What is the test for a judge to depart from the judgment of another judge of the same court?

British Columbia, Canada


The following excerpt is from Tallarico v. Workers' Compensation Appeal Tribunal, 2009 BCSC 49 (CanLII):

As restated in McCready v. Nanaimo (City), 2005 BCSC 762 at paras. 46-47, 46 B.C.L.R. (4th) 331, a trial judge should depart from the judgment of another judge of the same court only in the following circumstances: (a) subsequent decisions have effected the validity of the impugned judgment; (b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without the opportunity to fully consult authorities; or (d) the judgment was palpably wrong and based on a patent error of law or fact.

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