Stare Decisis - General. United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc.
In United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (Div Ct, 2021) the Divisional Court highlighted the activist-essential point that stare decisis applies to bind courts on previously-argued Charter legal arguments:
 A lower court can depart from the principle of vertical stare decisis only in limited circumstances. As stated by the Supreme Court of Canada in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 42:. Janssen Inc. v. Canada (Attorney General)
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.See, as well, R. v. Comeau, 2018 SCC 15 (CanLII),  1 S.C.R. 342 at para. 29.
In Janssen Inc. v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal extensively considered the doctrine of 'horizontal' stare decisis:
 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.. Duggan v. Durham Region Non-Profit Housing Corporation
 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.
 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.
 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.
 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.
 Thus, Janssen has not shown "“exceptional circumstances”" in this case that would justify a departure from the majority decision in Takeda.
 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,  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.
 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,  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.
 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.
 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.
 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, s"tare 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.  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.
In Duggan v. Durham Region Non-Profit Housing Corporation (Ont CA, 2020) the Court of Appeal considered the doctrine of stare decisis, which it defines as follows:
 The doctrine of stare decisis requires that all courts follow and apply authoritative precedents. Intermediate appellate courts, like the Divisional Court, are generally bound by their past decisions: Kovach (Divisional Court), at para. 42; Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 45. As Sharpe J.A. explained in Fernandes, at para. 45, this doctrine is a bedrock principle of our legal system:It continues at para 51-63 to consider it's application to the case.
As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed by the Latin phrase stare decisis, we stand by things that have been decided. The rule of precedent provides certainty, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly.
. Royal Bank of Canada v. Trang
In Royal Bank of Canada v. Trang (Ont CA, 2014) the Court of Appeal considered (but rejected) whether it should decline to apply an earlier Court of Appeal decision as a precedent in the case because the prior decision, while deciding a similar fact issue, did not consider a legal argument that the parties had raised in the present case:
 Strictly applied, the principle of stare decisis – “stand by things decided” – means we ought to follow Citi Cards even if we disagree with it. Per incuriam is a well-recognized exception to stare decisis. Literally, per incuriam means “through lack of care”; in law, it means a decision made without regard to a statutory provision or earlier binding authority.. Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636
 Under the per incuriam exception, the court may depart from one of its previous decisions if two conditions are met:
• The panel deciding the earlier case did not advert to judicial or statutory authority binding on it; andSee David Polowin Real Estate Ltd v. Dominion of Canada General Insurance Co., (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), at paras. 107-11, leave to appeal to S.C.C. refused,  S.C.C.A. No. 390.
• If the panel had considered this authority, it would have decided the case differently.
 The reasons in Citi Cards do not refer to cl. 4.3.6 of Schedule 1 to PIPEDA. That does not automatically mean the panel failed to consider the clause. But even assuming that the first condition for applying the per incuriam exception has been met, the second condition has not. Clause 4.3.6 would not have changed the result in Citi Cards because it does not permit a mortgagee to disclose a discharge statement to a judgment creditor of the mortgagor. The mortgagee does not have the mortgagor’s implied consent to do so.
In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636 (Ont CA, 2020) the Court of Appeal considered aspects of stare decisis:
 As a general rule, this court is bound to follow its past decisions, even if an individual judge or a different panel of the court disagrees with them. As Sharpe J.A. explained on behalf of a five-judge panel in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 45:. R. v. Comeau
As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed in the Latin phrase stare decisis, we stand by things that have been decided. The rule of precedent provides certainty, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly.
 Even so, this court may depart from its own precedents. When this court is asked to overrule one of its own decisions, the court first asks whether the earlier decision was correctly decided. If the court determines that the earlier decision was wrongly decided, the court then asks whether the decision should be overruled, based on weighing the “advantages and disadvantages of correcting the error”, by focusing on “the nature of the error, and the effect and future impact of either correcting it or maintaining it”, including “the effect and impact on the parties and future litigants” and “on the integrity and administration of our justice system”: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), at paras. 107, 127, leave to appeal refused,  S.C.C.A. No. 388; see also R. v. Jenkins, 2010 ONCA 278, 99 O.R. (3d) 561, at para. 29, leave to appeal refused,  S.C.C.A. No. 223; Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90, 118 O.R. (3d) 641, at para. 15, aff’d 2015 SCC 60,  3 S.C.R. 801; and United States v. Aneja, 2014 ONCA 423, 120 O.R. (3d) 620, at para. 58.
In R. v. Comeau (SCC, 2018) the Supreme Court of Canada thoroughly considered the rare issue of stare decisis, here in the context of a non-Charter constitutional case:
A. Did the Trial Judge Err in Departing From Binding Precedent and Providing His Own Interpretation of Section 121 of the Constitution Act, 1867?. Canada (Attorney General) v Confédération des syndicats nationaux
 The trial judge accepted that this Court’s decision in Gold Seal was binding authority and that, applying Gold Seal, s. 134(b) of the Liquor Control Act does not violate s. 121 of the Constitution Act, 1867. He went on to hold, however, that Gold Seal had been wrongly decided and that therefore he should not follow it.
 The decision of this Court in Gold Seal was expressly affirmed by the Judicial Committee of the Privy Council in Atlantic Smoke Shops Ltd. v. Conlon, 1943 CanLII 372 (UK JCPC),  4 D.L.R. 81, at pp. 91-92, and by a majority of this Court in Murphy v. Canadian Pacific Railway Co., 1958 CanLII 1 (SCC),  S.C.R. 626, at p. 634. It has never been overruled, although some Justices of this Court have interpreted it to apply not only to tariffs, but to tariff-like burdens on goods crossing provincial boundaries: Murphy, at p. 642, per Rand J.; Reference re Agricultural Products Marketing Act, 1978 CanLII 10 (SCC),  2 S.C.R. 1198, at p. 1268, per Laskin C.J.; Black v. Law Society of Alberta, 1989 CanLII 132 (SCC),  1 S.C.R. 591, at p. 609, per La Forest J.; Canadian Pacific Air Lines Ltd. v. British Columbia, 1989 CanLII 94 (SCC),  1 S.C.R. 1133, at p. 1153, per La Forest J.; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC),  3 S.C.R. 157, at paras. 123 and 171, per McLachlin J. (as she then was).
 For the stare decisis issue, we need not decide between these interpretations (although we address them later in these reasons). The trial judge’s reading of s. 121 — that it precludes any laws that impede goods crossing provincial boundaries — is incompatible with both interpretations.
 Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.
 The question before us is whether the trial judge erred in rejecting this Court’s precedent, which he acknowledged was binding, and re-interpreting s. 121. In doing so, he relied on one historian’s evidence of the drafters’ motivations for including s. 121 in the Constitution Act, 1867 and that expert’s opinion of what those motivations tell us about how s. 121 should be interpreted today.
 The trial judge relied on one of the narrow exceptions to vertical stare decisis identified by this Court in Bedford. The respondent argues that the trial judge was entitled to do so on the basis of the expert’s evidence. The appellant demurs. We agree with the appellant.
 In Bedford, this Court held that a legal precedent “may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”: para. 42. The trial judge, relying on the evidence-based exception identified in that excerpt from Bedford, held that the historical and opinion evidence he accepted “fundamentally shifts the parameters of the debate” over the correct interpretation of s. 121, referring to this Court’s treatment of the question in Gold Seal.
 The new evidence exception to vertical stare decisis is narrow: Bedford, at para. 44; Carter v. Canada (Attorney General), 2015 SCC 5,  1 S.C.R. 331, at para. 44. We noted in Bedford, at para. 44, that
a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. . . . This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. Not only is the exception narrow — the evidence must “fundamentally shif[t] the parameters of the debate” — it is not a general invitation to reconsider binding authority on the basis of any type of evidence. As alluded to in Bedford and Carter, evidence of a significant evolution in the foundational legislative and social facts — “facts about society at large” — is one type of evidence that can fundamentally shift the parameters of the relevant legal debate: Bedford, at paras. 48-49; Carter, at para. 47. That is, the exception has been found to be engaged where the underlying social context that framed the original legal debate is profoundly altered.
 In Carter, for example, new evidence about the harms associated with prohibiting assisted death, public attitudes toward assisted death, and measures that can be put in place to limit risk was relevant. This evidence was unknowable or not pertinent, given the existing legal framework, when Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC),  3 S.C.R. 519, was decided. These new legislative and social facts did not simply provide an alternate answer to the question posed in Rodriguez. Instead, the new evidence fundamentally shifted how the Court could assess the nature of the competing interests at issue.
 This focus on shifting legislative and social facts is conceptually linked to Lord Sankey’s famous “living tree” metaphor, which acknowledges that interpretations of the Constitution Act, 1867 evolve over time, given shifts in the relevant legislative and social context: Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC),  1 D.L.R. 98 (P.C.), at pp. 106-7. In Edwards, both legal and social changes that had opened the door to women’s increased integration into public life after Confederation confirmed that it was no longer appropriate to read the term “person” in the impugned constitutional provision as anything other than its plain gender-neutral meaning: pp. 110-12.
 To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question.
 This high threshold was not met in this case.
 The trial judge accepted the expert’s evidence in question on two points — one of history, the other of law. He accepted (1) the expert’s description of the drafters’ motivations for including s. 121 in the Constitution Act, 1867, and (2) the expert’s opinion that those motivations drive how s. 121 is to be interpreted. Neither class of evidence constitutes evidence, for example, of evolving legislative and social facts; the evidence is simply a description of historical information and one expert’s assessment of that information. This does not evince a profound change in social circumstances from the time Gold Seal was decided. It is evidence of one perspective of events that occurred decades before the Gold Seal company brought its case to the courts and a century before this Court’s discussion of s. 121 in Murphy. Historical evidence can be helpful for interpreting constitutional texts: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC),  1 S.C.R. 295, at p. 344; R. v. Blais, 2003 SCC 44,  2 S.C.R. 236. However, a re-discovery or re-assessment of historical events is not evidence of social change.
 Because the historical evidence accepted by the trial judge is not evidence of changing legislative and social facts or some other fundamental change, it cannot justify departing from vertical stare decisis. Differing interpretations of history do not fundamentally shift the parameters of the legal debate in this case. While one’s particular collection of historical facts or one’s view of that historical evidence may push in favour of a statutory interpretation different from that in a prior decision, the mere existence of that evidence does not permit the judge to depart from binding precedent.
 The trial judge held otherwise. He concluded that this Court in Gold Seal did not conduct a broad and purposive interpretation of the provision — the approach established by Edwards about a decade after Gold Seal was decided. He went on to conclude that this gap meant that the expert’s “new” evidence of historical context could open the door to a re-interpretation: paras. 42 and 116.
 Although it is true that Gold Seal was decided prior to Edwards and was arguably interpreted under a different rubric than constitutional provisions under the shadow of the living tree, it does not follow that the historical evidence permitted the trial judge to bypass an existing binding interpretation on the basis of a new understanding of the legislative context and history. First, Atlantic Smoke Shops and Murphy, which applied Gold Seal, were decided after Edwards. Second, the trial judge’s interpretation was limited entirely to the words and context of the provision in light of the historical evidence. This methodology does not conform to the purposive approach to constitutional interpretation that has grown out of Edwards and decades of subsequent jurisprudence: Hunter v. Southam Inc., 1984 CanLII 33 (SCC),  2 S.C.R. 145, at pp. 155-56; Big M Drug Mart, at p. 344; Reference re Same-Sex Marriage, 2004 SCC 79,  3 S.C.R. 698, at paras. 29-30; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56,  2 S.C.R. 669, at para. 9; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21,  1 S.C.R. 433, at para. 19.
 In addition to the historical evidence of the founders’ intentions, the trial judge also relied on the expert’s opinion of the correct interpretation of s. 121. This reliance was erroneous. As a preliminary observation, it is difficult if not impossible to contemplate a situation where evidence on domestic law (e.g. interpreting a Canadian statute) would ever be admissible as expert opinion evidence under R. v. Mohan, 1994 CanLII 80 (SCC),  2 S.C.R. 9. The application of contextual factors, including drafters’ intent, to the interpretation of a statutory provision is not something that is “outside the experience and knowledge of a judge”: Mohan, at p. 23. To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert.
 More to the point in the present matter: to rely on such evidence to rebut vertical stare decisis is to substitute one expert’s opinion on domestic law for that expressed by appellate courts in binding judgments. This would introduce the very instability in the law that the principle of stare decisis aims to avoid. This is precisely why the exceptions provided in Bedford and Carter are narrow. If a constitutional provision could be reinterpreted by a lower court whenever a litigant finds an expert with an alternate interpretation, the common law system would be left in disarray. This is not what Bedford and Carter teach. The approach to stare decisis is strict. Bedford and Carter do not alter that principle.
 Moreover, a difference in opinion about the interpretation of a statutory provision does not evince a fundamental shift in the parameters of the debate. The debate and its parameters remain unchanged. The only change is the answer provided.
 The trial judge erred in departing from binding precedent on the basis of the historical evidence and the expert’s opinion of how that evidence should inform the interpretation of s. 121. Neither is new evidence that meets the threshold of fundamentally shifting the parameters of the debate about how to interpret s. 121. The historical evidence is one non-dispositive ingredient in the multi-faceted statutory interpretation exercise. The opinion evidence is simply one unique articulation of an alternate resolution flowing out of a particular appreciation of those ingredients — the recipe remains the same.
In Canada (Attorney General) v Confédération des syndicats nationaux (SCC, 2014), the Supreme Court of Canada briefly considered the doctrine of stare decisis, partly in contrast with the doctrine of res judicata:
 Of course, the doctrine of stare decisis is no longer completely inflexible. As the Court noted in Bedford, the precedential value of a judgment may be questioned “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (para. 42). Where, on the other hand, the legal issue remains the same and arises in a similar context, the precedent still represents the law and must be followed by the courts (Bedford, at para. 46).
 Although relatively uncommon in Quebec civil procedure, the mechanism for dismissing actions at a preliminary stage on the basis of stare decisis is similar to the res judicata exception (art. 165(1) C.C.P.). Under both of them, the legal issues raised by the applicant must already have been clearly resolved by the courts. However, unlike res judicata, stare decisis does not necessarily require that the dispute be between the same parties. What must be established is that the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata.
 In Canada v. Imperial Tobacco, Gascon J.A., as he then was, explained this as follows:
[translation] In this context, the manufacturers’ argument that this case is not res judicata, because Imperial was not decided by a court of competent civil law jurisdiction or because strict identity of parties, cause and object is not established, does not appear to me to be determinative. I see no need for further discussion of the distinctions the manufacturers raise with respect to these identities of parties, cause and object, which in their view refute the AGC’s res judicata argument. In my opinion, the appropriate principle to apply to resolve the issue is instead stare decisis.......
The Superior Court should have held on the basis of stare decisis that it was bound by Imperial. The Supreme Court, by ruling as it did on the issue of the AGC’s immunity in relation to the course or principle of action challenged by the manufacturers, had in a sense barred the manufacturers’ actions in warranty by rendering them unfounded in law, even if the alleged facts were assumed to be true.
Stare decisis is a less stringent basis for an argument than res judicata, since it requires only a similar or analogous factual framework. Stare decisis is a principle “under which a court must follow earlier judicial decisions when the same points arise again in litigation” [Black’s Law Dictionary (9th ed. 2009), at p. 1537]. It applies, of course, to decisions of the Supreme Court, particularly in the area of public law as here, where the parties were involved in earlier litigation on the specific question at issue. [Emphasis added; paras. 125‑27.]
 In our opinion, it is clear that the unions’ action has no reasonable chance of success. On the basis of stare decisis, it is apparent that their main argument that the Consolidated Revenue Fund was indebted to the Employment Insurance Account is unfounded, and this conclusion dictates the outcome of the case. As a result, this Court’s decision in CSN v. Canada provides a complete, certain and final solution to the entire dispute that the unions are trying to revive. Their action was therefore properly dismissed by Perrault J. under art. 165(4) C.C.P.