Decision Released: Phoenix Bulk Carriers v Kremikovtzi Trade

On February 12, I wrote about the hearing of Phoenix Bulk Carriers Ltd v Kremikovtzi Trade, a case in which the Federal Court of Appeal, while adhering to its own precedent, openly invited the Supreme Court of Canada (“SCC”) to reverse its decision. Justice Nadon outlined the reasons why he felt a different result should be achieved, but indicated that he did not feel this to be the type of case in which it was appropriate for the Federal Court of Appeal to overrule its own precedent.

In a judgment released on Friday, the SCC reversed the FCA decision (see 2007 SCC 13), noting that it agreed with the reasons given by Justice Nadon as to why the earlier case was wrongly decided. The SCC did not take the opportunity to discuss the situations in which it is appropriate for a lower court to reverse a precedent.