Brian Madigan LL.B., Broker
BRMadigan@iSourceRealEstate.com

RE/MAX West Realty Inc.,
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96 Rexdale Blvd. 
Toronto, Ontario 


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"Stare Decisis" (the Law's Binding System of Precedents)

August 24, 2016 - Updated: August 24, 2016

Meaning of “Stare Decisis” (Ontario Law)

 

The latin expression "stare decisis" is probably the most important latin legal term. It means "maintain what you have decided". It is the fundamental basis of the common law legal system of precedents.



Once a Court makes a decision, then that's the law. It doesn't change. Every similar case that comes forward will be treated in the same way. The law is consistent. It doesn't change depending upon who the parties may be. Justice is blind!



The legal system of binding judicial precedents is fundamental to the operation of the common law. So, what part of the decision is a binding precedent?



The essential part of the judgment is called the "ratio decidendi". Anything else, which is non-essential is part of the "obiter dicta" or "obiter" for short.



When analyzing a court decision, it is important to distinguish between:



1) ratio decidendi, the essential, and



2) obiter dicta, the non-essential.



It is only the ratio decidendi of the decision which is binding as a precedent in terms of other Courts in accordance with the legal principle of "stare decisis".
 


The next question is "who is it binding upon"? The answer here, is inferior courts in Canada. In some common law jurisdictions, the decision is also binding upon that same court, or collateral courts.



However, in Canada, the doctrine of stare decsis has been modified so as to apply only to inferior courts. From a technical perspective, a court with equal authority (same level) could overrule the previous decision.



The difficulty with that, is uncertainty. Generally, when utilizing the concept of stare decisis as part of the legal system, the jurisdiction will make the moral choice that consistency of the law is a more important principle than the law being right, correct or accurate. Once everyone knows the rules, then they can play the game appropriately and govern their conduct accordingly. A change in the rules is left to a superior court or the legislature.



In Canada, there are several levels of Courts. If we consider the provincial civil law system in Ontario there are really three levels:



1) Small Claims Courts, having jurisdiction over claims up to $25,000,



2) Superior Courts having jurisdiction over claims in excess of $25,000, and



3) The Supreme Court of Canada.



Just to make matters somewhat more complicated, the Superior Court of Justice itself has 3 levels:



1) Trial Division,



2) Divisional Court, for procedural appeals, and



3) Court of Appeal, for substantive appeals.



That was an over-simplification, since there are several other specific purpose Courts. However, my point here is just to draw to your attention that there are at least 6 levels of Courts in the provincial civil system. The highest Court is the Supreme Court of Canada. Its decisions are binding upon every other court. It has the authority to overrule previous decisions of the Supreme Court and change the law.



The highest court in Ontario is the Ontario Court of Appeal. Every court in Ontario must follow its decisions except, of course, the Ontario Court of Appeal which could change, alter or modify one of its previous decisions. In order to maintain consistency of the law, it will usually follow its prior decisions, even if the Court concludes that it could come up with a better decision. In order to overrule a previous decision, there must be a very compelling reason. Otherwise, the principle of stare decisis applies.



And, by the way, the expression "justice is blind", means that the law will be applied equally to all parties whomever they may be. It does not mean that justice is foolhardy, unintelligent or capricious.



Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


Tagged with: stare decisis court system binding precedents rule of law justice is blind ontario law
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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

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