Most people likely know that higher courts such as appeal courts bind the decisions of lower courts through precedents. The legal term is stare decisis (to adhere to precedents), and the legal rationale is that like decisions should be decided alike so as to give more certainty to the outcome of the case, based on established legal principles.
The decision of Black v Owen 2017 ONCA 397 of the Ontario Court of Appeal discusses this hallmark of our common law legal system:
42 As the Supreme Court emphasized in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 38: “Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.” Failure to adhere to this core principle is inconsistent with the principle of stare decisis, the need for certainty and stability in the administration of justice, and the orderly development of the law.
43 Consistent with this principle, the Supreme Court has held that a trial judge’s authority to depart from binding precedent is limited. Bedford instructs, at para. 42:
[A] trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited 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.
See also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44. Further, the Supreme Court has rejected the notion of the anticipatory overruling by a lower court of a binding authority by a higher court: Canada v. Craig, 2012 SCC 43, [2012] S.C.R. 489.
44 In this case, the respondents do not contend that either of the Bedford conditions, set out above, were satisfied so as to justify departure from the majority opinion in Amberwood.
45 The Bedford conditions are not met here. First, unlike Bedford and Carter, this is not a case involving s. 7 of the Charter of Rights and Freedoms. Second, no new legal issue concerning the positive covenants rule or the possible exceptions to that rule, that were not addressed in Amberwood, was raised in this case. Third, no significant post-Amberwood developments in the law of Ontario had occurred. I note, in particular, that the extent to which the decision of the English Court of Appeal in Wilkinson warrants importation of the benefit and burden exception into Ontario law, if at all, was a matter for determination by this court. Neither Wilkinson in England nor Wentworth Condominium Corporation in Ontario permits a lower court judge to prefer the minority, over the majority, opinion of this court in Amberwood.
46 To summarize, in a case like this one, a judge of a lower court may not decline to follow a binding precedent of a higher court on the ground that he or she disagrees with it or because, in his or her view, it appears to have been overtaken by subsequent decisions of a lower court in the same jurisdiction, or by jurisprudential developments in another jurisdiction. In this case, what the Appeal Judge should have done was follow and apply the majority decision in Amberwood and provide reasons why she viewed it as problematic, rather than decline to follow it: see, for example, in the constitutional context, Craig, at para. 21.
