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Stare Decisis - International Cases and Authorities

. Thales DIS Canada Inc. v. Ontario (Transportation)

In Thales DIS Canada Inc. v. Ontario (Transportation) (Ont CA, 2023) the Court of Appeal considered the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), here in the course of a successful Crown appeal of a JR finding that the bidding requirements were in violation of CETA.

In this quote the court noted the absence of a 'precedent' (stare decisis) doctrine in World Trade Organization (WTO) law:
[115] The first point to make on this issue is that WTO decisions are not binding on either Canadian courts or subsequent WTO panels: Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH & Co. KG, 2006 FCA 398, at para. 74; US – Stainless Steel (Mexico) (2008), WTO Doc. WT/DS344/AB/R (Appellate Body), at para. 158. In this case, as discussed more fully below, the parties to the CETA agreed that each government, including sub-governments, could set up their own dispute resolution processes. Article 19.17 does not address what law or rules will govern the resolution of these disputes. From this perspective, it is unclear that the two-part material necessity test is a legal constraint on the decision. Rather, the obvious legal constraint is the wording of the relevant CETA provision: Article 19.4, which precludes discrimination, and Article 19.3, which allows for exceptions that are necessary for public safety reasons.
. Democracy Watch v. Canada (Prime Minister)

In Democracy Watch v. Canada (Prime Minister) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a denied judicial review challenging the date of the last federal election, advanced by a well-known public interest group.

In this quote, the court considers whether a UK case [R (Miller) v. The Prime Minister, [2019] UKSC 41] operated to create stare decisis in a Canadian court:
[35] On the other hand, what was binding on the Federal Court by the virtue of the stare decisis principle was this Court’s decision in Conacher [SS: (Fed CA, 2010)] since it is, as we have seen, directly on point (R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342 at para. 26). Even if Miller were persuasive, it would not be binding on a Canadian court (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32). [SS: I found paras 19-47 of the Quebec (AG) case most relevant]


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Last modified: 04-01-24
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