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

Page: 34appropriate evidence and, where necessary, make credibility findings andfindings of fact. In doing so, the court of first instance creates the necessaryrecord should the Supreme Court decide that it will reconsider its prior decision.[77] The application judge relied on Wakeford v. Attorney General of Canada(2001), 81 C.R.R. (2d) 342 (Ont. S.C.), affirmed (2001), 156 O.A.C. 385, leave toappeal to S.C.C. refused, [2002] S.C.C.A. No. 72. In that case, Swinton J. wasfaced with a motion to dismiss a claim on the basis that the issue had beendecided by the Supreme Court in Rodriguez, the assisted suicide case. Sherecognized that the Supreme Court could reconsider its prior decisions based onnew evidence. She also recognized that claims that sought to reverse priordecisions of the Supreme Court should not necessarily fail at the pleadingsstage. She indicated, at para. 14, that in such a case the plaintiff must present“some indication – either in the facts pleaded or in the decisions of the SupremeCourt – that the prior decision may be open to reconsideration.”[78] Justice Swinton ultimately struck the claim, holding that the plaintiff had notprovided any basis upon which Rodriguez should be reconsidered. She made itclear, at para. 20, that had the plaintiff made out the case for reconsideration,that reconsideration would have occurred in the Supreme Court and not in thetrial court.