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Appeal Court Dicta

Stare Decisis - Horizontal

. Bank of Montreal v. Iskenderov

In Bank of Montreal v. Iskenderov (Ont CA, 2023) the Court of Appeal (CA) held that horizontal stare decisis could be excepted where the issue was decided by a full five-member panel of the CA:
Stare decisis: Anisman (ONCA) was binding and precedential

[67] In this case, the argument to the motion judge suggested that there was an issue whether the Anisman (ONCA) decision constituted a decision of this court that was binding and precedential. Although the reasons of this court in Anisman (ONCA) were brief because they substantially adopted the reasons of the motion judge, the decision in that case constituted a binding decision of this court on the issues it decided. As a result, lower courts, including the motion judge in this case, and this court were obliged to follow it, subject to counsel seeking an appeal to a five-judge panel of this court to reconsider it: see Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, 153 O.R. (3d) 465, at paras. 51-63.
. Chen v. Canada

In Chen v. Canada (Fed CA, 2023) the Federal Court of Appeal considered an appeal from the Tax Court regarding GST/HST rebates. In these quotes the court considers horizontal stare decisis:
[10] It is trite law that in the interests of certainty, consistency and predictability of the law, the Court normally follows its prior decisions (Miller v. Canada (Attorney General), 2002 FCA 370 at para. 9 (Miller); Feeney v. Canada, 2022 FCA 190 at para. 16). Indeed, decisions of a panel of this Court are decisions of the Court as a whole. Therefore, when a panel of appellate judges speak, they do so not for themselves, but for the Court. This is reflected in the principle of horizontal stare decisis, which dictates that decisions of a panel of an appellate court bind future panels of that court (Tan v. Canada (Attorney General), 2018 FCA 186, [2019] 2 FCR 648 at para. 24). This is no different when there is a dissenting opinion. Here, the decision binding on this panel is the opinion of the majority in Cheema, not the opinion of the dissenting judge (R. v. Kirkpatrick, 2022 SCC 33 at para. 257).

[11] It is only in “exceptional circumstances” that the Court will overrule the decision of another panel. This will generally occur when “the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed” (Miller at para. 10).
. Janssen Inc. v. Canada (Attorney General)

In Janssen Inc. v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal extensively considered the doctrine of 'horizontal' stare decisis:
[72] The aspect of the doctrine of stare decisis discussed in the previous section of these reasons involved the vertical convention—that is, the principle that lower courts and tribunals must follow the decisions of higher courts. However, stare decisis also includes a horizontal convention, which provides that decisions from the same level of court should be followed unless there is a compelling reason not to do so: Rowe and Katz, above at 6-7.

[73] As this Court observed in Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, while it is open to this Court to overrule its prior decisions, "“the values of certainty and consistency lie close to the heart of the orderly administration of justice in a system of law and government based on the rule of law”": at para. 8. As a result, one panel of this Court ought not to come to a different conclusion from a different panel, merely because it is of the view that the first decision was wrongly decided: Miller, above at para. 8.

[74] The Court went on in Miller to state "“in the interests of certainty and consistency, sound judicial administration requires that, save in exceptional circumstances, a Court of intermediate appellate jurisdiction should follow its prior decisions. The Court is responsible for the stability, consistency and predictability of the law”": Miller, above at para. 9.

[75] What are the "“exceptional circumstances”" that would warrant one panel of this Court departing from a decision of another panel? A prior decision may be overruled where that decision "“is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed”": Miller, above at para. 10.

[76] That is not the situation here. All of the members of the panel in Takeda were well aware of the governing jurisprudence, legislation and international instruments, as well as the relevant principles of statutory interpretation. Both the majority and the minority decisions are thorough and carefully reasoned. While the majority may not have made express reference to the North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, it was well aware of the fact that the Data Protection Regulations were intended to implement Canada’s obligations under NAFTA and TRIPS: see Takeda, above at para. 129. And while the majority may not have referred to section 12 of the Interpretation Act, R.S.C., 1985, c. I-21, neither did Justice Stratas, with the result that this is not a reason for preferring one decision over the other.

[77] Thus, Janssen has not shown "“exceptional circumstances”" in this case that would justify a departure from the majority decision in Takeda.

[78] However, Janssen says that this is not the end of the matter. It refers to the decisions of this Court in Tan v. Canada (Attorney General), 2018 FCA 186, [2019] 2 F.C.R. 648 and Bank of Montreal v. Li, 2020 FCA 22, 443 D.L.R. (4th) 688 which observe that the Supreme Court has taken a more liberal approach to issues of stare decisis in recent years. The Court has held that the certainty and predictability of stare decisis must sometimes give way where the economic, social and political circumstances underlying a decision have changed. There are two responses to this argument.

[79] The first is that this approach has most often been taken by the Supreme Court in cases involving the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: see, for example, Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and Carter v. Canada, above. The second is that, in any event, there is no admissible evidence before us that the economic, social or political circumstances underlying the Takeda decision have changed since that case was decided in 2013.

[80] We are, however, faced with an unusual situation in this case that bears comment. That is, Justice Stratas, the dissenting judge in Takeda, is a member of this panel. Does this change anything? The short answer is no.

[81] As Justice Stratas observed during the hearing, he wrote his dissenting opinion in Takeda because he believed that it was right, and he still thinks that his interpretation of the Data Protection Regulations is the preferable one. That does not, however, open the door for him to try to achieve a majority decision in this case.

[82] Every panel of this Court speaks for the Court, and no panel of the Court sits in appeal of other panels: Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA 267 at para. 2. As Rowe and Katz observe, "stare decisis" provides that judges should follow prior decisions, even if they disagree with them": above at 13. Indeed, in Knuller (Publishing, Printing and Promotions) v. D.P.P. [1972] 2 All E.R. 898, 3 W.L.R. 143, Lord Reid of the British House of Lords found himself in a similar position to that of Justice Stratas in this case. Lord Reid reluctantly followed an earlier decision from which he had dissented, stating "“[o]n reconsideration I still think that the decision was wrong … But I think that however wrong or anomalous the decision may be it must stand … unless or until it is altered by Parliament”": at 903. The same may be said here.


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