The per incuriam exception to stare decisis

Royal Bank of Canada v. Trang, 2014 ONCA 883

[38]       Strictly applied, the principle of stare decisis – “stand by things decided” – means we ought to follow Citi Cards even if we disagree with it. Per incuriam is a well-recognized exception to stare decisis. Literally, per incuriam means “through lack of care”; in law, it means a decision made without regard to a statutory provision or earlier binding authority.

[39]       Under the per incuriam exception, the court may depart from one of its previous decisions if two conditions are met:

·                    The panel deciding the earlier case did not advert to judicial or statutory authority binding on it; and

·                    If the panel had considered this authority, it would have decided the case differently.

See David Polowin Real Estate Ltd v. Dominion of Canada General Insurance Co., (2005), 76 O.R. (3d) 161 (C.A.), at paras. 107-11, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 390.