Professional Documents
Culture Documents
Stare Decisis
Stare Decisis
techniques of legal
reasoning and legal
argument
Copyright ©1987 Paul M. Perell
Originally published in (1987) 2:2,3 Legal Research Update 11 and republished with permission.
Introduction
It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution
of legal problems. Not surprisingly, there are laws about determining the law. One of the most important of
these laws is the law of precedent or stare decisis. That doctrine and its significance in practical terms are the
subject matters of this paper. This paper is also about how a lawyer in everyday practice answers a legal
question and how that lawyer evaluates and formulates legal arguments. The paper is only to a very limited
extent concerned about the practical problems of how to find or look up the law; rather, the concern is how a
lawyer should deal with the authorities that he or she finds. Because different legal systems have different
approaches to the proper way of deciding a legal point, the perspective will be Canadian and primarily that of
Ontario.
In Learning the Law (9th ed. 1973), Glanville Williams describes the doctrine in practical terms:
What the doctrine of precedent declares is that cases must be decided the same way when their material facts
are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of
life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the
doctrine is concerned.
The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the
decision thereon. The same learned author2 who advanced this definition went on to suggest a helpful formula.
Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are
material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for
the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C
exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist,
and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an
analogy.3
It follows from William’s analysis that the addition of fact D to a future case means that conclusion X may or
may not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future
case from the precedent or conversely the precedent may be extended to apply to the future case.
There is considerable literature about whether the doctrine of stare decisis is a good or bad one 4 but, the
doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law
and also by notions of justice and fairness. Benjamin Cardozo in his treatise, The Nature of the Judicial
Process stated:
It will not do to decide the same question one way between one set of litigants and the opposite way between
another. “If a group of cases involves the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I
was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a
feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my
rights.”5 Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in
the even-handed administration of justice in the courts.6
In Sweney v. The Department of Highways,7 Middleton J.A. for the Ontario Court of Appeal stated:
But, in my view, liberty to decide each case as you think right, without regard to principles laid down in
previous similar cases, would only result in a completely uncertain law in which no citizen would know his
rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge
would take on a consideration of the matter, without any regard to previous decisions.8
That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the
observation of American philosopher William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and
one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the
responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity
after all between the individuals concerned and their circumstances, he or they will be guilty as charged. 9
The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to
unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:
If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice
which they should serve, they may find the whole edifice comes tumbling down about them. Just as the
scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from
them builds up his general propositions, so the lawyer should take his precedents and from them build up his
general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all
instances, or even discarded when shown in error, so the principles of the lawyer should be modified when
found to be unsuited to the times or discarded when found to work injustice.10
The Supreme Court can no longer be content to say that the case is governed by an earlier decision either of
its own or of the Privy Council unless the decision provides the proper reconciliation of the competing
interests which are involved.16
All Canadian courts are bound to follow a precedent of the Supreme Court of Canada 17 and any pre-
1949 decision of the Privy Council which has not been overruled by the Supreme Court of Canada. A
minority opinion of the Supreme Court of Canada is, however, not binding.18
The Ontario Court of Appeal is not bound to follow a decision of the appellate court of another
province.19
The Ontario Court of Appeal will generally be bound by its own prior decisions unless the liberty of
the subject is involved or unless the prior decision was given per incuriam, that is, inadvertently without
consideration of an applicable authority or statutory provision.20 It should be noted by comparison that
appellate courts in certain other provinces have allowed themselves greater freedom in overruling their own
prior decisions.21
All Ontario provincial courts lower than the Court of Appeal are bound to follow a decision of the
Ontario Court of Appeal.22 A Divisional Court decision as a decision of an intermediate court of appeal
would bind lower courts. (It should be noted that the Divisional Court also sits as a court of first instance.)
All Ontario provincial courts are not bound by the decisions of the appellate courts of other provinces
or by decisions of the Federal Court of Appeal.23
A decision of a court of co-ordinate jurisdiction is not binding24 although where there is conflict it may
be appropriate to refer the case to the Court of Appeal.25 It should be noted that in certain circumstances,
the District Court may have co-ordinate jurisdiction with the High Court and not be obliged to follow the
decision of the otherwise higher court.26 Similarly, it seems that with respect to procedural matters, the
Master’s Office and the District Court may be considered to be co-ordinate courts.
While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is
because of the concept of judicial comity which is the respect one court holds for the decisions of another.
As a concept it is closely related to stare decisis. In the case of R. v. Nor. Elec. Co.,27McRuer C.J.H.C.
stated:
I think Hogg J. stated the right common law principle to be applied in his judgment in Rex ex rel.
McWilliam v. Morris, [1942] O.W.N. 447 at 448-9, where he said: “The doctrine of stare decisis is one
long recognized as a principle of our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6th ed.,
p. 321: “The decisions of an ordinary superior court are binding on all courts of inferior rank within the
same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court
itself, will be followed in the absence of strong reason to the contrary…”.
I think that “strong reason to the contrary” does not mean a strong argumentative reason appealing to the
particular judge, but something that may indicate that the prior decision was given without consideration of
a statute or some authority that ought to have been followed. I do not think “strong reason to the contrary”
is to be construed according to the flexibility of the mind of the particular judge.
Nonetheless it must be acknowledged that Rivtow has been variously applied or rejected by the courts of
this country, some of whom find in the majority judgment recognition of economic loss and some of whom
have found the opposite.31
The lawyer can argue that while the precedent case does articulate the legal proposition for which it
has been cited, nevertheless the proposition was obiter dicta (things said by the way). Subject to an
exception for considered pronouncements of the law by appellate courts, comments by the judge which are
not part of the ratio decidendi are obiter dicta and are theoretically not binding in a subsequent case. 32 The
exception is that where an appellate court expresses a considered opinion on a point of law then such ruling
is binding on the lower courts notwithstanding that it was not absolutely necessary to rule on the point in
order to dispose of the appeal.33It should be noted that if a judge rests his decision on two different grounds
neither can be characterized as obiter dictum.34
The lawyer can argue that while the precedent case does stand for the legal proposition for which it
has been cited, the case has been effectively overruled by a decision of a high court or by the introduction
of a new statute. Examples of this kind of legal argument will obviously occur after significant decisions of
the Supreme Court of Canada. For instance that Court’s decision in Kamloops v. Nielsen35 did away with
the distinction between non-feasance and misfeasance in negligence actions against municipalities and
many old cases which turned on that distinction can no longer be relied upon.
The lawyer can argue that while the precedent case does stand for the legal proposition for which it
has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville
Williams suggests that there are two kinds of “distinguishing”: restrictive and non-restrictive and states:
Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier
case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi
because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio
decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier
case, which the earlier court regarded as immaterial.
An example of restrictive distinguishing may be noted in the House of Lords decision in Peabody
Fund v. Sir Lindsay Parkinson Ltd.,36 where the Court restricted the application of Anns v. Merton London
Borough.37 The Anns case is cited as authority for the proposition that a municipality may be liable in
negligence where it fails to properly inspect building plans. In the Peabody Fund case, by defining the duty
of the municipality as being owed to owners and occupiers threatened with the possibility of injury to
safety or health, the House of Lords specified and made less general, the scope of the municipality’s
responsibility as it had been defined in the Anns case. In the result, the Court did not allow a claim by the
developer of a housing project who suffered damages when the municipality’s drainage inspector failed to
point out that the drainage system was not being installed in accordance with the approved design. 38 Thus,
in Peabody Fund the element of restrictive distinguishing is the introduction of the requirement of the
possibility of injury to safety or health.
An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision
in Town of the Pas v. Porky Packers Ltd.39 In this case, the Court noted that the authority of Hedley Byrne
Co. Ltd. v. Heller40 required the plaintiff in a negligent misrepresentation claim to show that he relied on
the skill and judgment of the party from whom he had received incorrect information. In thePorky
Packers case the plaintiff had received incorrect zoning advice from municipal officials but the plaintiff’s
representative was a former municipal council member who had more expertise in planning matters than
the officials. In these circumstances, there could be no reliance and the doctrine or authority of Hedley
Byrne by its own criteria was not available. The plaintiff’s claim was dismissed. The material fact of the
plaintiff’s lack of reliance provided the element for non-restrictive distinguishing ofHedley Byrne.
Where the case being relied upon has a built in public policy factor, the lawyer who wishes to
distinguish the case may argue that public policy has changed and while the legal principle of the precedent
case is still good law, it is distinguishable because of the change of circumstances. The possibility of this
type of argument was noted in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co.,41 an
important case with respect to the principle that contracts in restraint of trade may be voidable on grounds
of public policy. In his judgment in this case, Lord Watson noted:
A series of decisions based upon grounds of public policy, however eminent the judges by whom they were
delivered, cannot possess the same binding authority as decisions which deal with and formulate principles
which are purely legal.42
The lawyer can argue that while the precedent case does stand for the legal proposition for which it
has been cited, there is another precedent of equal weight which stands for the opposite proposition. The
lawyer then goes on to argue that it is that other case which the court should follow. This type of argument
is related to but in the end result different from the “per incuriam argument” because it does not necessarily
challenge either decision as having been given per incuriam. The rule is rather that the court may decide
which one of the conflicting decisions to follow. Interestingly and as will be seen in a somewhat ironical
way, the availability of this rule in Ontario is itself an example of the rule. The legal argument follows.The
1876 Ontario appellate decision of Fisken et al. v. Meehan43 is authority for the proposition that where
there are conflicting decisions of equal weight the court should follow the more recent decision. Lower
courts followed the Fisken et al. v. Meehan rule in Bank of Montrealv. Bailey and Bailey,44 and
in Chiwniak v. Chiwniak,45 although in Chiwniak Wilson J. described the duty imposed by the rule to be
presumptuous.46However, in Hamilton v. Hamilton47 Middleton J., sitting as a lower court judge, said that
where there are conflicting decisions, the lower court judge may follow the decision which commends
itself most to him. Unfortunately, Middelton J. does not cite the Fisken case and
the Hamilton v. Hamilton decision may thus be said to have been given per incuriam. But, in 1958 the
Court of Appeal decided Woolfrey v. Piche.48 In that case, LeBel J.A. stated:
…but I am now faced with two conflicting decisions in this Court on the same point, and in that
unfortunate state of things I apprehend that I must choose between them as I have done. That is what was
done in Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718, where three exceptions to the application of the
rule in Velazquez [the stare decisis rule] were stated. One of these (the first incidentally) is that “the court is
entitled and bound to decide which of two conflicting decisions of its own it will follow”. [p. 729] There is
authority also for the proposition that where two cases cannot be reconciled, the more recent and the more
consistent with general principles ought to prevail. See Campbell v. Campbell (1880), 5 App. Cas. 787 at
p. 798.49[emphasis added]
The Fisken decision is again not cited but its principle that the later of two conflicting cases should be
followed is acknowledged but qualified by the requirement that the later case be more consistent with
general principles. Thus, to the extent that there is any inconsistency
between Fisken v. Meehen withWoolfrey v. Piche, the Fisken case directs that Woolfrey be followed. If
the Woolfrey rule is used to resolve any conflict in authority between the cases, it must come down on its
own side or it would not be an authority. If there is no inconsistency between the cases because of the
qualification or explanation noted by LeBel J.A. then again the Woolfrey rule will be followed.
At present I content myself with pointing out that in English law there must be, and is, some general
conception of relations giving rise to a duty of care, of which the particular cases found in the books are but
instances.53
His Lordship then went on to complete his famous speech which is the foundation of the modern law of
negligence. In his approach, we can again note the spirit of stare decisis. Lord Atkin did not ignore the
precedents. Instead he found within them an underlying principle which he then applied. In a sense, Lord
Atkin looked backward before he moved the law forward. Further, his argument was not based on any
assertion that the principle he was articulating was the next logical step in the law. Indeed, an appeal to
pure logic is difficult because established precedents may prevent the law from developing as a matter of
logical progression. Lord Halsbury in Quinn v. Leathen54 stated:
A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a
proposition that may seem to logically follow from it. Such a mode of reasoning assumes that the law is
necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at
all.55
Thus, McAlister (or Donoghue) v. Stevenson does not offend the letter or spirit of the doctrine of stare
decisis and provides a classic example of legal reasoning and legal argument in circumstances where there
was no near precedent for the case.
Conclusion
This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However,
it must be conceded that stare decisis is only a part of this topic. There is much more. There are substantive
rules for the interpretation of statutes and there are special rules and considerations when the statute is a tax act
or a criminal code or a constitutional document. There are special and often difficult rules for the interpretation
of contracts and testamentary instruments. There are unique considerations when principles of the law of
equity are involved and problems caused by the evidentiary rules of onus of proof or of rebuttable and
irrebuttable presumptions. yet, while the multitude of these rules provides the lawyer with a large variety of
other tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare decisis
continues to play the pivotal role.
Endnotes
1. Gerald L. Gall, The Canadian Legal System, 2nd ed. (Toronto: Carswell Legal Publications, 1983) at 220.
This text includes an excellent bibliography on this subject including a lengthy list of cases and articles.
2. The reference is to Goodhart, “Determining the Ratio Decidendi of a Case”, Essays in Jurisprudence and
the Common Law (1931) 1.
3. Glanville Williams, Learning the Law, 9th ed. (1973) at 67-68. See also S.M. Waddams, Introduction to the
Study of Law, 2nd ed. (Toronto: Carswell, 1983) at 102-118.
4. For example, The Rt. Hon. Lord Denning, The Discipline of the Law (London: Butterworths, 1979) at 285-
314; Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University
Press, 1921) at 9-50; Friedman, “Stare Decisis at Common Law and under the Civil Code” (1953) 31 Can. Bar
Rev. 722; MacGuigan, “Precedent and Policy in the Supreme Court of Canada” (1967) 45 Can. Bar Rev. 627;
Weiler, “Legal Values and Judicial Decision Making” (1970) 48 Can. Bar Rev. 1 and Bale, “Casting Off the
Mooring Ropes of Binding Precedent” (1980) 58 Can. Bar Rev. 255.
5. The quote is from W.G. Miller, The Data of Jurisprudence, at 335.
6. See Cardozo, supra, note 4 at 33-34.
7. [1933] O.W.N. 783 (C.A.).
8. Ibid. at 783-4.
9. William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice-Hall Inc., 1973) at 49.
10. See Denning, supra, note 4 at 292.
11. 23 & 24 Geo. V, c. 53, s. 17.
12. 13 Geo. VI, c. 37.
13. See for example, R.S.O. 1927, c. 88, s. 31(2).
14. Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234 (H.L.).
15. Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; A.V.G. Management Science
Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43; Min. of Indian Affairs & Northern
Dev. v. Ranville(1982), 141 D.L.R. (3d) 577 (S.C.C.), rev’g (1980), 115 D.L.R. (3d) 512 (Ont. C.A.) which
aff’d (1980), 107 D.L.R. (3d) 632 (Ont. S.C.).
16. See Bale, supra, note 4 at 260.
17. Wolf v. The Queen (1974), 47 D.L.R. (3d) 741 (S.C.C.).
18. Re Ward (1975), 5 O.R. (2d) 35 (Div. Ct.).
19. Wolf v. The Queen, supra, footnote 9.
20. R. v. Eakins, [1943] O.R. 199 (C.A.); R. v. McInnis (1973), 1 O.R. (2d) 1 (C.A.); Re Hardy Trust, [1955]
5 D.L.R. 10 (Ont. C.A.); R. v. Godedarov (1974), 3 O.R. (2d) 23 (C.A.); Ex parte Pickett (1976), 12 O.R. (2d)
195 (C.A.).
21. See Gall, supra, note 1 at 226, and authorities there cited.
22. Re Canada Temperance Act: Re Consolidated Rule of Practice, [1939] O.R. 570, aff’d (sub. nom. A.G.
Ont. v. Can. Temperance Federation) [1946] A.C. 193 (P.C.); R v. Morris, [1942] O.W.N. 447.
23. Bedard v. Isaac, [1972] 2 O.R. 391. Rev’d on other grounds (sub.nom. Issac v. Bedard) 38 D.L.R. (3d)
481; Re Commonwealth of Virginia and Cohen (No. 2) (1973), 1 O.R. (2d) 262; R. v. Guertin, [1971] 2 O.R.
505 (Co. Ct.); R. v. Beaney, [1969] 2 O.R. 71 (Co. Ct.); Norris v. Hamilton, [1943] O.W.N. 566; Xerox Can.
Inc. v. Neary (1984), 43 C.P.C. 274 (Ont. Prov. Ct.).
24. R. v. Nor. Elec. Co., [1955] O.R. 431; R. v. Groves (1977), 17 O.R. (2d) 65.
25. See R. v. Nor. Elec. Co., supra, note 25 and Rule 22, Ontario Rules of Civil Procedure and formerly s.
34, Judicature Act, R.S.O. 1980, c. 223.
26. Masse v. Dietrich, [1971] 3 O.R. 359.
27. [1955] O.R. 431.
28. Law Society of Upper Canada, Professional Conduct Handbook, Rule 8, Commentary 1(h) and authorities
there cited.
29. [1974] S.C.R. 1189.
30. (1985), 15 D.L.R. (4th) 132 (S.C.C.).
31. Ibid. at 139.
32. Landreville v. Gouin (1884), 6 O.R. 455.
33. R. v. Sellars, [1980] 1 S.C.R. 527; Ottawa v. Nepean, [1943] 3 D.L.R. 802 (Ont. C.A.); Re McKibbon and
R. (1981), 34 O.R. (2d) 185, aff’d 35 O.R. (2d) 124 aff’d on other grounds (sub nom. R. v. McKibbon, [1984] 1
S.C.R. 133; Woloszcuk v. Onyszczak (1976), 1 C.P.C. 129 (Ont.).
34. Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, rev’g 17 O.L.R. 436, aff’d [1911] A.C. 120 (P.C.);
6C.E.D. (Ont. 3rd) Courts, para. 389.
35. [1984] 5 W.W.R. 1 (S.C.C.).
36. [1984] 2 W.L.R. 953 (H.L.).
37. [1978] A.C. 728 (H.L.).
38. The law in Canada may be different. See an article by the writer published in the Advocates’ Quarterly:
“Common Law Negligence and the Liability of Governments and Public Authorities”.
39. (1976), 65 D.L.R. 1 (S.C.C.).
40. [1963] 2 All E.R. 575.
41. [1894] A.C. 535, and see the discussion in Friedman, supra, note 4 at 736-737.
42. [1894] A.C. 535 at 553.
43. (1876), 40 U.C.Q.B. 146.
44. [1943] O.R. 406.
45. [1972] 2 O.R. 64.
46. Ibid. at 69.
47. (1920), 47 O.L.R. 359.
48. (1958), 13 D.L.R. (2d) 605.
49. Ibid. at 608.
50. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of
theCanada Act 1982 (U.K.), 1982, c. 11, s. 1.
51. [1911] A.C. 301 (P.C.).
52. [1932] A.C. 562 (H.L.).
53. Ibid. at 580.
54. [1901] A.C. 495 (H.L.).
55. Ibid. at 506.