The paper examines the evolution of stare decisis in English and Canadian common law and the reorientation of vertical stare decisis following the Bedford Trilogy, in which the Supreme Court of Canada refashioned the doctrine of vertical stare decisis and provided trial judges with additional leeway to depart from precedent in certain circumstances. Some legal scholars criticize the Bedford test for upsetting the balance between the role of trial courts to make findings of fact and that of appellate courts to review lower court decisions for legal errors. Others caution that the Bedford test could, among other things, incentivize the re-litigation of settled issues. A survey of lower court decisions shows that, at least in the early stages of the Bedford test’s application, these concerns are unfounded. Rather, lower courts predominantly continue to adhere to binding precedents in a principled manner, largely for two reasons: the threshold to invoke the Bedford test is reserved for exceptional cases and the SCC has offered limited direction on the circumstances warranting judicial intervention. These decisions demonstrate that lower courts require further direction on when they could and should apply the Bedford test. Without knowing when the factual record or circumstances have sufficiently shifted the parameters of debate, lower courts may feel ill-equipped to depart from binding precedents. The paper proposes a five-part framework lower courts could apply to determine with greater certainty when the requirements of the Bedford test are met.
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Shannon Hale, "The Bedford Trilogy and the Shifting Foundations of Vertical Stare Decisis: Emancipation from Judicial Restraint?" (2020) 29: 1 Dal J Leg Stud 97.