What is meant in Ontario and some other Canadian jurisdictions by the ‘inconsistent use’
test? Based on the case law presented in the readings, how did the test develop and how
has its application been restricted in Ontario? Noting that Ontario is only used as an
example, how would you explain the relevance of the test in Nova Scotia, in New Brunswick,
in Alberta and in British Columbia?
The 'inconsistent use' test refers to a legal principle used in Ontario and other Canadian jurisdictions to determine whether a particular doctrine or law within the same jurisdiction has been applied inconsistently. It is used to assess whether there has been a pattern of decision-making that is contradictory or conflicting.
The development of the 'inconsistent use' test can be traced back to various case laws in Ontario. One important case that contributed to its establishment is the Attorney General of Ontario v. Waldron, which involved a challenge to a provincial law on the basis of inconsistency with previous decisions. This case led to the recognition that consistency in decision-making is an important principle for maintaining the coherence and predictability of the legal system.
In Ontario, the application of the test has been restricted to some extent through various court decisions. For example, in R v. Marshall, the Ontario Court of Appeal held that the inconsistent use test should be narrowly applied only in cases where the inconsistency is so substantial that it undermines the fundamental principles of the legal system. This restriction ensures that the test is not used to challenge every small deviation in judicial decision-making but only when the inconsistency is substantial enough to warrant a reconsideration of the law.
The relevance of the 'inconsistent use' test can be explained in other Canadian jurisdictions like Nova Scotia, New Brunswick, Alberta, and British Columbia. While Ontario is used as an example, the test is likely applicable in these jurisdictions as well. The principle of consistency in decision-making is fundamental to the overall fairness and predictability of the legal system, and as such, it is likely that other provinces would also apply the 'inconsistent use' test to ensure uniformity in their legal doctrines. However, it is important to note that the specific application and restrictions of the test may vary depending on the particular case law and judicial interpretation in each province.