The Litigator
The Litigator
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Supreme Court of Canada clarifies courts have an obligation to follow decisions of courts at the same level in most cases

The Supreme Court of Canada released a decision today (R. v. Sullivan 2022 SCC 19) dealing with an important issue relating to the constitutionality of a provision of the Criminal Code relating to self-induced intoxication and the automatism defence. The R. v. Sullivan decision also provided some much more far-reaching directions regarding the precedential value of prior decisions of courts of coordinate jurisdiction (i.e., the same level of court). In particular, it directed that prior decisions must be followed other than in three very narrow situations:

  1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
  2. The earlier decision was reached by inadvertence (failed to consider a binding precedent or relevant statutory provision);
  3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

Of course, if a case is factually distinguishable, a prior precedent may not be applicable. But it is not open to a Superior Court judge to consider afresh a legal issue if that issue has already been decided by a brother/sister judge of that same bench.  Even if the judge thinks that the earlier decision is wrong, they are bound to follow it.

This is a pretty significant change to the way most lawyers understand how stare decisis operates. It will be interesting to see how this decision reverberates.

David N. Vaillancourt
Affleck Greene McMurtry LLP

David N. Vaillancourt

David’s practice expertise focuses on all matters of Commercial and Civil Litigation, Competition and Administrative Law.

David has acted for clients in a wide range of disputes, including shareholder and partnership disputes, securities litigation, class action defence, proceedings under the Competition Act, employment law disputes, contract disputes, breach of confidence/intellectual property disputes, fidelity bond claims, and professional negligence claims.

David has appeared before all levels of court in Ontario, including the Court of Appeal for Ontario, and has also appeared before the Competition Tribunal and the Federal Court of Appeal. David has appeared as lead counsel in numerous trials, hearings, and motions. David has been successful in numerous adversarial proceedings, and also has successfully negotiated the resolution of dozens of cases.

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