Simon's Megalomaniacal Legal Resources

Stare Decisis - Obiter Dicta

. Canada (Attorney General) v. Public Service Alliance of Canada

In Canada (Attorney General) v. Public Service Alliance of Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a labour JR, here brought against "a decision of the Federal Public Sector Labour Relations and Employment Board allowing the respondent’s policy grievance ..." here ordering "retroactive payment of the allowance to individual fishery officers".

The court considers the role of 'obiter' (non-binding judicial comments in a decision), here in an FPSLRED JR regarding retroactive remedies:

[2] The applicant does not dispute the Board’s conclusion on the entitlement to a transfer at sea allowance. The sole issue raised by the applicant relates to the Board’s authority to order individual retroactive compensation under paragraph 232(c) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the FPSLRA).

[3] Section 232 of the FPSLRA provides:

"Decision in respect of certain policy grievances"

"Portée de la décision sur certains griefs de principe"

"232 If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator’s or the Board’s decision in respect of the policy grievance is limited to one or more of the following:"

"232"" Dans sa décision sur un grief de principe qui porte sur une question qui a fait ou aurait pu faire l’objet d’un grief individuel ou d’un grief collectif, l’arbitre de grief ou la Commission ne peut prendre que les mesures suivantes:"

"(a) declaring the correct interpretation, application or administration of a collective agreement or an arbitral award;"

"a)"" donner l’interprétation ou l’application exacte de la convention collective ou de la décision arbitrale;"

"(b) declaring that the collective agreement or arbitral award has been contravened; and"

"b)"" conclure qu’il a été contrevenu à la convention collective ou à la décision arbitrale;"

"(c) requiring the employer or bargaining agent, as the case may be, to interpret, apply or administer the collective agreement or arbitral award in a specified manner."

"c)"" enjoindre à l’employeur ou à l’agent négociateur, selon le cas, d’interpréter ou d’appliquer la convention collective ou la décision arbitrale selon les modalités qu’il fixe."

[4] The applicant submits that section 232 limits the available remedies for a policy grievance to declaratory or prospective relief where the matter raised was, or could have been, the subject of an individual or group grievance. Since fishery officers had filed individual grievances, the applicant says that the Board’s order for retroactive compensation was contrary to section 232.

[5] The Board, citing Canada (Attorney General) v. Canadian Merchant Service Guild, 2009 FC 344 [Canadian Merchant Service Guild], concluded that it had jurisdiction to order retroactive compensation.

[6] In Canadian Merchant Service Guild, the Federal Court (per Hughes J.) in obiter held that paragraph 232(c), which empowers the Board to require an employer or bargaining agent to "“interpret, apply or administer”" a collective agreement in "“a specified manner”", includes the ability to award retroactive compensation. The Federal Court observed that limiting the Board to awarding declaratory relief under paragraph 232(c) would be absurd as it would necessitate a subsequent individual or group grievance to obtain retroactive payments: Canadian Merchant Service Guild at paras. 19-23.

[7] The applicant submits that the Board erred by interpreting section 232 in a manner inconsistent with the provision’s text, context and purpose, by inappropriately relying on obiter in Canadian Merchant Service Guild and by diverging from the Board’s prior decisions. We disagree.

....

[9] Although the Board was not bound to follow the Federal Court’s obiter in Canadian Merchant Service Guild, it was entitled to rely on it. The Supreme Court of Canada has explained that a range of weight can attach to obiter depending on the context in which it is written. "“The weight decreases as one moves from the dispositive ""ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not ‘binding’”": R. v. Henry, 2005 SCC 76 at para. 57; see also Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163 at paras. 59-60. The obiter analysis in Canadian Merchant Service Guild had persuasive value and it was open to the Board to adopt it.

[10] Contrary to the applicant’s submission, the Board’s conclusion was consistent with some of the Board’s orders of retroactive relief in previous policy grievance cases: see e.g. Union of Canadian Correctional Officers v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 118 at para. 54; Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2016 PSLREB 77 [PIPSC 2016] at paras. 120-21; Professional Institute of the Public Service of Canada v. Canada Revenue Agency, 2015 PSLREB 65 at para. 78, aff’d 2016 FCA 104 (without comment on this point). Indeed, in PIPSC 2016 at paras. 120-21, the Board explicitly adopted the reasoning of the Federal Court in Canadian Merchant Service Guild.

[11] While the Board’s reasons on its power to award retroactive compensation are brief, when considered with the Federal Court’s reasons on the interpretation of paragraph 232(c) in Canadian Merchant Service Guild, the Board’s decision is transparent, intelligible and justified. There is no basis for this Court to intervene.

[12] If Parliament intended that paragraph 232(c) apply only prospectively, it can amend the provision.

. Keulen v. Allstate Insurance Co.

In Keulen v. Allstate Insurance Co. (Div Court, 2024) the Divisional Court usefully considered the doctrine of obiter dicta:

[17] The Appellant also argues that the Court of Appeal’s dicta, quoted above, is obiter dicta and was made per incuriam (Factum, paras. 38-41). I do not agree that the passage is obiter dicta – it is an aspect of the court’s reasoning to its conclusion. But even if it was obiter dicta, it is considered language, stating a clear principle, and under the principle in Sellars v. The Queen, 1980 CanLII 166 (SCC), [1980] 1 SCR 527, I would consider this court bound by it.

. Dinan v. Canada (Transport)

In Dinan v. Canada (Transport) (Fed CA, 2023) the Federal Court of Appeal noted that statements made by the court which were not necessary to it's ruling were obiter dicta - and thus had no stare decisis value:

[5] One of the sources of Captain Dinan’s preoccupations is the statement at paragraph 4 of the Federal Court’s reasons which we reproduce for the sake of convenience:

Importantly, the Minister’s March 16, 2021 reconsideration decision could have been the subject of a further request for review to the TATC. As a general rule, this Court will decline to review decisions for which a statutory administrative review or appeal is available. The Court should respect Parliament’s intention that such issues be decided by the TATC before being considered by the Federal Court.

[6] These comments give rise to Captain Dinan’s concerns about an endless loop of reviews and reconsiderations.

[7] Since the Federal Court decided the application for judicial review on the basis that it was moot, the question of the appropriate recourse from a decision of the Minister was not necessary to its decision. These comments quoted above are therefore obiter dicta which have no precedential value. The question of the proper recourse from a Ministerial decision remains to be decided in a case whose facts raise it.

. Canada (Public Safety and Emergency Preparedness) v. Gaytan

In Canada (Public Safety and Emergency Preparedness) v. Gaytan (Fed CA, 2021) the Federal Court of Appeal comments on obiter dicta:

[60] In an oft-quoted passage from R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry), the Supreme Court of Canada stated that the weight of obiter "“decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative”" and that beyond the wider circle of analysis there will be non-binding "“commentary, examples or exposition that are intended to be helpful and may be found to be persuasive”" (Henry at para. 57). In other words, obiter dicta move along a continuum (R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401 at para. 20, aff’d without reference to this point, 2012 SCC 49, [2012] 2 S.C.R. 639).