Canada: Itís Not Stale, Itís Stare Decisis: The NSSCís Decision In Ackerman v Deckman Trust


It's safe to say that "stare decisis" is one of the most common Latin phrases in law (and that's saying something). It literally means "to stand by that which was decided."1 As a legal principle, stare decisis sets the parameters for when courts must follow, or can depart from, precedent.

The Plaintiffs in the recent Nova Scotia case of Ackerman v Deckman Trust, 2014 NSSC 335 tested the boundaries of stare decisis, but—spoiler alert—the Court "stood by that which was decided" and followed an earlier Court of Appeal decision.


The Plaintiffs were mortgagees and had brought foreclosure proceedings.2 The Defendant made what it thought to be a full payment after the Plaintiffs issued their Statement of Claim, but the Plaintiffs considered it to be part payment only. They also claimed entitlement to solicitor-client costs pursuant to the mortgage, and sought summary judgment on that issue.3

By way of review, Rule 77.01(1)(b) of the Nova Scotia Civil Procedure Rules says that solicitor-client costs "may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation." (Emphasis added.) The more typical measure is "party and party costs," explained in Rule 77.01(1)(a) as an award "by which one party compensates another party for part of the compensated party's expenses of litigation."

The legal issue on the summary judgment motion was whether the mortgage required the mortgagor to essentially cover the mortgagee's legal costs at the "exceptional" solicitor-client level. The relevant part of the clause at issue provided that:4

...all solicitor's charges or commissions for in respect of the collection of any overdue interest, principle, insurance premiums or any other monies whatsoever payable by the Mortgagor hereunder, as between solicitor and client, whether any action or any judicial proceedings to enforce such payment has been taken or not and the amount so paid shall be added to the debt hereby secured and be a charge on the said lands and shall bear interest at the same rate and shall be forthwith payable by the Mortgagor to the Mortgagee and the non-payment of such an amount shall entitle the Mortgagee to exercise the powers exercisable for breach of the covenant first here and before contained...

[Emphasis added]

The Defendant disputed that it had to pay the higher amount.

Arguments on stare decisis

Both sides were able to point to allegedly supportive precedents.

The Plaintiff, to Canada Trustco Mortgage Co v Homburg ("Homburg"),5 where the NS Supreme Court held that "the law in Nova Scotia is that where a mortgage stipulates the mortgagor pays to the mortgagee costs on a solicitor and client basis, costs should be awarded on that basis except in special circumstances."6 In Homburg, Justice Davison accepted that "special circumstances" would exist where solicitor-client costs would be "unfair or unduly onerous,"7 and agreed that special circumstances existed on the facts because the mortgagee's firm had billed "unnecessary" legal costs.8

The Defendant relied on the much earlier decision of the Appeal Division (as it then was) in Craig v Sousa,9 where the clause was almost word-for-word the same as in the present case. The Appeal Division held that the clause did not require payment of the solicitor-client amount:

It has nothing to do with what happens after the mortgage debt has become crystallized and is the subject of foreclosure proceedings. It thus cannot affect the taxable costs that the trial judge in her discretion could order paid, nor can it limit that discretion.10

In the result, Justice Scaravelli in Ackerman distinguished Homburg and followed the Appeal Division in Craig.

 Homburg was distinguishable because the mortgage clause at issue there "made specific reference to solicitor-client costs (not costs 'as between solicitor and client') and to a foreclosure proceeding."11 Relying on this difference in wording was not just splitting hairs, as a comparison of both cases revealed:

Whereas the provision in Craig did not address what happened after crystallization of the debt and the commencement of foreclosure proceeding[s], the Homburg clause clearly stated that "after default, the mortgagor shall pay the mortgagees legal expenses on a solicitor and client basis with respect to collecting money payable under the mortgage".12

Other cases had misinterpreted the reach of Homburg, which was tied to the "specific language of the mortgage" and not meant as a broad statement on the availability of solicitor-client costs; according to Justice Scaravelli, "The cases that followed tended to treat Homburg as if it set out a sweeping rule governing any mortgage that permits recovery of legal costs regardless of the specific language."13

And, of course, as an appellate-level decision, Craig was presumptively binding on the Court in Ackerman:

[23]         The general principle of stare decisis is that a subordinate court must not disregard a prior decision of a Superior Court within its territorial jurisdiction.  An exception to the rule exists where a decision is reached per incuriam.  Such a decision ignores case law which would have been binding on the court.  Halsbury's Laws of Canada – Civil Procedure [2012] Reissue, see also Smith v. Atlantic Wholesalers Limited [2012] N.S.J. 17.

The Court's reference to Smith v Atlantic Wholesalers Ltd is noteworthy. In that case, Justice Wood wrestled with the requirements of stare decisis, but ultimately concluded that a previous Court of Appeal decision—on the applicable limitation period for a third-party indemnity claim—was wrongly decided, because it failed to consider a Supreme Court of Canada case on the same issue. Justice Wood refused to follow the Court of Appeal case,14 stating that "a decision is considered to be per incuriam and therefore an exception to the stare decisis rule if it is made without consideration of existing binding authority."15

Returning to Ackerman, Justice Scaravelli rejected the Plaintiffs' argument that Craig was wrongly decided.16

Recall that Craig was decided in 1984: The Plaintiffs' boundary-pushing alternative argument was that Craig was "dated" and "the passage of time can cause stare decisis to lapse."17

Noting that the Plaintiffs had not provided any authority to support this argument,18 Justice Scaravelli did not accept that position, concluding:

In my view there is no basis to find that Craig does not remain good law. Only a contrary decision of the Court of Appeal or the Supreme Court of Canada can have that effect. It follows that the Craig decision governs a mortgage with similar language to that in this case. ... Accordingly the defendant is not contractually obligated to pay costs as on an elevated scale between solicitor and client in these proceedings.19

Final comments

Ackerman is a relatively by-the-book application of stare decisis, but a straightforward review of a common concept is always welcome. Also important is the Court's refusal to engage with the idea that a case can become "stale" and inapplicable by the passage of time alone. Finally, the case comes at an interesting time when compared to what's happening on the parallel plane of constitutional law.

In the Supreme Court of Canada's decision in Canada (Attorney General) v Bedford,20  Chief Justice McLachlin accepted that stare decisis is more flexible in constitutional cases:

[43]      The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.  It submits that lower courts should not be limited to acting as "mere scribe[s]", creating a record and findings without conducting a legal analysis (I.F., at para. 25).

[44]      I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach.  In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.  This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

The Supreme Court has therefore opened the door to creative arguments about the scope of stare decisis in constitutional challenges. But in a more typical civil suit, a court is much less likely to 'colour outside the lines' of stare decisis. Ackerman v Deckman Trust is a good reminder of that.


1 Canadian Law Dictionary, 5th ed, sub verbo "stare decisis".

2 Ackerman v Deckman Trust, 2014 NSSC 335 at para 1 ["Decision"].

3 Decision at paras 2-4.

4 As set out in the Decision at para 9.

5 See the Decision at para 10.

6 Canada Trustco Mortgage Co v Homburg (1999), 180 NSR (2d) 258, 1999 CarswellNS 354 (SC) at para 2 ["Homburg" cited to WestlawNext].

7 Homburg at para 4.

8 Homburg at para 20.

9 See the Decision at para 11.

10 Craig v Sousa (1984), 64 NSR (2d) 131, 1984 CarswellNS 265 (SC (AD)) at para 5 [cited to WestlawNext], set out in the Decision at para 12.

11 Decision at para 17.

12 Decision at para 17.

13 Decision at para 24.

14 Smith v Atlantic Wholesalers Ltd, 2012 NSSC 14 at para 46.

15 Smith at para 41. See also the discussion at paras 37-40.

16 Decision at paras 22 and 24-25.

17 Decision at para 22.

18 Decision at para 22.

19 Decision at para 25.

20 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think youíve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaqís use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributorís own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaqís Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaqís Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaqís right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions