The Supreme court of Canada has recently suggested that,
in certain circumstances, a party can also rely on the doctrine of
stare decisis to dismiss an action at a preliminary stage
where the issues in the action have already been adjudicated by a
higher court in a previous decision and the strict requirements of
res judicata are not met.
Although this case deals with the Quebec Civil Code,
there is no good reason many of the principles could not be
imported into Canadian common law.
In Attorney General of Canada v. Confédération
des Syndicats Nationaux, 2014 SCC 49, the federal government
reformed the employment insurance program in 1996 by changing the
mechanism for setting the premiums payable by workers and employers
who contributed to the program. These reforms were made pursuant to
the Employment Insurance Act, S.C. 1996, c.23 (the
"1996 Act"). In 1998 and 1999, various Quebec
unions sought to strike certain sections of the 1996 Act as
unconstitutional. The basis for the challenge was that the annual
surpluses created by the new premium-setting mechanism were being
reallocated by the government to its budget deficit reduction. The
unions argued that this was a misappropriation of the monies that
were supposed to be earmarked for employment insurance.
In December, 2008, the Supreme Court of Canada held that the
measures adopted in the 1996 Act were valid and
constitutional, with certain exceptions (the "2008 SCC
In July, 2010, Parliament enacted the Jobs and Economic
Growth Act, S.C. 2010, c.12 (the "2010
Act"). The 2010 Act provided for the closure of the
employment insurance account and the creation of a new Employment
Insurance Operating Account. When the unions filed a motion to
institute proceedings to have certain provisions of the 2010 Act
declared unconstitutional, the Attorney General of Canada filed a
motion to dismiss the action at a preliminary stage on the basis
that the issues raised by the unions had already been decided by
the Supreme Court in the 2008 SCC Decision.
The Supreme Court of Canada agreed with the Attorney General.
The Court dismissed the union's action on the basis that it had
no reasonable chance of success.
In doing so, the Court relied on the doctrine of stare
decisis—a doctrine, as recognized by the Court, not
typically used to dismiss actions. This doctrine provides that
where the legal issues remain the same and arise in a similar
context, the precedent created by the previous judicial decision
"still represents the law and must be followed by the
According to the Court, the doctrine of stare decisis
is similar to the res judicata exception, which also
prevents parties from re-litigating issues already decided by the
Court. Under both doctrines, the legal issues raised by the
applicant must have already been clearly resolved by the courts.
However, unlike res judicata, stare decisis does
not necessarily require "that the dispute be between the same
parties. What must be established is that the issue is the same and
that the questions it raises have already been answered by a higher
court whose judgment has the authority of res
In this case, the 2008 SCC Decision provided a complete, certain
and final solution to the unions' action in this case. In the
2008 SCC Decision, the Court stated that, as government revenues,
the amounts collected as contributions to the employment insurance
program could be used for purposes other than paying employment
insurance benefits. This conclusion dictated the outcome of the
union's current action. Accordingly, the action had no
reasonable chance of success.
This case has important implications for litigants who seek to
re-litigate issues already resolved by a higher or equivalent
court. The decision provides defendants with yet another weapon in
their arsenal to dismiss actions at an early stage, where a
plaintiff brings multiple proceedings relating to the same issues
and already decided in previous decisions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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