Can the per incuriam exception be extended to include a case where the only indication that Homer nodded is that one thinks the word cannot bear?

Manitoba, Canada

The following excerpt is from John Deere Ltd. v. Firdale Farms Ltd., 1987 CanLII 5348 (MB CA):

What we are concerned with in this case is a particular application of the "per incuriam" exception. Scarman L.J. (as he then was) spoke of it in Farrell v. Alexander, [1976] 1 All E.R. 129, in these terms (at p. 145): Can one, however, extend the "per incuriam" exception so as to include a case where the only indication that "Homer nodded" is that one thinks the court put on the words of the statute a meaning which they cannot bear, and one which leads to a result that appears to be contrary to the purpose of the statute? For myself I would agree with Lord Denning MR that one can — in a proper case. But to do so we must be prepared to say not merely that we prefer another construction to that favoured by the court whose decision is under challenge; we must be able to demonstrate that the words of the statute are capable of only one meaning and that the meaning attributed to them by the previous decision is an impossibility. Mistake, not a difference of opinion, is the criterion.

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