I left law school with a healthy respect for legal precedent and an underdeveloped ability to reason my way around adverse authority. When asked to make a legal argument in the face of unfavourable precedent, I always felt a bit paralyzed.
Many students and junior lawyers are in the same boat. It’s easy to get tripped up on a bad precedent. Lawyers are risk-averse. When faced with adverse authority, it’s natural to return a memo explaining that the argument is a loser. But often, the instructing lawyer wants more from you. They don’t just want a summary of the obstacles. They also want your analysis of possible routes around the obstacles.
And sometimes, even in the face of a line of unhelpful authorities, there is such a route. While our common law system is grounded in precedent — treating like cases alike — the law evolves, in part, from restricting, distinguishing, and sometimes even overruling those precedents.
An effective legal researcher seeks out the alternate route and offers creative solutions. Those creative ideas may never find their way into a factum, but at least you’ve given the instructing lawyer the option.
Of course, don’t ignore bad precedent. Instead, try to find your way around or over it, using one or more of these legal reasoning techniques.
1. First, check whether the unhelpful case is actually a precedent.
Is that unhelpful case really a precedent? Or merely a persuasive authority? In the latter case, you’ll have much more leeway in persuading the court to disregard it.
A very brief refresher on stare decisis:
“Vertical precedents” -- those from a higher court in the judicial hierarchy -- are strictly binding. That means:
All Canadian courts must follow a precedent of the Supreme Court of Canada (plus pre-1949 decisions of the Privy Council that the SCC has not overruled)
Provincial and territorial courts must follow decisions of their jurisdiction’s court of appeal.
The Federal Court and Tax Court of Canada must follow decisions of the Federal Court of Appeal.
“Horizontal precedents” – previous decisions of the same level of court – are not strictly binding. However, as the Supreme Court of Canada has recently confirmed, for reasons of judicial comity, a trial judge should follow the decision of a judge of the same court, except in one of the three narrow circumstances set out in Re Hansard Spruce Mills Ltd.:
Subsequent appellate decisions have undermined the rationale of the earlier decision;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered due to the exigencies of the court process. (Oral reasons given “in the hurly-burly of chambers” could fall within this category.)
If the case is neither a vertical nor a horizontal precedent – for example, it originates from a different province, the Federal Courts, or a lower court – it’s not binding, period. It may still be persuasive, but you’ve got a wide range of arguments for attacking its weight (the reasoning was flawed, the court failed to cite pertinent authorities, the issue was not fully considered, etc., etc.).
2. Try distinguishing the unhelpful case on the facts.
Everyone will be familiar with this technique of legal reasoning. Distinguishing cases on the facts is one of the major ways in which the law adapts and evolves.
Consider whether you can show that the facts make the ratio of the prior case inapplicable to the present one. In other words, identify the factual differences between the two cases and explain why they are legally significant so as to demand a different outcome. You’ll need to address why those facts were material or necessary to the earlier decision.
3. Restrict or “read down” the ratio of the unhelpful case.
This is another version of distinguishing, sometimes called “restrictive distinguishing”. It involves interpreting an earlier decision as narrowly as possible in order to cut down its scope.
For example, let’s say the reasoning of the unhelpful case was as follows: if A, B, and C conditions are present, then the result is X. This doesn’t help your client because A, B, and C are all present on the facts of your case and your client doesn’t want the result to be X.
But on a careful review of the earlier case, you identify a fourth condition, D, that was also present but perhaps not emphasized in the original decision. So now you argue that what the case really stood for was “if A, B, C, and D, then X.” Since condition D is not found in your case, you have effectively restricted the scope of the earlier decision.
Of course, not every bad precedent is susceptible to restrictive distinguishing. Don’t choose some random fact the earlier court mentioned but to which it afforded no weight. You’ll need to make a plausible argument that condition D was material to the earlier decision.
4. Argue that the unhelpful portion of the earlier case was stated in obiter.
Not every part of a judge’s reasons has equal weight. Generally speaking, the precedential effect of a decision is limited to the case’s ratio decidendi (reason for deciding). Obiter dicta (things said in passing) are not strictly binding.
The tricky part is distinguishing between ratio and obiter. It’s not always obvious. You must engage with the facts of the case and decide whether the statement was necessary for the court’s decision or merely something said in passing that was unnecessary to resolve the case.
Be aware, however: while obiter dicta are not binding, they may be highly persuasive. It depends on the level of court and the degree to which the court engaged with the legal topic. Briefly put:
Obiter of the Supreme Court of Canada will typically have great weight. SCC decisions tend to address the law in depth and often reflect a considered analysis of broader legal questions. As one article put it, “where the Supreme Court turns its full attention to an issue and deals with it definitively, the concepts of ratio and obiter tend to lose significance.”
Obiter of the Court of Appeal of your home province will usually be respected, particularly where the court has undertaken a considered survey of the law with the aim of clarifying it.
Obiter of a trial-level decision are less persuasive, but may have some weight if there is no other relevant law on the topic.
Of course, beware of situations where obiter statements have been applied in later cases and subsequently become the law.
5. Articulate the ratio of the unhelpful case differently.
Read the unhelpful case carefully. Different legal readers may come away from the same case with a different interpretation. Occasionally it may be possible to find an alternate way to express the ratio, even if it goes against the manner in which subsequent cases have interpreted the case. Academic articles, treatises, and textbooks can be helpful sources for finding alternate interpretations of cases.
6. Argue that the ratio of the unhelpful case has been called into question.
Particularly if the unhelpful case in question is an older one, you might argue that while the precedent case did at one point stand for the legal proposition for which it has been cited, the case has been effectively overruled by a decision of a higher court or the enactment of statute. This may occur after a significant decision of the Supreme Court of Canada has changed the law in a particular area.
Alternatively, if the ratio of the unhelpful case was based on public policy — and that policy has changed since the unhelpful case was decided — you could argue that the ratio of the unhelpful case has been called into question.
7. Show that the unhelpful case is irrelevant.
Think outside the box. Perhaps you can argue that the unfavourable decision doesn’t matter, because your client can win on another ground.
8. Argue that the unhelpful case should be overruled.
This one’s not for the faint of heart. Asking a court to overrule its own precedent is not easy, and should only be done when there are no other options. Harder still is asking a court to overrule a higher court’s precedent.
A brief overview:
a. Asking a trial court to disregard a decision of the same court
As alluded to above, this is not a matter of “overruling”, since horizontal precedents aren’t strictly binding the way vertical precedents are. Rather, you are asking the court to choose not to follow a decision of the court of coordinate jurisdiction, based on one of the three Hansard Spruce exceptions:
The rationale of the earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam; or
The earlier decision was not fully considered due to the exigencies of the court process.
Note: if you are working on a case that is sure to be appealed, it doesn’t much matter which exception you fit within (if any). The Court of Appeal will not be bound by that trial-level decision.
b. Asking an appellate court to disregard a decision of the same court
The situation is a bit different when you are asking an appellate court to depart from its own previous decisions.
Intermediate appellate courts (like the BC Court of Appeal) will not ordinarily depart from their own decisions. There are narrow exceptions, and different intermediate appellate courts approach it differently. For the BC Court of Appeal, the Chief Justice has discretion to convene a five-justice panel if the court is considering overruling an earlier case. A three-justice panel will generally follow a previous decision except in “very exceptional circumstances” (Bell v. Cessna Aircraft Company) such as where the previous decision is “manifestly wrong, or should no longer be followed, because, for example, the previous decision failed to consider applicable legislation or binding authorities, or, if followed, would result in a severe injustice” (British Columbia v. Worthington (Canada) Inc.).
As for the Supreme Court o Canada, see the recent concurring reasons of four justices in R. v. Kirkpatrick, which sets out three circumstances in which the SCC may be warranted in overturning its own precedents: a) the earlier decision was per incuriam, b) the earlier decision has proven unworkable, or c) the earlier decision’s rationale has been eroded by significant societal or legal change.
c. Asking a trial court to disregard a decision of a higher court
As noted above, lower courts are bound by decisions of higher courts in the judicial hierarchy. Only in highly exceptional circumstances may a lower court be permitted to disregard higher court decisions. See Canada (Attorney General) v. Bedford, Carter v. Canada (Attorney General), and R. v. Comeau (the “Bedford Trilogy”), where the Supreme Court of Canada outlined a stringent two-part test for lower courts disregarding precedent. (Frankly, the test is so stringent I’m not even going to get into it here).
Conclusion
This is not to say you should steer your clients to court in the face of controlling adverse authority. Don’t lose your healthy respect for precedent. But do remember that the law is capable of change. Keep searching out techniques for advancing your client’s case, even in the face of adverse authority.
Additional Reading
For a more careful, thorough, reasoned approach to precedent and stare decisis, check out these sources, all of which were a great help to me in writing this blog post:
Justice Malcolm Rowe and Leanna Katz’s article, A Practical Guide to Stare Decisis (2020) 41 Windsor Review of Legal and Social Issues 1.
Chapters 7 and 8 of the book Good Judgment: Making Judicial Decisions by Robert J. Sharpe (formerly of the Ontario Court of Appeal).
Stare Decisis and Techniques of Legal Reasoning and Legal Argument published in 1987 by Paul M. Perell (now Justice Perell of the Ontario Superior Court of Justice). It holds up very well despite its age. You can find it in the Canadian Legal Research and Writing Guide, available on CanLII.
