Tuesday, November 5, 2013

Seeking to Overturn Earlier Court of Appeal Decisions - Procedural Requirements

Cumming v. Peterborough Police Association, 2013 ONCA 670 is useful for the procedure to be followed when seeking to overturn an earlier decision of the Court of Appeal.  

Generally the best approach is to argue the earlier decision does not bind the Court because there are distinguishing factors between the precedent and the instant case.  

However, on occasion, there is no way to make such distinctions and the argument that the earlier decision is bad law must be faced squarely.  

In order so to do the party must apply to the Chief Justice and convince the Chief that a doubt exists and a panel of five must be convened.  If that is not done the regular panel cannot consider the older decision's continued validity:

[3]          On appeal, the appellant argues in effect that we should overturn Renaud. As we indicated to counsel, this court is bound by Renaud. In order to reconsider it, the appellant needs to request that the Chief Justice strike a five-judge panel to consider whether Renaud remains good law. That was not done. As found by the motion judge, Renaud stands for the proposition that an alleged breach of a police association's duty of fair representation falls within the exclusive jurisdiction of an arbitrator appointed pursuant to ss. 123 and 124 of the Police Services Act, R.S.O. 1990, c. P.15. Renaud, therefore, is a complete answer to the appellant's appeal.

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