I agree with the Cross and Harris view that
multiple sufficient reasons each form part of the ratio (cf. the dissent of the
then Leggatt LJ in R (Youngsam) [2019] EWCA Civ 229), although arguably
the conclusion that dishonesty is not part of the offence of cheating means
that a finding of dishonesty may not be in itself sufficient: it may be
possible to act dishonestly without cheating – see Ivey at [45] to [46].
Regardless, I don’t think the fact that a
court has misunderstood an earlier decision affects whether its conclusion is
ratio. That would go far beyond per incuriam (which the English courts
themselves have tried to restrict to being a function of the Court of Appeal).
That would lead to anarchy whereby lower courts start looking for errors in
higher court judgments in order to depart from them – Lipkin Gorman on Taylor
v Plummer anyone?
(Apologies for hijacking this Canadian law
thread with English cases!)
Matthew Hoyle
Barrister
One Essex Court
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Barton and Booth was, imo, wrong about the
ratio of Ivey.
If an appellate court gives two (or more)
reasons, each of which is sufficient for the result, but which means that as a
result neither is necessary, each is the ratio and each is binding on lower
courts.
So, if in Ivey the court had said “the
defendant is not dishonest” we might then postulate “the question of whether
dishonesty for this offence did not therefore arise.”
What they actually said was
- The defendant is not
dishonest
- This offence doesn’t
require dishonesty
We can’t, as a matter of logic, say one of
those answers means the other doesn’t arise. Each is sufficient on their own.
The question then arises: can the court
itself then stipulate which of the two reasons it thinks takes priority,
rendering the other redundant?
I don’t think it can. It can only make one of
the reasons redundant by not giving it (eg by refusing to determine whether the
offence requires dishonesty).
So, the court in Barton And Booth was bound
by what Ivey said about dishonesty.
Which then gives rise to an interesting
question of whether what they themselves say at [104] is ratio or obiter.
As far as England goes, the relevant line of
authorities is complicated because it arguably interacts with a different line
of cases on the status of the Privy Council, currently embodied in Willers v
Joyce [2016] UKSC 44.
Putting it simply, it starts with a case
called Ivey [2017] UKSC 67, which concerned contractual entitlement to payment from
a casino. The claimant was not entitled to payment because he had used ‘edge
sorting’ in a game of baccarat and therefore committed the offence of cheating
under the Gambling Act 2005. The claimant alleged he was not dishonest under
the so called ‘Ghosh’ test, a decision of the Court of Appeal ([1982] QB
1053) which required that a defendant charged with deception under the Theft
Act 1968 be proved to have subjectively known he was acting dishonestly.
The Supreme Court in Ivey held that a person
can be guilty of cheating without any dishonesty. Therefore, the question of
whether dishonesty included a subjective element was not a question which
arose. Nevertheless, the Supreme Court took the view that Ghosh was wrong.
In Barton and Booth [2020] EWCA Crim
575, the trial judge had directed the jury on dishonesty by reference to Ivey
rather than Ghosh. The jury convicted. The CA accepted that the SC’s
statement in Ivey was obiter (at [93]) but nevertheless held – based on
the way in which the Privy Council had asserted a right to change the law of
England by the ratio of its decision on a foreign law – (at [104]):
We
conclude that where the Supreme Court itself directs that an otherwise binding
decision of the Court of Appeal should no longer be followed and proposes an
alternative test that it says must be adopted, the Court of Appeal is bound to
follow what amounts to a direction from the Supreme Court even though it is
strictly obiter. To that limited extent the ordinary rules of precedent (or
stare decisis) have been modified. We emphasise that this limited modification
is confined to cases in which all the judges in the appeal in question in the
Supreme Court agree that to be the effect of the decision. Such was a necessary
condition before adjusting the rules of precedent accepted by this court in
James in relation to the Privy Council. Had the minority of the Privy Council
in Holley not agreed that the effect of the judgment was to state definitively
the law in England, it would not have been accepted as such by this court. The
same approach is necessary here because it forms the foundation for the
conclusion that the result is considered by the Supreme Court to be definitive,
with the consequence that a further appeal would be a foregone conclusion, and
binding on lower courts.
My own view is that this is shocking, because
it amounts to a conclusion that the UKSC can by fiat, obiter, “direction”
criminalise a person who, based upon the ratio of a binding decision of the
Court of Appeal (or it would seem, UKHL/SC) is entitled to be acquitted. It is
an even more egregious version of what Professor Mirfield ((2017) 133 LQR 1, 5)
has labelled the ”dinner party theory of precedent”: as long as five supreme
court judges are in a room together, they can change the law of England to whatever
they want.
Re Rob’s point, I generally agree that too
much focus on public law can distort the appointments process and exclude legal
talent from other areas.
That being said, the justices of the UKSC are
kept humble by having to wear their Privy Council hats and having to do a large
number of appeals on run of the mill disputes that would never get permission
to appeal to the SC if they arose in England. Indeed, the UKPC recently
expanded the scope of appeals as of right (Rubis Bahamas Ltd v Russell
[2025] UKPC 13), and has abandoned its practice of striking out such appeals
where they don’t appear to raise real prospects of success.
Matthew Hoyle
Barrister
One Essex Court
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I
believe the leading case on the effect of obiter is R v Henry 2005
SCC 76 where the Court stated
The issue in each case, to return to the Halsbury
question, is what did the case decide? Beyond the ratio decidendi which,
as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the
legal point decided by this Court may be as narrow as the jury instruction at
issue in Sellars or as broad as the Oakes test.
All obiter do not have, and are not intended to have, the same
weight. The weight decreases as one moves from the dispositive ratio
decidendi to a wider circle of analysis which is obviously intended
for guidance and which should be accepted as authoritative. Beyond that,
there will be commentary, examples or exposition that are intended to be
helpful and may be found to be persuasive, but are certainly not “binding” in
the sense the Sellars principle in its most exaggerated form
would have it. The objective of the exercise is to promote certainty in
the law, not to stifle its growth and creativity. The notion that each
phrase in a judgment of this Court should be treated as if enacted in a statute
is not supported by the cases and is inconsistent with the basic fundamental
principle that the common law develops by experience.
This
goes beyond the ratio, but at least it is relatively restrained in restricting
binding effect to obiter "obviously intended for guidance." The FCA,
at least, seems to go beyond this in sometimes treating passing remarks as
obiter. For example, the prohibition on patenting of methods of medical
treatment, which is currently on its way to the SCC, rests entirely on this
passage in Tennessee Eastman [1974]
SCR 111: May these therapeutic data be claimed in themselves as a separate
invention consisting in a method of treatment embodying the use of the new
drug? I do not think so, and it appears to me that s.41 definitely indicates
that it is not so." The rest of the turns entirely on s 41, since
repealed, and the FCA developed its prohibition on patenting of methods of
medical treatment from the phrase "I do not think so." Not the fault
of the SCC, I suppose.
Resolving disputes is still the primary and most
fundamental task of the judiciary. But for some time now, it has been
recognized that the matter is not so simple. In the course of resolving
disputes, common law judges interpreted and inevitably, incrementally, with the
aid of the doctrine of precedent or stare
decisis, changed the law. The common law thus came to recognize
that while dispute resolution was the primary task of the judge, the judge
played a secondary role of lawmaker, or at least, law-developer. In the latter
part of the twentieth century, the lawmaking role of the judge has dramatically
expanded. Judicial lawmaking is no longer always confined to small, incremental
changes. Increasingly, it is invading the domain of social policy, once
perceived as the exclusive right of Parliament and the legislatures.
This Canadian
colleague doesn’t know, but would really like to. For the reasons stated
by Matthew, a norm (?) to the effect that the SCC’s obiter dicta ought to be
treated like their ratio would be deeply problematic. The whole point
(and beauty) of the ratio/dicta distinction is that it reserves binding force
to the parts of judgments that “matter”, i.e. that have real and immediate
effect on the lives of the people actually before the court, the rest therefore
falling outside the realm of adjudication proper. Eliminating that
distinction does turn judges into legislators, despite their lacking electoral
legitimacy. Anybody else that could point out a case to that effect?
As for the role of
apex courts in confederate nations, it is worth noting that Quebec’s difference
in matters of private law did result in the Quebec Court of Appeal being, at a
certain time, treated as the de facto apex court in matters of Quebec private
law.
Best,
Catherine
I mean it's 50/50 whether the SCC
hearing more private law cases would be a good or a bad thing for the
development of private law in Canada.
Re intermediate appellate courts
being able to decide how they think the SCC would, this was also famously
suggested (or at least something similar) by Denning in England and McHugh in
Aus, the problem is that it would make the law significantly more uncertain.
It's fairly clear that judges would just use that as an escape route to
overturn any decisions they didn't like, thereby leaving the law in flux until
the SCC undid their decisions (or not). Of course the SCC wouldn't, in any
event, be able to hear all such cases. All that said, I'm not sure Canadian law
is suffering from having too many old cases applied, or a lack of judicial
creativity, instead I think it has the opposite problem.
Also it's worth noting that (I
think?) obiter dicta of the SCC are also binding, so that probably loosens the
state decisis straightjacket somewhat (as it allows the SCC to influence cases
even without deciding x or y in the ratio).
Ah, in fact, hasn't the SCC said
that old precedents don't need to be applied if there are changed social
circumstances etc? Can't remember the exact case, but I'm sure Canadian
colleagues would know 😅 in any event that feeds into the
uncertainty point...
Some comments on the subject of
"which cases does the SCC hear":
1. As David said, the courts of appeal can grant leave per s 37 of the Supreme
Court Act, but do so very rarely. The last time I've heard of this
happening was 20 years ago, in HL v Canada (Attorney General), 2005 SCC 25, (a case about whether the appellate standard
of review in Saskatchewan was the same as in other provinces, because the
statute was different). Supposedly it "fell into disuse because courts of
appeal decided that [the SCC] should determine its own workload": Richter
& Partners Inc v Ernst & Young, [1997] 2 SCR 5 at para 4.
2. As Norman said, the courts sometimes signal to the SCC that they should hear
the case without explicitly invoking s 37 of the Supreme Court Act. As a
further example to those Norman gave, the SCC granted leave in Chandos
Construction Ltd v Deloitte Restructuring Inc, 2020 SCC 25 after the dissent opened with "This case
presents challenging contract and bankruptcy law issues of national
importance." (the case concerned the interaction of the anti-deprivation
rule in bankruptcy with a contractual provision that triggered upon bankruptcy;
the SCC ultimately dismissed the appeal 8-1). Sitting 5 at the CA on a case is
also a significant signal that the case is of importance to the CA and may also
be of importance to the SCC.
3. On the merits of whether private law should be heard more, the division of
powers makes a material differences between Canada and the UK on the relative
importance nationally between public law and private law:
- Many of the most important public law areas (constitutional, criminal) are
federal or affect both federal and provincial governments (administrative,
aboriginal).
- By contrast, purely common law private law generally will not affect
the 23% of the population in Quebec.
- Interesting questions that arise due to the interaction between private
common law and statutes are often province-specific, since the statutes that
create the interaction are often provincial. (Provinces have authority over
"property and civil rights in the province") While the provinces do
have mechanisms to harmonize their laws, these are not often used. (Section 94
of the Constitution Act, 1867 allows provinces to hand this power over
to the feds to make laws on property and civil rights, but it has never been
invoked. And less dramatically, provinces tend not to just all adopt the same
legislation. The Uniform Law Conference of Canada is a body meant to help with
that, but if one looks at their table of which laws are implemented, one sees
many voids [pdf].)
4. On less merits-based factors, one might note that none of the current bench
of the SCC had a practice that focused on private common law or even
civil/commercial litigation in common law Canada. Going through them all:
- Chief Justice Wagner and Côté and Kasirer JJ all practised in Quebec;
- Justice Karakatsanis was originally known for her work as a civil servant,
running tribunals and eventually becoming head of the Ontario Public Service;
- Justice Rowe practised international law and eventually became head of the
Newfoundland and Labrador Public Service;
- Justice Martin had taught a variety of private law subjects when a professor,
but her litigation career was focused on criminal and constitutional law;
- Justice Jamal's private practice days included commercial litigation but I
understand he was known for his constitutional and public law work;
- Justice O'Bonsawin's prior work focused on the mental health system, labour
and employment, human rights, privacy, indigenous law, and a slice of criminal
law;
- Justice Moreau practised "primarily in criminal law, constitutional law,
and civil litigation".
Moreover, all of the English-Canada judges had some level of criminal
experience from their time on the trial court or (save for Justices O'Bonsawin
and Moreau) on the Court of Appeal.
If one models the justices as being more likely to give leave to cases they
would have thought were important before being elevated to the Supreme Court,
it seems not a surprise that private law cases might have a harder time getting
leave than public law cases.
5. In response to Matt's musing that the dearth of appeals to the SCC may
be because the UKSC sits 5 and the SCC tends to sit 9 on appeals that are
not criminal as of right appeals: at least in recent years, it has not seemed
like the SCC has been "at capacity". The caseload of the SCC has been
higher historically than it is now.
Peter
On 2025-07-07 6:39 p.m., Frederick Wilmot-Smith wrote:
This might be matt's point but I'm
not sure I see what the issue is.
Is it that the SCC wrongly thinks
private law cases don't raise issues of national importance?
Or is it that that are right in
their analysis of importance (ie the rules aren't nationally important) but are
applying the wrong standard for PTA?
Or something else? (Jason's proposal
seems to come from a diagnosis that the rule is right and so is the application
but that the results are bad so intermediate courts should get some leeway to
overrule scc.)
On the substance, I agree with Matt
and Jordan: to an English lawyer’s eyes, the application confuses debt with
damages. The pta memo (which is on the account website sam linked to) tries to
answer this at para 35 (discussing the law in BC, which seems to have got it
exactly right; as indeed Laskin J seems to have got the position right in
Highway Properties). The appellants seem driven to say that actions in debt are
confined to loans, which is perhaps not the strongest argument I’ve ever seen.
It is a little
surprising to me that the appellants do not seem to mention White & Carter
and Reid’s weird exception. Wouldn’t that be helpful to them? The answer might
be that another problem would emerge if they did: from a quick skim, the lease can be sublet. The
interest in keeping the lease open may therefore be the same reason the lessee
doesn’t want to sublet? Whatever the position: I am not sure I understand what
injustice the lessee thinks it is suffering.
Sent from my mobile device
Sometimes the FCA just
says "This is an issue that should really be looked at by the SCC."
For example, in Cobalt v Bayer 2015 FCA 116 [101] the FCA said that
the current law on the issue of patentability of methods of medical treatment
was unsatisfactory and "calls for full consideration by this Court or the
Supreme Court in a case where the issue is squarely raised on the facts."
It reiterated this in Hospira v Kennedy Trust 2020 FCA 30 [53], though
again saying that case was not appropriate as the issue was not squarely raised
on the facts. The SCC has since granted leave in another case raising the
issue, Janssen v Pharmascience 2024 FCA 23, in which the successful
applicants for leave emphasized these statements.
One solution would be to empower the
Courts of Appeal to decide cases as they legitimately believed they would be
decided by the modern SCC in light of changed doctrinal position that the court
finds itself in. I believe that that rule would be similar to the rule the US
federal courts use on matters of state common law (but I'm happy to be
corrected by our American friends).
I do see
the problem there (although as I say, I’m not sure I see here a legal issue the
court can or should solve!). It is rate here for the CA to grant permission to
appeal to the UKSC, but I suppose we are lucky in the UK to have a Supreme
Court which is relatively keen to grant permission on private law matters
(although, as they tend to sit as five judges rather than nine that does allow
them, as UKSC and UKPC, to hear twice as many cases as the SCC does based on
recent trends).
Matthew
Hoyle
Barrister
One
Essex Court
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In regard to
precedent, in Canada lower courts cannot give permission to appeal, only
the SCC (or statute) can, and the SCC does so only if the case raises issues of
national importance.
What do you do then with
"old" precedents in areas of Law, like private law, where the SCC
doesn't often give leave?
Thanks
Sam, interesting for a number of reasons:
- To English eyes at least, there is a prior
question here: why is this a question of mitigation at all? As long as the
landlord continues to provide exclusive possession of the property to the
tenant, then they should be paid the agreed sum (i.e. rent) for as long as
they are meeting the condition for payment. There is no question of
mitigating a debt, because it is simply inconsistent with the nature of
the remedy, which is unconnected to loss and instead involves the
insistence on a primary right.
- It is only if the law requires the landlord to
accept repudiation, and give up their ability to earn the price, that the
claim becomes one for damages, which we here find in the “legitimate
interest” case law from White and Carter v McGregor. But that
doesn’t seem to the way its being analysed here.
- Looking at it that way, the question is not
whether commercial landlords are an exception to the mitigation rule, but
whether the law requires them to accept repudiation. I don’t think the law
is incoherent in saying that it doesn’t because of the nature of a lease
as a grant of a proprietary right at the outset. It could lead to odd
situations: for example, if one tenant paid an upfront premium in exchange
for a grant of a ten-year lease, while the other agrees to pay
periodically. It can’t be that the party paying a premium get his money
back because half-way through he decides he doesn’t want the property,
surely?
- This really demonstrates why the language of
“duty” to mitigate is dangerous. Mitigation in English law is simply a
limit on the damages recoverable. It is not a duty in any sense: it isn’t
even a ‘requirement’ or ‘pre-condition’, because a claimant who does
nothing to mitigate will still be able to recover damages as if they had
mitigated (which may in some cases be nothing, of course)
- If it is conceived as a ‘duty’, it is easy to see
why one can start applying that to situations where it really ought not to
be applied. A freestanding duty to mitigate could be imposed on a creditor
who doesn’t accept repudiation and insists on payment.
As to
precedent, isn’t it quite literally the point of having a sophisticated system
of stare decisis and doctrines of ratio and obiter to decide when a lower court
can change/develop the law, and when it can’t? If the lower court feels bound
by the decision of the earlier court even though it would wish to decide the
matter the other way, then surely the right approach is to say that is the
reason for the judgment and to grant permission to appeal?
Matthew
Hoyle
Barrister
One
Essex Court
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ODGers may be interested in
a case on which the Supreme Court of Canada recently granted leave, which will
revisit whether the doctrine of mitigation applies to the repudiation of
commercial leases.
The appellant tenant
challenges a common law doctrine that purports to shield landlords in the
commercial leasing context from the general principle of reasonable mitigation.
From the appellant's leave application:
1. In Canada, plaintiffs owe a duty to mitigate damages. This is a
foundational principle that has been a part of Anglo-Canadian law for at least
a century, requiring a plaintiff to act like a “reasonable and prudent” person
to avoid losses caused by a wrongdoing. In Ontario and British Columbia, the
Courts of Appeal have said that there is one class of plaintiff exempt from
this doctrine: commercial landlords. The Quebec courts disagree: there,
commercial landlords do have a duty to mitigate, in the face of a repudiation
by a tenant. American courts, faced with the exact same issue, have
consistently changed the common law to impose a duty to mitigate on landlords.
2. In this case, the Applicant, Aphria Inc. (the “Tenant”), signed a
ten-year lease. Early into its term, as a result of a business combination, it
did not have a need for two duplicate offices. It therefore repudiated the
applicable lease. It made repeated, good faith efforts to send interested
tenants to the Respondents (the “Landlords”). The Landlords refused to meet
with them, refused to take any steps to mitigate, refused to accept the
repudiation, and made clear they preferred to sue the Tenant every two years
for past rent. The Landlords are not incapable of mitigating, nor do they say
it is too onerous to mitigate. They simply refuse to mitigate, because they say
the law does not require them to do so.
3. This anomalous situation is not a product of sound law, logic, or
equity. It is a product of history, where antiquated property law concepts of a
lease being a “conveyance”, led to that result. And two lines of obiter dicta
from Justice Laskin, as he then was, on a five-member bench of this Court in
the 1971 decision, Highway Properties v Kelly, Douglas & Co., have
been used by lower courts as a jurisprudential straightjacket, fossilizing the
common law to a doctrine that predated the law of contract in the
Commonwealth.
More generally, the appeal
invites the SCC to clarify the scope of judicial law-making power of lower
courts in private law matters. From the final section of the leave application:
50. Finally, an issue that transcends the interests of these parties,
and beyond the commercial leasehold context, is the issue of the development of
the common law. As can be seen from the decisions below, appellate courts
continue to struggle with the extent to which they are permitted to develop the
common law, even to be consistent with other Supreme Court decisions. While the
Motions Judge below followed the Canada v Craig approach of offering
“comments” on the “problematic nature” of the precedent, the Court of Appeal
simply refused to engage at all (not commenting on whether he was right or
wrong on these points), saying nothing more than if the law is to be changed,
it is for the Supreme Court to do it. This approach is unsatisfactory, in that
it provides no appellate commentary for the Supreme Court to engage on the
issue, leaving it not as the court of last resort, but the court of only resort
and essentially, of first instance.
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