to reasonableness review (Francis v. Canada (Attorney General), 2023 FCA 217 at para. 14). Inter-Leasing, Inc. v. Ontario (Revenue)
In Inter-Leasing, Inc. v. Ontario (Revenue) (Ont CA, 2014) the court noted as follows on the incremental development of the common law in the field of commerce:[78] In Friedman Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34 (CanLII), 2000 SCC 34, [2000] 1 S.C.R. 842, the Supreme Court considered the factors relevant to a decision whether to change a rule of property or contract law, at para. 46:While our common law rules must be in step with the evolution of society as a whole, when examining a proposed change to a rule of property or contract law, we must also examine whether the rule is consistent or inconsistent with commercial reality. A rule may have a rationale which appears to be anachronistic while continuing to serve a useful commercial purpose. Our common law is replete with artificial rules which, although they may appear to have no underlying rationale, promote efficiency or security in commercial transactions. Such rules, in the circumstances where they apply, must be followed to create a legally recognized and enforceable right or obligation. Parties, therefore, structure their relations with these rules in mind and the rules themselves become part of commercial reality. Commercial relations may evolve in such a way that a particular rule may become unjust and cumbersome, and may no longer serve its original purpose. When the hardship which a rule causes becomes so acute and widespread that it outweighs any purpose that it may have once served, it is certainly open to a court to make an incremental change in the law. However, there must be evidence of a change in commercial reality which makes such a change in the common law necessary.
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