ORIENTATION TO LAW LECTURES: INTRODUCTION TO THE CONVENTIONS OF PRECEDENT- 1990
Alvin Esau, Faculty of Law, University of Manitoba
Given the controversy over judicial activism, it is especially important to remember the constraints that the traditional doctrines of precedent provide to our legal system. We may yet come to appreciate the certainty and predictability given by a stricter system of precedent. Do we want adjudication by the “rule of law” or adjudication by the “luck of the draw” (as to the ideological predilections of particular judges)? I will now give a brief overview of some of the conventions of precedent before we look at this topic with more depth.
1. THE CONSIDERATION CONVENTION
Suppose I go into court with a list of cases that I want to argue. The judge says, "I don't want to hear about any of these cases. Just tell me why as a matter of policy I should decide for your client." What would be wrong with this?
In a Common Law legal system, judges are at least bound to consider relevant past precedent cases before they decide the problem case before them. So, when we have a problem case we do not just start fresh. We look back to see how past cases, if any, have considered the point before us. It may be that we disagree with the past, that we will start a new course if we can, but we still at least consider the past precedents. In deciding the current problem case, we expect that a court will have to justify why the decision should be different from past precedent, and we also expect that the court may legitimate its decision by showing that it is consistent with past precedent.
But to simply leave this convention stated so generally is misleading. The gravitational weight of each past precedent on our current problem case may vary. If we have a problem case, we may identify, as it were, a pool of potential precedent cases and in that pool of precedent cases there may be some that are binding, some that fall into some degree of being persuasive, and some that fall along a scale of being relevant, assuming that all of these cases are potentially analogous to the facts and issues in the problem case. In a very simplistic way, by binding I mean that the precedent must be followed. As we will note in a minute, generally lower courts are bound by higher courts within their own court hierarchy. By persuasive I mean that the precedent should be followed unless you can give a good reason not to. By relevant I mean that the case might well be applied or not in the justification of the decision to be made. Now how to we determine the weights of precedent?
Suppose my daughter comes to me and says, "Father dear, I want to take swimming lessons, please hand over $l50 for the registration fees."
Suppose my niece comes to me and says, "Uncle dear, I want to take swimming lessons, please hand over $l50 for the registration fees."
Suppose my friend's daughter comes to me and says, "Oh, dear friend of my daddy, please hand over $l50 for the registration fees for swimming lessons."
Suppose a total stranger comes to me and says, "Oh dear easy mark, please hand over $l50 for the registration fees for swimming lessons that I want to take."
I seem to be a “real dear” today to a lot of people who want something from me. Now I consider in each case whether to hand over the money. In what way does my consideration differ from case to case? Each request has a different weight or status in my consideration of it by reason of its relationship to me. And that is sort of what is involved in the identification of the precedential weight of previous cases.
Each relevant precedent case has a different weight or status by reason of the geographical relationship it has to you in the court system of your jurisdiction. There may be some cases within your own jurisdiction that you must give very serious consideration to because they are binding, or they are highly persuasive. Just as your own daughter's request for the money is the most compelling simply because you are her parent and provider, so the past cases that have been decided within your own court structure, especially your own highest court, need to be given special consideration. With other cases outside your own court jurisdiction, you might not be faulted if you had overlooked them, or had given little regard to them, just as I may not be faulted for not giving a stranger money for swimming lessons.
For Manitoba we have a court structure with the Supreme Court of Canada at the apex, and then going downwards, we have the Manitoba Court of Appeal, then the Manitoba Queen's Bench and then finally the Manitoba Provincial Court. We also have another court system which has jurisdiction over some areas of federal law with the Supreme Court of Canada again at the apex, and then going downwards we have the Federal Court of Appeal and then the Federal Court Trial Division and then the Tax Court of Canada. I will outline the basic jurisdictional and constitutional relationships between these various courts in class.
Now all other cases are outside our immediate jurisdictional hierarchy, but we still look at the relationship we have with them. For example, suppose that you have one case from the Alberta Court of Appeal, and you have another case from the California Supreme Court, which of these cases is likely to be given more weight within your own court structure? We would assume that the Alberta Court of Appeal is more like your niece while the California case is more like the daughter of a friend.
Now a second factor of weight is the jurisdictional position of the precedential case within its own jurisdiction, and this applies to cases both within your own geographical court structure and to cases outside it that you might be considering. That is, the first factor was our geographical position in relationship to a precedent case. The second factor, however, is the position of the precedent case, not where we stand in relationship to it, but rather where it stands within its own hierarchy. Appeal court decisions have more weight than trial court decisions. Highest Court decisions have more weight than intermediate appeal courts, and so forth. Obviously, an Alberta Court of Appeal case is more persuasive than a case from the Alberta trial court, even though both of those precedents are outside our immediate geographical court system. However, if we are arguing a case in the Manitoba Court of Appeal and we present a case from the Alberta Court of Appeal and another case from the Manitoba Queen’s Bench, which case has more weight? The Manitoba trial court is within our own jurisdiction, but at the same time the Alberta Court of Appeal case was decided by a higher court in a sister jurisdiction. The Manitoba Court of Appeal is not bound to give the Alberta Court of Appeal special consideration over a Manitoba trial court decision, but it could choose to do so on the bases of this second factor of hierarchy alone.
One last jurisdictional point about the identification of how much consideration to give to precedent deals with the fact that weights of cases are to a degree related to where we are in the litigation of any particular problem case. Are we dealing with a problem before it has gone to court at all? Are we dealing with it at trial, or are we dealing with it at some level of appeal? The weights of cases vary not just as between inside v. outside jurisdictions but within the jurisdiction itself. As you go up the court chain you may actually shed binding cases and when you get to the apex there may be no binding cases, strictly speaking, although of course there are still weighty persuasive past precedents. We will look at the conventions of precedent at various levels with much more detail in the next section of this course.
The jurisdictional relationships are not, however, the only factors of weight. I can imagine, for example, that a youth who is a stranger to me, but is part of my twin sons’ water polo club, might walk up to me and say, “Dear Daddy of other boys in my club, my parents are not well to do and I have won a lot of swimming competitions and am a top scorer in polo and I want to train to make the Canadian Junior Olympic team. I need $5,000 for training fees. I would very much appreciate it if you could contribute $l50 to help me reach my goal." I might consider the request quite seriously. Unlike the stranger who simply asked for money for swimming lessons, this person is making a good case for my altruism in terms of his need and his talent and his potential contribution to the country.
Similarly, there are a host of relevant factors that might make a case more persuasive- that is give it more weight, aside from jurisdictional considerations. A third factor of weight is simply the merits of the precedent case. It may be an especially well reasoned judgment. Unless we have contrary authority that is binding on us, we can always look at relevant cases and urge the court to follow them even though they are outside our jurisdiction of courts.
In addition to merits, we may find that some cases outside of our jurisdiction are actually more on point as a matter of analogy reasoning than any case we have from within our own jurisdiction.
Furthermore, there is the factor of the reputation of a court or a particular judge. Special consideration in Canada is often given to the English courts, particularly the House of Lords and the English Court of Appeal because up until fairly recently these courts were routinely viewed by the “colonial” courts of Canada to be the mother courts of the common law. Increasingly we now live with the globalization of law, and this leads to increased references to the precedent created by various International Law Courts and the European Community Law Courts, to name just a few.
Another factor of weight is time. More recent cases may be given more weight because the holdings may be more reflective of contemporary circumstances. Another factor, when dealing with appeal decisions, is whether or not the court has been unanimous, or at least has spoken with a clear majority, or whether the court is badly divided about what they think the holding of the case should be.
Another factor of weight, irrespective of where the case is from, is the consideration already given to the precedent case in other precedent cases. We do not just consider the case, but we must consider what consideration has already been given to the case. If I find a relevant precedent within the pool that I am particularly interested in following or distinguishing, I may go into the library or onto the internet to some service that provides a “cases judicially considered” service, because I want to see how the case has already fared in terms of the weight assigned to it by other cases. In the “cases judicially considered” references, I may find that my particular case has been mentioned or referred to in other cases; has been considered, has been followed, or applied, or not followed, or distinguished, or explained, or discussed, or it has been approved, or disapproved, or even over-ruled, or distinguished, or resurrected, and so forth. You will be looking at this with greater depth in your Legal Methods course.
So cases as a whole have different weights, but now we have to go further and note again that within each case there are legal rules or principles to be constructed which also have different weights.
We have noted that, depending on where you stand, you will have precedent cases that are binding, and cases that are persuasive in some degree, and then cases that are at least relevant. But remember that no matter where the case is from, when we reason with that case in terms of our problem case, we still try to identify the holding of that case as opposed to statements of law that are obiter. Thus, the holding will always have more weight than the obiter.
If the ratio is a rule of law that the binding case stands for, I am bound by the ratio, but I am not bound by the obiter, but notice that the obiter has a certain kind of weight as well in terms of status. The fact that the obiter comes from a binding case gives that obiter statement of law a certain weight for my consideration even though I am not strictly bound to follow it. The Supreme Court can only take so many cases a year, so in making decisions the Court may well pronounce on matters that are not strictly necessary to the decision. These statements of law may be obiter, but because they come from the Supreme Court, they nevertheless have great persuasive weight. Some members of the Court think that some dicta should even be binding on lower courts. I disagree, but then who cares what my opinion is.
If we are dealing with persuasive cases, it is the ratio of the case that is the most persuasive, although I am not strictly bound by it. The obiter of a persuasive case is less persuasive. Similarly with a relevant case- what is most relevant is the ratio of the case, not the obiter. So we need to look at this concept of ratio v. obiter as essential to legal reasoning, whatever the status of the case. The real difficulty is how to arrive at the holdings of any case as we have seen.
So this is the consideration convention. You look to past cases to solve present disputes. However, the cases to be considered have different weights. Note that in the classroom little reference to weights of cases is necessarily given. We are given a host of cases in our casebooks to help us learn the legal principles in various areas. We are told to consider these cases for purposes of discussion. But if you are taking a case to court or trying to advise a client on a legal problem, you must be much more aware of the different weights of the precedents.
We have also seen something fundamental about the common law system in terms of case law, if you have not already noted it, namely that to a degree we have a TRANSNATIONAL CORPUS OF LAW when we deal with case law. We can turn to the courts of New Zealand or Australia or Virginia for inspiration. We might apply a common law rule here in Manitoba even though the court that made it was in New Zealand or England. This is different than legislation. Legislation is jurisdictionally bound. Basically, aside from some very complex principles you will learn in your Conflicts of Law course, legislation applies to the persons within the borders of the jurisdiction that passed the legislation. We do not apply the legislation of Virginia to our citizens in Manitoba, even when the court might think it is excellent legislation that fills a gap that is needed in our province. But even if legislation is jurisdictionally limited, remember that interpretation of legislation need not be. That is the courts can look to the statutory interpretation precedents laid down by courts outside of our jurisdiction, if those courts have given interpretations to similar legislation in their own jurisdiction.
2. THE VERTICAL CONVENTION
Within a hierarchical court structure, decisions of higher courts are binding on all courts that are lower within the structure. That means that the Supreme Court of Canada binds all the courts that are lower within it, in terms of our jurisdiction. It binds the Manitoba Court of Appeal, and it binds the Manitoba Queen's Bench, and it binds the Manitoba Provincial Court. Similarly, the Manitoba Court of Appeal does not bind the Supreme Court of Canada, which is higher than it, but it binds the lower courts, the Manitoba Queen's Bench and the Manitoba Provincial Court. Similarly, the Manitoba Queen's Bench binds the Manitoba Provincial Court.
Suppose you have a problem case. You find a l980 Manitoba Court of Appeal precedent case right on point. You must initiate the problem case in the Manitoba Queen's Bench. Now what does the Manitoba Queen's Bench do with the precedent from the Manitoba Court of Appeal? Well, it follows from the vertical convention that the ratio of the precedent case is binding on the Manitoba Queen's bench. Unless you can distinguish the case on the facts or argue that the rule is obiter and not ratio or can reconstruct the ratio so as to exclude your case, you are bound by it.
Now suppose however that you appeal your case to the Manitoba Court of Appeal and let’s assume for the moment that the Court of Appeal follows its own past precedent. Now suppose however that you appeal the case to the Supreme Court of Canada. Notice now that the Supreme Court of Canada is not bound by the Manitoba Court of Appeal case of l980 because it is a lower court decision. The Supremes may of course follow it or approve it, but they are not bound to do so. Indeed, they may overrule it.
3. THE HORIZONTAL CONVENTION OF PRECEDENT
Here we deal with the issue of whether any particular court is bound, not by upper court precedent, if any, but by the precedents made previously by that court itself. Is the Supreme Court bound by its own past cases? Is the Manitoba Court of Appeal bound by its previous cases? We will look at these issues in more detail in the next section of the course. Just for now note that the House of Lords and the Supreme Court of Canada and most other highest courts of a common law jurisdiction used to consider themselves bound to follow their own past cases, but this is longer the case. There are some traditionalists who regret that this has changed. As you get further into the debates over judicial activism you may want to make up your own mind about this.
4. THE CONFIRMATION-REVERSAL-ELEVATION-BURIAL CONVENTION
Now notice finally that when we deal with a history of a case we may separate what might be called the party case history from the precedential case history. For example, suppose you have the case of Smith v. Jones, and at the trial level the case was decided and no appeal from the decision was taken. As far as the parties are concerned the trial court case is the end of the matter. Now suppose there is an appeal, and the appeal court confirms the trial level decision, or reverses that particular decision. Now the case of Smith v. Jones exists at two levels, the trial level and the appeal level. Of course, the appeal decision is the crucial case as a matter of precedent. Perhaps the case will even go to the Supreme Court of Canada and there will be three different levels of courts that have decided the particular case of Smith v. Jones. There are lots of cases that are important enough that the decisions of all three courts will be published in law report series. When you read cases you will want to clearly identify what I call the party case history. It is obviously rather embarrassing to be quoting happily from a case and then having it pointed out to you that your case actually was appealed and reversed on appeal!
So, the party history of the case is the actual number of hearings and dispositions in the particular case and the reversals or confirmations that took place along the way. But now go to the precedential case history of Smith v. Jones. Once the decision has finally ended of Smith v. Jones, something can still happen to the Smith v. Jones case. A higher court in a more recent and different decision can bury a lower court's decision (or even its own past decision) by overruling it, or a court can follow and confirm past precedent, or a higher court can even elevate a lower court's decision by adopting it in a different case. So, we can be embarrassed again if we do not carefully determine the precedent history of the case we are using.
Alvin Esau, Faculty of Law, University of Manitoba
Given the controversy over judicial activism, it is especially important to remember the constraints that the traditional doctrines of precedent provide to our legal system. We may yet come to appreciate the certainty and predictability given by a stricter system of precedent. Do we want adjudication by the “rule of law” or adjudication by the “luck of the draw” (as to the ideological predilections of particular judges)? I will now give a brief overview of some of the conventions of precedent before we look at this topic with more depth.
1. THE CONSIDERATION CONVENTION
Suppose I go into court with a list of cases that I want to argue. The judge says, "I don't want to hear about any of these cases. Just tell me why as a matter of policy I should decide for your client." What would be wrong with this?
In a Common Law legal system, judges are at least bound to consider relevant past precedent cases before they decide the problem case before them. So, when we have a problem case we do not just start fresh. We look back to see how past cases, if any, have considered the point before us. It may be that we disagree with the past, that we will start a new course if we can, but we still at least consider the past precedents. In deciding the current problem case, we expect that a court will have to justify why the decision should be different from past precedent, and we also expect that the court may legitimate its decision by showing that it is consistent with past precedent.
But to simply leave this convention stated so generally is misleading. The gravitational weight of each past precedent on our current problem case may vary. If we have a problem case, we may identify, as it were, a pool of potential precedent cases and in that pool of precedent cases there may be some that are binding, some that fall into some degree of being persuasive, and some that fall along a scale of being relevant, assuming that all of these cases are potentially analogous to the facts and issues in the problem case. In a very simplistic way, by binding I mean that the precedent must be followed. As we will note in a minute, generally lower courts are bound by higher courts within their own court hierarchy. By persuasive I mean that the precedent should be followed unless you can give a good reason not to. By relevant I mean that the case might well be applied or not in the justification of the decision to be made. Now how to we determine the weights of precedent?
Suppose my daughter comes to me and says, "Father dear, I want to take swimming lessons, please hand over $l50 for the registration fees."
Suppose my niece comes to me and says, "Uncle dear, I want to take swimming lessons, please hand over $l50 for the registration fees."
Suppose my friend's daughter comes to me and says, "Oh, dear friend of my daddy, please hand over $l50 for the registration fees for swimming lessons."
Suppose a total stranger comes to me and says, "Oh dear easy mark, please hand over $l50 for the registration fees for swimming lessons that I want to take."
I seem to be a “real dear” today to a lot of people who want something from me. Now I consider in each case whether to hand over the money. In what way does my consideration differ from case to case? Each request has a different weight or status in my consideration of it by reason of its relationship to me. And that is sort of what is involved in the identification of the precedential weight of previous cases.
Each relevant precedent case has a different weight or status by reason of the geographical relationship it has to you in the court system of your jurisdiction. There may be some cases within your own jurisdiction that you must give very serious consideration to because they are binding, or they are highly persuasive. Just as your own daughter's request for the money is the most compelling simply because you are her parent and provider, so the past cases that have been decided within your own court structure, especially your own highest court, need to be given special consideration. With other cases outside your own court jurisdiction, you might not be faulted if you had overlooked them, or had given little regard to them, just as I may not be faulted for not giving a stranger money for swimming lessons.
For Manitoba we have a court structure with the Supreme Court of Canada at the apex, and then going downwards, we have the Manitoba Court of Appeal, then the Manitoba Queen's Bench and then finally the Manitoba Provincial Court. We also have another court system which has jurisdiction over some areas of federal law with the Supreme Court of Canada again at the apex, and then going downwards we have the Federal Court of Appeal and then the Federal Court Trial Division and then the Tax Court of Canada. I will outline the basic jurisdictional and constitutional relationships between these various courts in class.
Now all other cases are outside our immediate jurisdictional hierarchy, but we still look at the relationship we have with them. For example, suppose that you have one case from the Alberta Court of Appeal, and you have another case from the California Supreme Court, which of these cases is likely to be given more weight within your own court structure? We would assume that the Alberta Court of Appeal is more like your niece while the California case is more like the daughter of a friend.
Now a second factor of weight is the jurisdictional position of the precedential case within its own jurisdiction, and this applies to cases both within your own geographical court structure and to cases outside it that you might be considering. That is, the first factor was our geographical position in relationship to a precedent case. The second factor, however, is the position of the precedent case, not where we stand in relationship to it, but rather where it stands within its own hierarchy. Appeal court decisions have more weight than trial court decisions. Highest Court decisions have more weight than intermediate appeal courts, and so forth. Obviously, an Alberta Court of Appeal case is more persuasive than a case from the Alberta trial court, even though both of those precedents are outside our immediate geographical court system. However, if we are arguing a case in the Manitoba Court of Appeal and we present a case from the Alberta Court of Appeal and another case from the Manitoba Queen’s Bench, which case has more weight? The Manitoba trial court is within our own jurisdiction, but at the same time the Alberta Court of Appeal case was decided by a higher court in a sister jurisdiction. The Manitoba Court of Appeal is not bound to give the Alberta Court of Appeal special consideration over a Manitoba trial court decision, but it could choose to do so on the bases of this second factor of hierarchy alone.
One last jurisdictional point about the identification of how much consideration to give to precedent deals with the fact that weights of cases are to a degree related to where we are in the litigation of any particular problem case. Are we dealing with a problem before it has gone to court at all? Are we dealing with it at trial, or are we dealing with it at some level of appeal? The weights of cases vary not just as between inside v. outside jurisdictions but within the jurisdiction itself. As you go up the court chain you may actually shed binding cases and when you get to the apex there may be no binding cases, strictly speaking, although of course there are still weighty persuasive past precedents. We will look at the conventions of precedent at various levels with much more detail in the next section of this course.
The jurisdictional relationships are not, however, the only factors of weight. I can imagine, for example, that a youth who is a stranger to me, but is part of my twin sons’ water polo club, might walk up to me and say, “Dear Daddy of other boys in my club, my parents are not well to do and I have won a lot of swimming competitions and am a top scorer in polo and I want to train to make the Canadian Junior Olympic team. I need $5,000 for training fees. I would very much appreciate it if you could contribute $l50 to help me reach my goal." I might consider the request quite seriously. Unlike the stranger who simply asked for money for swimming lessons, this person is making a good case for my altruism in terms of his need and his talent and his potential contribution to the country.
Similarly, there are a host of relevant factors that might make a case more persuasive- that is give it more weight, aside from jurisdictional considerations. A third factor of weight is simply the merits of the precedent case. It may be an especially well reasoned judgment. Unless we have contrary authority that is binding on us, we can always look at relevant cases and urge the court to follow them even though they are outside our jurisdiction of courts.
In addition to merits, we may find that some cases outside of our jurisdiction are actually more on point as a matter of analogy reasoning than any case we have from within our own jurisdiction.
Furthermore, there is the factor of the reputation of a court or a particular judge. Special consideration in Canada is often given to the English courts, particularly the House of Lords and the English Court of Appeal because up until fairly recently these courts were routinely viewed by the “colonial” courts of Canada to be the mother courts of the common law. Increasingly we now live with the globalization of law, and this leads to increased references to the precedent created by various International Law Courts and the European Community Law Courts, to name just a few.
Another factor of weight is time. More recent cases may be given more weight because the holdings may be more reflective of contemporary circumstances. Another factor, when dealing with appeal decisions, is whether or not the court has been unanimous, or at least has spoken with a clear majority, or whether the court is badly divided about what they think the holding of the case should be.
Another factor of weight, irrespective of where the case is from, is the consideration already given to the precedent case in other precedent cases. We do not just consider the case, but we must consider what consideration has already been given to the case. If I find a relevant precedent within the pool that I am particularly interested in following or distinguishing, I may go into the library or onto the internet to some service that provides a “cases judicially considered” service, because I want to see how the case has already fared in terms of the weight assigned to it by other cases. In the “cases judicially considered” references, I may find that my particular case has been mentioned or referred to in other cases; has been considered, has been followed, or applied, or not followed, or distinguished, or explained, or discussed, or it has been approved, or disapproved, or even over-ruled, or distinguished, or resurrected, and so forth. You will be looking at this with greater depth in your Legal Methods course.
So cases as a whole have different weights, but now we have to go further and note again that within each case there are legal rules or principles to be constructed which also have different weights.
We have noted that, depending on where you stand, you will have precedent cases that are binding, and cases that are persuasive in some degree, and then cases that are at least relevant. But remember that no matter where the case is from, when we reason with that case in terms of our problem case, we still try to identify the holding of that case as opposed to statements of law that are obiter. Thus, the holding will always have more weight than the obiter.
If the ratio is a rule of law that the binding case stands for, I am bound by the ratio, but I am not bound by the obiter, but notice that the obiter has a certain kind of weight as well in terms of status. The fact that the obiter comes from a binding case gives that obiter statement of law a certain weight for my consideration even though I am not strictly bound to follow it. The Supreme Court can only take so many cases a year, so in making decisions the Court may well pronounce on matters that are not strictly necessary to the decision. These statements of law may be obiter, but because they come from the Supreme Court, they nevertheless have great persuasive weight. Some members of the Court think that some dicta should even be binding on lower courts. I disagree, but then who cares what my opinion is.
If we are dealing with persuasive cases, it is the ratio of the case that is the most persuasive, although I am not strictly bound by it. The obiter of a persuasive case is less persuasive. Similarly with a relevant case- what is most relevant is the ratio of the case, not the obiter. So we need to look at this concept of ratio v. obiter as essential to legal reasoning, whatever the status of the case. The real difficulty is how to arrive at the holdings of any case as we have seen.
So this is the consideration convention. You look to past cases to solve present disputes. However, the cases to be considered have different weights. Note that in the classroom little reference to weights of cases is necessarily given. We are given a host of cases in our casebooks to help us learn the legal principles in various areas. We are told to consider these cases for purposes of discussion. But if you are taking a case to court or trying to advise a client on a legal problem, you must be much more aware of the different weights of the precedents.
We have also seen something fundamental about the common law system in terms of case law, if you have not already noted it, namely that to a degree we have a TRANSNATIONAL CORPUS OF LAW when we deal with case law. We can turn to the courts of New Zealand or Australia or Virginia for inspiration. We might apply a common law rule here in Manitoba even though the court that made it was in New Zealand or England. This is different than legislation. Legislation is jurisdictionally bound. Basically, aside from some very complex principles you will learn in your Conflicts of Law course, legislation applies to the persons within the borders of the jurisdiction that passed the legislation. We do not apply the legislation of Virginia to our citizens in Manitoba, even when the court might think it is excellent legislation that fills a gap that is needed in our province. But even if legislation is jurisdictionally limited, remember that interpretation of legislation need not be. That is the courts can look to the statutory interpretation precedents laid down by courts outside of our jurisdiction, if those courts have given interpretations to similar legislation in their own jurisdiction.
2. THE VERTICAL CONVENTION
Within a hierarchical court structure, decisions of higher courts are binding on all courts that are lower within the structure. That means that the Supreme Court of Canada binds all the courts that are lower within it, in terms of our jurisdiction. It binds the Manitoba Court of Appeal, and it binds the Manitoba Queen's Bench, and it binds the Manitoba Provincial Court. Similarly, the Manitoba Court of Appeal does not bind the Supreme Court of Canada, which is higher than it, but it binds the lower courts, the Manitoba Queen's Bench and the Manitoba Provincial Court. Similarly, the Manitoba Queen's Bench binds the Manitoba Provincial Court.
Suppose you have a problem case. You find a l980 Manitoba Court of Appeal precedent case right on point. You must initiate the problem case in the Manitoba Queen's Bench. Now what does the Manitoba Queen's Bench do with the precedent from the Manitoba Court of Appeal? Well, it follows from the vertical convention that the ratio of the precedent case is binding on the Manitoba Queen's bench. Unless you can distinguish the case on the facts or argue that the rule is obiter and not ratio or can reconstruct the ratio so as to exclude your case, you are bound by it.
Now suppose however that you appeal your case to the Manitoba Court of Appeal and let’s assume for the moment that the Court of Appeal follows its own past precedent. Now suppose however that you appeal the case to the Supreme Court of Canada. Notice now that the Supreme Court of Canada is not bound by the Manitoba Court of Appeal case of l980 because it is a lower court decision. The Supremes may of course follow it or approve it, but they are not bound to do so. Indeed, they may overrule it.
3. THE HORIZONTAL CONVENTION OF PRECEDENT
Here we deal with the issue of whether any particular court is bound, not by upper court precedent, if any, but by the precedents made previously by that court itself. Is the Supreme Court bound by its own past cases? Is the Manitoba Court of Appeal bound by its previous cases? We will look at these issues in more detail in the next section of the course. Just for now note that the House of Lords and the Supreme Court of Canada and most other highest courts of a common law jurisdiction used to consider themselves bound to follow their own past cases, but this is longer the case. There are some traditionalists who regret that this has changed. As you get further into the debates over judicial activism you may want to make up your own mind about this.
4. THE CONFIRMATION-REVERSAL-ELEVATION-BURIAL CONVENTION
Now notice finally that when we deal with a history of a case we may separate what might be called the party case history from the precedential case history. For example, suppose you have the case of Smith v. Jones, and at the trial level the case was decided and no appeal from the decision was taken. As far as the parties are concerned the trial court case is the end of the matter. Now suppose there is an appeal, and the appeal court confirms the trial level decision, or reverses that particular decision. Now the case of Smith v. Jones exists at two levels, the trial level and the appeal level. Of course, the appeal decision is the crucial case as a matter of precedent. Perhaps the case will even go to the Supreme Court of Canada and there will be three different levels of courts that have decided the particular case of Smith v. Jones. There are lots of cases that are important enough that the decisions of all three courts will be published in law report series. When you read cases you will want to clearly identify what I call the party case history. It is obviously rather embarrassing to be quoting happily from a case and then having it pointed out to you that your case actually was appealed and reversed on appeal!
So, the party history of the case is the actual number of hearings and dispositions in the particular case and the reversals or confirmations that took place along the way. But now go to the precedential case history of Smith v. Jones. Once the decision has finally ended of Smith v. Jones, something can still happen to the Smith v. Jones case. A higher court in a more recent and different decision can bury a lower court's decision (or even its own past decision) by overruling it, or a court can follow and confirm past precedent, or a higher court can even elevate a lower court's decision by adopting it in a different case. So, we can be embarrassed again if we do not carefully determine the precedent history of the case we are using.
