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Stare Decisis - Horizontal. Best Buy Canada Ltd. v. Canada (Border Services Agency)
In Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismisses a joint appeal/JR application, here seeking to "set aside the decision of the Canadian International Trade Tribunal".
Here Stratas JA usefully discusses stare decisis (in the relationship between decisions of courts of different rank), and horizontal stare decisis (in the relationship between decisions of courts of same rank):A. The statutory appeal
[2] The Tribunal classified certain goods, wine coolers, for tariff purposes. The appellant says that in doing so, the Tribunal erred in law by following an earlier decision of this Court: Danby Products Limited v. Canada (Border Services Agency), 2021 FCA 82, leave dismissed on January 20, 2022 (S.C.C. No. 39755). The appellant urges us to reverse Danby. If Danby still applies, we must dismiss the appeal.
[3] Danby decided the issues in this case, particularly the issues of legislative interpretation. We must follow Danby and cannot consider new issues related to legislative interpretation like the presumption of ordinary meaning, unless Danby is "“manifestly wrong”", i.e., it "“overlooked a relevant statutory provision, or a case that ought to have been followed”" or can be distinguished on its facts: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460; Miller v. Canada, 2002 FCA 370 at para. 10. We are an intermediate appellate court, not an apex court like the Supreme Court. We can depart from previous decisions only exceptionally when the exacting criteria in Miller are met.
[4] In Danby, this Court cited portions of Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis, 2014). The appellant says this Court did not rely on other portions of the Sullivan text, thereby "“overlooking an authority”". But under Miller at para. 10, "“overlooking an authority”" is a high, rarely met threshold: the fundamental basis of the previous authority must be open to serious question or is incontestably wrong. This promotes stability, a highly prized value: Canada v. Boloh 1(a), 2023 FCA 120 at para. 24.
[5] Here, rather than working within the strictures of Miller, the appellant reargues the merits of Danby, going deeply into its reasoning, such as how it used the Sullivan text or went about legislative interpretation. It does so, just like we are sitting in an appeal from Danby. But we do not sit on appeal from other panels: Ignace v. Canada (Attorney General), 2019 FCA 239 at para. 27; Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA 267, [2017] 3 F.C.R. 145 at para. 2. In this case, if Danby is to be reversed, the appellant should seek leave to the Supreme Court.
[6] The appellant says that the evidentiary record in Danby was sparse compared to this case, it answered a call in Danby for evidence of trade meaning, and so we should revisit Danby. But, in a factual finding that binds us, the Tribunal found (at para. 39) that the "“padded evidentiary record”" was "“of the same nature” "and only "“slightly different”" from Danby. In its view, the evidence did not "“fundamentally [shift] the parameters of the debate”" (at para. 38). Miller does not allow us to depart from an earlier authority just because it was not prosecuted or decided as well as it might have been: see, e.g., David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 255 D.L.R. (4th) 633 (Ont. C.A.) at para. 113, citing R. v. Bell (1977), 1977 CanLII 42 (ON CA), 75 D.L.R. (3d) 755 (Ont. C.A.) at 761.
[7] The Tribunal, bound by Danby, applied it without legal error. We are not persuaded that the Tribunal committed legal error in any other way. Thus, we will dismiss the statutory appeal with costs. . Dufault v. Ignace (Township)
In Dufault v. Ignace (Township) (Ont CA, 2024) the Ontario Court of Appeal dismissed a municipality's wrongful dismissal appeal, here where the appellant sought a five-judge panel to avoid horizontal stare decisis:[8] Pursuant to the court’s Practice Direction Concerning Civil Appeals, the appellant requested that the court convene a five-judge panel to reconsider Waksdale. The Associate Chief Justice denied the request to convene a five-judge panel.
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[24] As a three-judge panel, we are precluded from reconsidering the holding in Waksdale. Following the holding in Waksdale, because the “for cause” termination clause in the employment contract is void as contrary to the ESA minimum standards, all termination provisions in the contract are invalid: Waksdale, at paras. 9-14; Rahman, at para. 30. Although the termination of the respondent was without cause, whether or not the “without cause” termination provision is itself contrary to the ESA minimum standards is irrelevant. Both termination clauses are invalid and unenforceable. . Brink v. Canada
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal from a denial of a Charter s.15 ['discrimination'] class action certification motion, here where the motion judge struck the claim (without leave to amend) on the basis that no Charter claim was made out on the pleadings. The claim was with respect to immigration process fees charged by the government to "non-Canadian born" individuals.
Here the court characterizes 'horizontal stare decisis':[95] A differently constituted panel of this Court subsequently came to the same conclusion as the Court did in Pawar: Shergill v. Canada, 2003 FCA 468, leave to appeal to SCC refused, 30177 (13 May 2004).
[96] In accordance with doctrine of vertical stare decisis, this Court’s decision in Pawar was binding on the Federal Court. Even though the Federal Court did not mention Pawar in its analysis, the Court was nevertheless bound to find that that "“being born abroad”" was not an analogous ground for the purpose of section 15 of the Charter, nor was it subsumed within the enumerated grounds of national or ethnic origin. As a result, it was plain and obvious that the appellants’ claim could not succeed.
[97] Stare decisis also has a horizontal aspect, which provides that decisions from the same court should be followed unless there is a compelling reason not to do so: R. v. Sullivan, 2022 SCC 19 at paras. 74-79; Janssen Inc. v. Canada (Minister of Health), 2021 FCA 137 at para. 72.
[98] Indeed, as this Court observed in Miller v. Canada (Attorney General), 2002 FCA 370, 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, even if it were the view that the first decision was wrongly decided: Miller, above at para. 8.
[99] The appellants have not provided a compelling reason that would justify departing from this Court’s decision in Pawar. This Court is thus required to conclude that individuals’ place of birth outside of Canada is not embraced by the concept of "“national and ethnic origin”", and that "“being born abroad”" is not an analogous ground under section 15 of the Charter. . 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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