What Is the Legal Term For the Rule That a Court Must Follow Similar Prior Court Decisions?

The Common Law Principle That Requires a Judge to Make a Decision Using Similar Reasoning As Was Used Within Similar Past Cases Involving Similar Issues Is Known As Stare Decisis.


Understanding the Precedent Principle Known As Stare Decisis and Requirement For Courts to Follow Prior Decisions

In Latin, stare decisis means "To stand by that which is decided". In legal principles, albeit an inaccurate translation, the principle of stare decisis might be most easily understood if thought of as a starring decision that is used when a judge within a current legal case is reviewing a set of facts and issues in comparison to similar past cases for the purpose of receiving guidance and direction while making a ruling for the current legal case.  The principle of stare decisis is to provide parties within legal proceedings as well as the advocates and the judges and adjudicators with an opportunity to rely upon guiding precedent.  Guiding precedent establishes a baseline understanding of what should be anticipated and thereby provides some assurance of predictability and consistency with the law and what should be expected as justice. The principle of stare decisis and reasoning behind the principle was well explained in the case of R. v. Burns, 2024 ONCJ 91, where it was said:


[49]  The doctrine of stare decisis requires that, in matters of law, courts of inferior jurisdiction are bound to follow precedents set by courts of superior jurisdiction. The purpose of stare decisis is to promote certainty in the law.

[50]  The following description of the meaning and purpose of stare decisis was set out in R. v. Koziolek, [1999] O.J. No. 657 (Ont.Gen.Div.) at page 12:

The phrase stare decisis is an abbreviation from the Latin phrase stare decisis et non quieta movere which may be translated as "to stand by decisions and not to disturb settled matters". The "rule" as it is often described, has been commonly understood in modern terms to mean that every court is bound to follow any case decided by a court above it in the hierarchy. However, as the entire phrase itself suggests, the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same": see Glanville Williams, Learning the Law (9th ed.), 1973. [emphasis added]

[51]  Judicial comity refers to situations where courts recognize and enforce each other’s legal decisions as a matter of courtesy, or based on the need for reciprocity, but not necessarily as a matter of law. Courts observing comity usually defer considering a case if the same issues are being considered in a court in another jurisdiction or a court of competent jurisdiction.

[52]  There are sound reasons for both the application of stare decisis as well as judicial comity, as it is vital that as much certainty as possible be brought to the law. However, the application of either principle:

…should advance the interests of justice, not undermine them. It is for this reason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should not begin and end with a rote application of Re Hansard Spruce Mills; instead, that determination should also be informed by all relevant factors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so.[emphasis added]

R. v. Sipes 2009 BCSC 285, at paragraph 11.

Does Stare Decisis Require Judges to Only Follow Cases From Higher Courts?

Generally, lower courts are required to follow judicial decisions from higher courts which, being the very basic stare decisis principle as is taught within introductory law classes; however, it can be confusing, even amongst legal professionals and judges, to appreciate whether case decisions should follow reasoning of decisions from courts at the same level.  Per Whitford v. Backman, 2016 CanLII 1308 it appears that a Judge within a lower court should, for consistency and predictability, follow previous decisions even if such is from a past case heard within a court at the same level.  In Whitford it was said:


Given this analysis by a court of co-ordinate jurisdiction, the issue before me is whether the doctrine of stare decisis applies.  Some courts have held that there can be no stare decisis between judges of the same court only a question of collegiality. However, there is ample authority that stare decisis is a doctrine to be considered by courts of co-ordinate jurisdiction.  The obvious rationale for respecting decisions of courts of co-ordinate jurisdiction is that “[i]t is undesirable that a judge sit on appeal from a decision of a judge of co-ordinate authority.  To permit such a practice would foster inconsistency and uncertainty respecting decisions made by the same court.”  In Wolverine v. R., Wimmer J.  stated:

It is true that the doctrine of stare decisis does not absolutely bind a judge of first instance to follow a prior decision of another judge of the same court, but a failure to do so is a disservice to litigants, lawyers and inferior courts who are entitled to see the law as reasonably settled and certain.  It is for courts of appeal, not individual judges of equal jurisdiction, to correct judicial errors.

There are only very limited circumstances where stare decisis would not be binding on a court of co-ordinate jurisdiction.  In Burroughsford v. Lynch, Goodfellow J.  set out the exceptional circumstances.  Goodfellow J.  stated:

Generally one is bound by the decision of another Justice of the Court when the subject-matter is substantially indistinguishable.  I am not bound by any statute or provision in the Judicature Act, R.S.N.S. 1989, c.  240; however, in the interests of predictability and certainty, one should usually follow the decision of another Justice unless one is convinced that the judgment is wrong or there exists strong reason to the contrary.  Strong reason to the contrary might be something that indicates the prior decision was given without consideration of a statute or some authority that ought to have been followed, and not simply a strongly held contrary view by the second Justice.  One obvious consideration for not being bound by a fellow Justice’s decision is subsequent direction, comment or overruling of that decision by appellate courts.

Goodfellow J.  was affirmed by a unanimous Nova Scotia Court of Appeal both as to “the result reached and, in general, for the reasons he gave.” Similar wording for the test of “strong reason to the contrary” is stated in R.  v. Northern Electric Co., a decision favoured by the courts, but not referred to in Burroughsford.  McRuer C.J.H.C.  stated:

I think that “strong reason to the contrary” does not mean a strong argumentative reason appealing to the particular judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed.  I do not think “strong reason to the contrary” is to be construed according to the flexibility of the mind of the particular judge.

The test of “strong reason to the contrary” is similar to the per incuriam exception to stare decisis.  The phrase “per incuriam” literally means “through lack of care.” It refers to a judgment of a court decided without reference to an earlier judgment which is relevant or to a statutory authority which is binding.  The court’s attention must be drawn to the relevant authorities.  A decision made per incuriam is not binding on courts of co-ordinate jurisdiction.  A leading decision is David Polowin Real Estate Ltd.  v. The Dominion of Canada General Insurance Co. Laskin J.A., for the court, a five-member panel, stated:

[111] The insurers rely on the per incuriam exception to stare decisis.  This well-recognized exception permits a court to overrule 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 had the panel considered this authority, it would have decided the case differently: see Al’s Steak House and Tavern Inc.  v. Deloitte & Touche, (1997), 1997 CanLII 2339 (ON CA), 13 C.P.C.  (4th) 90 (C.A.); Metro.  Toronto v. L.J.  McGuinness & Co.  Ltd., 1960 CanLII 165 (ON CA), [1960] O.R.  267 (C.A.); Morelle Ltd.  v. Wakeling, [1955] 1 All E.R.  708, at p.  718.

Accordingly, it appears that the principle of stare decisis should be applied even with cases involving courts of co-ordinate jurisdiction.  The exception of course would be where a case is available from a higher court or where the prior case from co-ordinate jurisdiction contains reasoning with a "strong reason to the contrary" and should be ignored.

Evolution

As provided above, judges within the courts are to apply the same reasoning as was used to decide within cases as by doing so the law is predictable and fair; and yet, the law also evolves to meet the needs of an evolving society; and accordingly, the law is constant as well as changing.

“A court ought not be affected by the weather of the day, but will be by the climate of the era.”
~  Paul Freund
Professor of Law, Harvard University

Conclusion

The stare decisis principle should be applied within judicial decisions even when the prior decision is from a court of co-ordinate jurisdiction, meaning a court at the same level, unless there is an over-ruling higher court decision or the decision from the co-ordinate level is obviously flawed and contains good reason to vary from the prior reasoning.

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