The Circumstances of Change: Understanding the Bedford/Carter Exceptions to Vertical Stare Decisis

22 Pages Posted: 10 Sep 2020

Date Written: March 10, 2020

Abstract

In 2013, the Supreme Court of Canada held that, in some cases, trial courts do not have to follow precedents from higher courts (the “Bedford/Carter exceptions”). However, lacking clear rules for when these exceptions apply, trial courts have been understandably reluctant to use this power. This article proposes that the Bedford/Carter exceptions should apply in three circumstances: where the legal test has changed, where assumptions necessary to the holding no longer apply, and where the precedent conflicts with non-binding law. It comes to this conclusion through two analytical paths. First, it identifies the theoretical justifications for vertical stare decisis and shows that they are weaker in these circumstances. Second, it shows that courts have in fact applied the exceptions in those circumstances.

Keywords: Stare Decisis, Precedent, Judicial Powers, Judicial Activism

Suggested Citation

Abdulla, Adil, The Circumstances of Change: Understanding the Bedford/Carter Exceptions to Vertical Stare Decisis (March 10, 2020). University of Toronto Faculty of Law Review, Vol. 78, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3690181

Adil Abdulla (Contact Author)

Sotos Class Actions ( email )

180 Dundas Street West
Suite 1200
Toronto, Ontario M5G 1Z8
Canada
(416) 572-7325 (Phone)
(416) 977-0717 (Fax)

HOME PAGE: http://https://sotosclassactions.com/team/adil-abdulla/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
160
Abstract Views
1,017
Rank
344,689
PlumX Metrics