When is a rule not the law? A Note on Tan and Comity in the Federal Court of Appeal
Last month, the Federal Court of Appeal issued its latest decision on judicial comity, Tan v. Canada (Attorney General). Tan is noteworthy for being just the third decision of the Federal Court of Appeal decided by a panel of five judges, and for expressly overruling an earlier Federal Court of Appeal decision, Forest v. Canada (Attorney General).
Tan, who had no citizenship or immigration status in Canada, was convicted of murder and sentenced to imprisonment at the Mission Institute, a federal correctional facility. After commiting his crime as a visitor, he fled Canada but was extradited back to face charges. He was ordered to be deported for serious criminality, which was stayed by statute for the duration of his custodial sentence.
Tan, a Buddhist, complained to the Canadian Human Rights Commission (the “Commission”) that the Mission Institution discriminated against him based on religious grounds by refusing to provide him access to a Buddhist chaplain.
The issue was whether Tan was “lawfully present in Canada” within the meaning of paragraph 40(5)(a) and subsection 40(6) of the Canadian Human Rights Act (“CHRA”). If not, the Commission could not consider his complaint. Those provisions read:
40. (5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;…
(6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the commission shall refer to question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant. [Emphasis added]
The Commission referred the issue of Tan’s status to the Minister of Citizenship and Immigration, who responded that Tan “did not have any status as a temporary resident, permanent resident or citizen of Canada”.
In Forest, the Minister’s advice that a complainant lacked immigration status meant the complainant was not “lawfully present in Canada”. Applying Forest, the Commission dismissed Tan’s complaint. The Federal Court dismissed Tan’s application for judicial review.
At the Federal Court of Appeal, both sides argued that Forest was wrongly decided and that Tan was lawfully present at the time of the alleged discrimination. The Federal Court of Appeal agreed and overruled its prior decision. The majority held that the only reasonable conclusion was that Tan was “lawfully present in Canada” and remitted the merits of the complaint to the Commission. The dissent would also have remitted the question of Tan’s lawful presence.
The decision squarely raised the issue of comity at the Federal Court of Appeal.
Comity and Stare Decisis in the Federal Court of Appeal
The doctrine of comity seeks to prevent the same legal issue from being decided differently at different times by the same court. Underlying comity is the principle that when judges speak, “they do so not for themselves, but for the court.” The court, having already pronounced on a legal issue, is driven by comity to make consistent legal holdings in future cases.
Comity has been applied in the Federal Courts system for over fifty years. As the Federal Court of Appeal has explained, comity is related to stare decisis, a bedrock common law doctrine that binds courts to the legal holdings of higher courts within the judicial hierarchy. Comity is sometimes called a “modified form” of stare decisis, which applies horizontally, binding a particular Court to its own prior decisions, as opposed to vertically between court levels.
The assumption underlying both stare decisis and comity is the presumption that – at least as far as courts are concerned – there can only be one correct answer to a question of law. Because of this presumption, both doctrines strive to promote certainty in the law (which allows it to be knowable by the public) and consistency of treatment (which vindicates public expectations). In turn, these promote institutional legitimacy and public confidence in the courts, and the goal of decreasing the overall volume of litigation as legal issues are resolved.
However, there are important differences between comity and stare decisis. First, unlike stare decisis, each court is entitled to decide for itself how comity applies to its own decisions. By contrast, stare decisis applies as a matter of law to all courts except apex courts, like the Supreme Court of Canada.
Second, unlike stare decisis, on appeal “[t]here is no legal sanction for a judge’s failure to abide by comity”. By contrast, a failure to observe stare decisis is reversible on appeal because binding precedent must be obeyed.
When called upon to overrule itself, the Federal Court of Appeal applies one of three tests:
- The earlier decision is “manifestly wrong” because it “overlooked a relevant statutory provision, or a case that ought to have been followed” (known as the “Miller test”).
- The earlier decision has been “overtaken by legislative changes or by subsequent decisions of the Supreme Court of Canada”.
- There are serious and compelling reasons to overturn the earlier decision, and the importance of correctness outweighs the need for certainty (the “serious and compelling reasons test”).
Application to Tan
In Tan, the five-judge panel applied the “serious and compelling reasons test” and overturned Forest. Read correctly, paragraph 40(5)(a) and subsection 40(6) required the Commission (not the Minister) to decide the lawfulness of Tan’s presence in Canada. Under subsection 40(6), the Commission was only allowed to refer a status question to the appropriate Minister if the information provided by the complainant was insufficient or incredible. Once the Commission has the Minister’s advice, the Commission had to decide the issue for itself based on all the relevant information. The legal issue arose rarely and the circumstances favoured correctness over certainty.
The majority held that there was no need to remit the issue to the Commission because the only reasonable outcome was that Tan was lawfully present at the time of the alleged discrimination. Tan entered Canada lawfully to face charges, was lawfully sentenced to custodial sentence in Canada, remained lawfully imprisoned in Canada, and his deportation from Canada was lawfully stayed. It would have been absurd for Tan to be barred from making a complaint, while a lawful but temporary visitor would have standing. Accordingly, the court allowed the appeal and remitted the merits of Tan’s complaint to the Commission.
A number of comments can be made about the court’s description of judicial comity and the circumstances in which it will overrule a prior decision.
First, although they are described as such, neither the Miller test nor the “overtaken by legislative changes or by subsequent decisions of the Supreme Court of Canada” test is, strictly speaking, related to judicial comity. Rather, each is rooted in the binding hierarchy of laws and stare decisis. Legislation and decisions of the Supreme Court must be followed, whether or not the Federal Court of Appeal has previously weighed in. Miller, for its part, deals with cases and legislation pre-existing the the impugned decision. The “overtaken” test deals with cases and legislation arising after the impugned decision. In either instance, the Federal Court of Appeal is bound by the legislation or the case. Only the “serious and compelling reasons test” truly deals with judicial comity.
Second, any “test” purporting to establish conditions for when a court will overrule itself is no more binding on the court than the decision it is being asked to overrule. There is no strictly binding legal test for a court to disregard comity. Put differently, the comity test itself is observed as a matter of comity. And as the Federal Court of Appeal has explained, “[t]here is no legal sanction for a judge’s failure to abide by comity”. Accordingly, any decision purporting to establish a comity test is better understood as a statement of court policy, not law.
Third, underpinning the doctrine of comity is a tension between two constitutional imperatives both rooted in the preamble to the Constitution Act, 1867: judicial independence, on the one hand, and the rule of law, on the other. Judicial independence recognizes that each decision is the sole prerogative of the sitting judge and compels judges to decide matters in accordance with their own personal views of what the law is. This is equally true for panels of judges, in which each judge is entitled to render his or her own opinion free from interference by co-panellists. On the other hand, the rule of law recognizes “that the public relies on [courts’] disciplined ability to respect precedent.” As the supreme law of Canada, both imperatives must be balanced by the Federal Court of Appeal in deciding whether to overrule its prior authority.
Tan is the Federal Court of Appeal’s first explicit recognition of the rule of law concern. To date, no Federal Court of Appeal decision has explicitly recognized the link to judicial independence.
Tan v. Canada (Attorney General), 2018 FCA 186:
- Majority Reasons per Rennie J.A. (Near and Zinn JJ.A. concurring) Paragraphs 1-122;
- Dissenting Reasons per Pelletier J.A. (Woods J.A. concurring): Paragraphs123-41.Date of Decision: October 18, 2018
Date of Decision: October 18, 2018
 Tan v. Canada (Attorney General), 2018 FCA 186 (“Tan”).
 The Federal Court of Appeal also convened five-judge panels in Canada v. Aqua-Gem Investments Ltd. (C.A.),  2 F.C. 425 (C.A.), and Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215.
 Forest v. Canada (Attorney General), 2006 FCA 400 (“Forest”).
 Tan, supra note 1, at paras. 50-54, citing Forest, supra note 2, at para. 9 (“[Forest’s] custody is lawful because he is unlawfully present in Canada.”).
 Per Justice Rennie (Justices Near and Zinn, sitting ex officio, concurring).
 Per Justice Pelletier (Justice Woods concurring).
 Apotex Inc. v. Allergan Inc., 2012 FCA 308 at para. 43 (“Allergan”), citing Glaxo Group Ltd. v. Canada (Minister of Health and Welfare) (1995), 64 C.P.R. (3d) 65 at 67-68. See, e.g., Ref re Remuneration of Judges of the Prov. Court of P.E.I.,  3 SCR 3 at para. 105 (“Provincial Judges Reference”).
 Tan, supra note 1, at para. 24 See also Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA 267 at para. 2 (“Eli Lilly”).
 See, e.g., Canada Steamship Lines Ltd. v. M.N.R., 1966 CarswellNat 278 at para. 10,  Ex. Cr. 972 at 976 (per Jackett P.).
 Allergan, supra note 7, at para. 43.
 Ibid at para. 46.
 Allergan, supra note 7, at para. 48.
 Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 250 at para. 115 (“Pfizer”).
 Tan, supra note 1, at para. 31; Miller v. Canada (Attorney General), 2002 FCA 370 at para. 10. See also Janssen Pharmaceutica Inc. v. Apotex Inc., 1997 CarswellNat 202 at para. 2 (Fed. C.A.).
 Tan, supra note 1, at para. 31; Canada (Public Safety and Emergency Preparedness) v. J.P., 2013 FCA 262 at para. 72(b) (“J.P.”).
 Tan, supra note 1, at para. 31; J.P., supra note 16, at para. 72(c).
 Tan, supra note 1, at paras. 33-36, citing R. v. Craig, 2009 SCC 23; Teva, supra note 12; J.P., supra note 16; Nathanson, Schachter & Thompson v. Inmet Mining Corp., 2009 BCCA 385 at para. 62; and David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co., 2005 CanLII 21093 (Ont. C.A.).
 Tan, supra note 1, at paras. 88-91, 99.
 Ibid at paras. 98-99.
 Ibid at paras. 37, 117.
 Ibid at paras. 108, 114.
 Whether the prior authority is “manifestly wrong” because the prior panel overlooked a relevant statutory provision, or a case that ought to have been followed”.
 Whether the prior has been overtaken by legislative changes or by subsequent decisions of the Supreme Court of Canada.
 See Eli Lilly, supra note 8, at para. 9 (“If the case that ought to have been followed is a decision of the Supreme Court, the doctrine of stare decisis would require us to follow the Supreme Court quite apart from any dicta in Miller”).
 Pfizer, supra note 14, at para. 115.
 Provincial Judges Reference, supra note 7, at paras. 83-109.
 Re Manitoba Language Rights,  1 SCR 721 at 750g. The rule of law is explicitly mentioned in the preamble to the Constitution Act, 1982: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”
 Charles G. Geyh & Emily F. Van Tassel, “The Independence of the Judicial Branch in the New Republic” (1998) 74 Chi.-Kent L. Rev. 31 at 31.
 Teva at para. 65.
 Tan, supra note 1, at para. 25. See also Teva, supra note 12, at para. 138 (per Côté and Rowe JJ. dissenting, McLachlin C.J. and Wagner J. concurring).