What is Stare Decisis and Why do I Care?

Stare decisis is a Latin term meaning “to stand by things decided.” In law, it is a legal doctrine that simply means that decisions of a higher court must be followed by lower courts. The reason for this is both interesting and very important in our common law legal system.

A BREIF HISTORY OF THE LAW

To really understand the reason our legal system evolved to adopt this doctrine, we must first look at the history of the common law. In 1066, William the Conquer set the framework of our modern common law system in motion. This system was enhanced in the 12th century during the reign of King Henry II by creating the King’s Court which he staffed with learned advisors and landowners and what we now know as judges. The crew of King Henry’s advisors would travel around the country and make decisions on cases brought before them. Interestingly, this is how the term “circuit court judge” came to be.

At some point, people began to attend and listen to the different judges of the King’s Court make decisions on cases. Those following the decisions realized there were inconsistencies between the decisions made by different judges. Thus, the profession of a lawyer began. These lawyers would advocate those decisions made by different judges must be the same for the same or similar situations (more on this later). Of course, judges would not want to ruffle the feathers of their fellow judges, so they would listen and rule so that their decisions would be consistent. This doctrine is what we now call “stare decisis.”

WHY DO I CARE?

Now that we have had a very brief history lesson, let’s consider why this is important. There are two sources of law in Canada and in all common law jurisdictions. There is statute law, which is the Acts of Parliament which you might think of as the law. However, we also have judge-made law, which is the common law.

What is interesting is that the Acts of Parliament are often the minimum that one might do in a circumstance. For example, the Employment Standards Act (ESA) identifies the minimum amount of money you must pay an employee, the minimum number of hours that constitutes a full-time position, or the minimum notice period for termination, etc. However, the common law (judge-made law) can supersede the minimums found in statutes. So, judges may have decided that during Covid, for example, one is entitled to a much longer notice period when they are facing termination from their employment.

Again, why do you care? Here’s where stare decisis is going to matter. If judges must follow the decisions of higher courts, and the case is very similar to that of a previous case, than a judge must follow the decision of the higher court. Using the example above of the notice period for termination, that could mean that you are entitled to a great deal more termination pay than you might have had under the ESA.

In more general terms, it is very important for our Society to know what to expect from the courts. The way we do this, as paralegals, is by researching case law. Case law tells us what courts have decided in the past and can be compelling to a judge where a previous case must be followed when the case is from a higher court.

One final thought is that statutes cannot possibly keep up with our changing society. New technologies never thought possible even a few years ago are now commonplace. Even when a determined effort is made to introduce legislation to clarify the obligations of its citizens in these situations, Parliament has many layers of drafting, approvals, and consultations it must undertake before a law can be passed. Who is to oversee disputes until these provisions can be put into place? That unenviable task falls to our judiciary.

If you have any legal questions or concerns, please reach out to the paralegals at DC Paralegals at 519-208-9797 or info@dcparalegals.ca today!