Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 35[79] Clearly, Swinton J. did not contemplate that had she allowed the matter toproceed, she could have reconsidered, and even decided not to follow, thegoverning decision of the Supreme Court.[80] The application judge also relied on Leeson v. University of Regina (2007),301 Sask. R. 316 (Q.B.). However, Leeson fails to support the proposition that acourt of first instance can reconsider and effectively overrule a binding precedentfrom the Supreme Court.In Leeson, the court acknowledged that where aplaintiff has alleged changes in the social, political and economic assumptionsunderlying a prior decision of the Supreme Court and has alleged some facts thatcould support those changes, it was not appropriate to prevent the plaintiff fromproceeding with the claim on the basis of stare decisis. This observation wouldallow the plaintiff to build the necessary record, but says nothing about whetherany court other than the Supreme Court has the power to overrule its priordecision.[81] The second reason the application judge erred in reconsidering the s. 2(b)claim is that she incorrectly equated her position, when asked to reconsider abinding decision of the Supreme Court, with the position of a court that is askedto reconsider one of its own prior decisions, as in Polowin Real Estate. Reasonsthat justify a court departing from its own prior decision have no application to,and cannot justify, a lower court‟s purported exercise of a power to reconsiderbinding authority from a higher court.