Roundtable on Stare Decisis: Moncton, NB, Friday May 22

I will be speaking next Friday at the 2015 National Roundtable on Administrative Law organized by the Canadian Institute for the Administration of Justice. This year’s topic is Consistency in Tribunal Decision-Making and I will be kicking the day off with some thoughts on stare decisis. Here are Sections I and II of my draft paper: Sections III, IV and V will follow in future posts.


“When the facts change, I change my opinion,” John Maynard Keynes once tartly replied to a questioner concerned that the economist had altered his position on a matter of public importance, before adding, witheringly: “What do you do, sir?”

How to deal with changed circumstances is the central topic of this roundtable. When the facts change, should decision-makers change with them? To which one should add, mindful of judicial review’s perennial presence in Canada, should decision-makers be allowed to change with them?

In section I, I briefly review the development of stare decisis in the common law, before turning in section II to outline the Canadian approach to stare decisis in the administrative context. From there I assess three points at which the status quo comes under pressure, what I call the problems of clarity (section III), consistency (section IV) and coherence (section V).

By way of brief summary: stare decisis is not at all the judicial straitjacket it is sometimes imagined to be and so the very flexible approach to precedent taken by administrative decision-makers is not only defensible but laudable. Mischief results when judges declare statutory provisions to be ‘clear’, insist on consistency, or orchestrate coherence from on high.

I add an important caveat. Empirical evidence about the functioning of administrative decision-makers is sorely lacking.[1] Most of my analysis is theoretical, conducted at one remove from the administrative fray. Ultimately, we have little concrete information about the topics I will discuss: whether heavy-handed judicial intervention induces regulatory stasis, whether administrative decision-makers genuinely try to promote consistent decision-making and whether they have the ability to achieve coherent decision-making over time.

My prescriptions are grounded in theory and common sense rather than in facts. But I am not dogmatic. Like Keynes I am open to changing my mind if the facts do not fit my preferred theory. As Justice Jackson quite rightly put it, “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday”.[2] Until such time as I am proved wrong, however, my preference is for a deferential approach to judicial review of administrative action.

Stare Decisis in the Common Law

Lawyers schooled in the principle of stare decisis and thus alert to the need to ‘stand by what was decided’ are perhaps less likely to resort to the famous Keynesian retort. I doubt, however, that sophisticated lawyers truly believe in stringent and strident adherence to past decisions.

By the standards of the common law, the doctrine of stare decisis is a recent invention and though it may well be an “indispensable foundation” that “provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules”,[4] it does not exist in anything like the rigid form it is sometimes imagined to take: “Of course, the doctrine of stare decisis is no longer completely inflexible”.[5]

For instance, Mirehouse v. Rennell[6] is sometimes identified as the locus classicus of the principle. It is true that Baron Parke there said that courts should follow previous decisions even if these were not “as convenient and reasonable as we ourselves could have devised”, but he also noted that courts are not bound to follow decisions that are “plainly unreasonable and inconvenient”.[7] As a leading English legal historian put it, “The duty of repeating errors is a modern innovation”, one which most likely resulted from the introduction of a “hierarchical system of appellate courts” by the Judicature Acts.[8]

That is not to say that precedents were ignored or casually tossed aside in earlier times. Consistent decision-making exercised the minds of judges long before the development of the modern rule of stare decisis. As Lord Mansfield observed in the eighteenth century, “if an erroneous or hasty determination has got into practice, there is more benefit derived from adhering to it, than if it were to be overturned”.[9] In earlier eras of the common law, “[a] single case was not a binding authority, but a well-established custom (proved by a more or less casual citing of cases) was undoubtedly regarded as strongly persuasive”.[10] For centuries, common law courts adhered to a practice of stare decisis that acknowledged the wisdom of consistent decision-making without turning it into a rigid rule of law.

Even today, stare decisis is not a judicial straitjacket. Their own previous decisions are not absolutely binding on lower courts and may be discarded if “there is some indication that [the] decisions were given without consideration of the appropriate statute or that they failed to consider some relevant case law”.[11] Intermediate appellate courts are not bound to follow previous decisions that are no longer consistent with edicts delivered from the high court.[12] And, of course, high courts can depart from their previous decisions “when it appears right to do so”,[13] though only “after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances”[14] – whatever this means.

Moreover, in the area of the Charter of Rights and Freedoms, lower courts have significant latitude to revisit settled law, “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate”[15] – again, whatever this means.

It is true that in all other areas a lower court may not overrule a binding precedent but must instead wait for a higher court to wield the axe.[16] Nonetheless, lower courts have a margin of appreciation in determining the scope of the utterances of their superiors. A precedent is binding only if it “concerns the entire dispute that [the court] should normally resolve, and that it provides a complete, certain and final solution to the dispute”.[17] Indeed, only the ratio decidendi has the force of law, not those statements characterized as obiter dicta.[18] Judges can exploit this malleable distinction: “The rule is quite simple: If you agree with the other bloke you say it is part of the ratio; if you don’t you say it is obiter dictum, with the implication that he is a congenial idiot”.[19] Lower courts required to interpret judicial decisions have an “indispensable element of choice”:[20]

[W]e all know that no two legal treatises state the law in the same terms, there being a law of torts according to Street, and Heuston, and Jolowich and James and the contributors to Clerk and Lindsell, and we buy them all because they are all different. And what is true of the academics is true perhaps even more dramatically of the judges, who are forever disagreeing, often at inordinate length. When, after long and expensive argument the Law Lords deliver themselves ex cathedra of their opinions – and this is the best we can do – they either confine themselves to laconic agreement or all say different things, and this even when they claim to be in complete agreement.[21]

In summary, even common law courts are not subject to a rigid doctrine of stare decisis. Standing by what has already been decided is always desirable and sometimes mandatory but is not a complete fetter on judicial discretion.

Stare Decisis in Canadian Administrative Law

Canadian administrative law is organized around two core principles: democracy and the rule of law. In Dunsmuir v. New Brunswick, LeBel and Bastarache JJ. explained how these interrelate:

Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.[22]

Legislative choice to vest decisional authority in administrative bodies ought to be respected, but the limits of that authority are to be policed by the courts. Canadian courts have long adopted a legal pluralistic view of the administrative process,[23] allowing decision-makers to tailor their procedures to better meet their statutory objectives in regulatory environments that often change rapidly. Administrative decision-makers are, in short, “masters in their own house”.[24]

Accordingly, administrative decision-makers are permitted to take rules from the general law and modify them to the needs of a particular regulatory setting. As Fish J. explained in a case involving labour relations, arbitrators “may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized”.[25]

So it is with stare decisis: “Courts must decide cases according to the law and are bound by stare decisis.  By contrast, tribunals are not so constrained.  When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate”.[26] Simply put – and putting aside the misleading idea that stare decisis is a straitjacket worn beneath judicial robes – “an administrative tribunal is not bound by its previous decisions or the decisions of its predecessor”.[27] As a result, administrative decision-makers have significant flexibility in responding to changes in regulatory context and may change policies to better suit changed circumstances.[28] Previous decisions – especially a consistent line of previous decisions – “reveal[] where the law has been and where it may be headed”[29] and may accordingly provide “a valuable benchmark” against which to assess the reasonableness of a decision.[30] Stare decisis in the administrative realm bears strong similarities with the judicial approach to previous cases before the emergence of a hierarchy of courts in the late nineteenth century.

A subtle approach to stare decisis has the additional benefit of facilitating access to administrative justice, for if an administrative decision-maker “is to be constrained by technical legal rules and a growing mass of binding precedents, its ability to serve will be jeopardized and its purpose…will be compromised”.[31] If detailed arguments must be made about how to read relevant precedents, individuals may need to call on the services of lawyers and the administrative decision-maker itself will need to spend more time in deliberations – thereby compromising cost-effective access to swift decisions. Focusing on the facts at hand rather than on synthesizing a case with previous decisions may make it easier for individuals to interact with administrative decision-makers.

Consistency is doubtless a good thing in administrative decision-making: “If the facts as found are not to be distinguished in some material aspect from those in an earlier case, the result should be the same”.[32] There is a “strong case for branding as reviewable those cases where statutory authorities inexplicably fail to act consistently”.[33] It follows that where a decision-maker departs from a previous decision, the departure must generally be accompanied by an explanation justifying the departure; the previous decision provides a “direct contextual comparison” against which the reasonableness of the new decision can be assessed.[34] Once this criterion is met, however, the departure will be upheld as a reasonable decision.[35]

This subtle approach recalls Emerson’s advice – “A foolish consistency is the hobgoblin of the mediocre mind” – strikes a balance between the competing demands of the rule of law and the democratic imperative outlined in Dunsmuir and has respectable historical pedigree. It is, to my eye, motherhood and apple pie. There are, however, several points at which this position comes under threat.

[1] See e.g. Peter A. Gall, “Problems with a Faith-Based Approach to Judicial Review” (2014), 69 S.C.L.R. (2d) 183.

[2] Massachusetts v. United States, 333 U. S. 611, at pp. 639–640 (1948).

[3] See generally Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012).

[4] Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234.

[5] (Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49, at para. 24).

[6] (1833) 1 Cl & Fin 527.

[7] Ibid, at p. 546.

[8] John Hamilton Baker, An Introduction to English Legal History, 3rd ed. (Butterworths, London, 1990), at p. 229.

[9] Hodgson v. Ambrose (1780) 1 Doug 371, at p. 373.

[10] Theodore Plucknett, A Concise History of the Common Law, 5th ed. (Butterworths, London, 1956), at p. 347.

[11] Holmes v. Jarrett (1993), 68 O.R. (3d) 667, at pp. 676-677 (S.Ct.).

[12] Young v. Bristol Aeroplane Co. Ltd., [1944] K.B. 718, at pp. 729-730.

[13] Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234.

[14] Queensland v. Commonwealth (1977), 139 C.L.R. 585, at p. 599 (H.C.A.), per Gibbs J.

[15] Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 42.

[16] Canada v. Craig, [2012] 2 S.C.R. 489.

[17] Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49, at para. 27. Emphasis original.

[18] Harrison v. Carswell, [1976] 2 S.C.R. 200, at p. 206, per Laskin C.J., dissenting:

What is important, however, is not whether we have a previous decision involving a “brown horse” by which to judge a pending appeal involving a “brown horse”, but rather what were the principles and, indeed the facts, upon which the previous case, now urged as conclusive, was decided.

[19] Lord Asquith, “Some Aspects of the Work of the Court of Appeal”, (1950), 1 Journal of the Society of Public Teachers of Law 350, at p. 359.

[20] H. Wade McLauchlan, “Some Problems with Judicial Review of Administrative Inconsistency” (1984), 8 Dalhousie L.J. 435, at p. 440.

[21] A.W.B. Simpson, “The Common Law and Legal Theory” in A.W.B. Simpson ed., Oxford Essays in Jurisprudence (Second Series) (Clarendon Press, Oxford, 1973), p. 77, at pp. 89-90, emphasis original.

[22] [2008] 1 S.C.R. 190, at para. 27. I would add that Dunsmuir recognizes a concern for good administration – that specialized decision-makers should generally be allowed significant regulatory autonomy the better to achieve statutory objectives – and for the separation of powers, in its assignment of distinct roles to the judicial and executive branches.

[23] See generally Harry Arthurs, Without the Law: Administrative Justice and Administrative Pluralism in Nineteenth Century England (University of Toronto Press, Toronto, 1985).

[24] Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at pp. 568-569.

[25] Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616, at para. 45. It bears mentioning, however, that the application of legal concepts by administrative decision-makers is often reviewed quite strictly, on the basis that the range of possible, acceptable outcomes is relatively restrained in such contexts. See generally Canada (Minister of Transport, Infrastructure and Communities) v. Jagjit Singh Farwaha, 2014 FCA 56.

[26] Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 per Iacobucci, J. dissenting, at para. 14. See also IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.

[27] Altus Group Limited v Calgary (City), 2015 ABCA 86, at para. 20.

[28] Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 78, at para 39.

[29] Joey’s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission) (2001), 201 D.L.R. (4th) 450, at para. 39.

[30] Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, at para. 6.

[31] Medicine Hat College v. Alberta (Public Service Employee Service Relations Board) (1987), 80 A.R. 358, at para. 30.

[32] Danakas v. Canada (War Veterans’ Board) (1985), 10 Admin. L.R. 110, at p. 114.

[33] David J. Mullan, “Natural Justice and Fairness – Substantive as well as Procedural Standards for the Review of Administrative Decision-Making?” (1982), 27 McGill L.J. 250, at p. 286.

[34] Altus Group Limited v Calgary (City), 2015 ABCA 86, at para. 32.

[35] Syndicat de l’enseignement de la région de Laval c. Commission scolaire de Laval, 2012 QCCA 827.

This content has been updated on May 11, 2015 at 12:36.