Monday, August 10, 2015

Court of Appeal may overrule itself albeit rarely

Fernandes v. Araujo, 2015 ONCA 571:

[45]       As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed by the Latin phrase stare decisis, we stand by things that have been decided. The rule of precedent provides certainly, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly.

[46]       However, as this court held in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161, at para. 127, it is permissible for this court to overrule one of its prior decisions if it is satisfied that the error should be corrected after considering "the advantages and disadvantages of correcting the error." In making this assessment, this court should focus on the nature of the error and "the effect and future impact of either correcting it or maintaining it," including  "the effect and impact on the parties and future litigants" and "on the integrity and administration of our justice system." 

[47]       The common law has long prided itself in its capacity to evolve and improve with the times. The rule of stare decisis is not absolute. There comes a point at which the values of certainty and predictability must yield to allow the law to purge itself of past errors or decisions that no longer serve the interests of justice. Moreover, decisions that rest on an unstable foundation tend to undermine the very values of certainty and predictability that stare decisis is meant to foster.

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