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Stare Decisis - Obiter Dicta

. 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).


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Last modified: 10-04-24
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