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Declarations

1. General
2. Test

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1. General

Declarations are a relatively unusual, but fundamental, legal remedy. They are sometimes called 'declarations of right', and that describes them well - affirmations of the rights of parties which can have great practical impact on their future.

2. Test

. Daniels v. Canada (Indian Affairs and Northern Development)

In Daniels v. Canada (Indian Affairs and Northern Development) (SCC, 2016) the Supreme Court of Canada stated the basic criteria for issuing a declaration:
[11] This Court most recently restated the applicable test for when a declaration should be granted in Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44. The party seeking relief must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution. A declaration can only be granted if it will have practical utility, that is, if it will settle a “live controversy” between the parties: see also Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.
. S.A. v. Metro Vancouver Housing Corp.

In S.A. v. Metro Vancouver Housing Corp. (SCC, 2019) the court confirmed the criteria for granting a declaration:
(1) Declaratory Relief

[60] S.A. requests, among other things, that this Court issue a declaration that the assets in the Trust are not hers for the purpose of the Assistance Application. Declaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought (Ewert v. Canada, 2018 SCC 30 (CanLII), at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (CanLII), [2016] 1 S.C.R. 99, at para. 11; Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44, at para. 46).

[61] In my view, all of these criteria are met in this case. As I explained above (in Part A of the analysis), the interpretation of the word “asset” as it is used in the Assistance Application is a justiciable issue that falls within the jurisdiction of this Court. Moreover, that issue is real, and is one in which both parties clearly have a genuine interest. I am therefore unable to accept MVHC’s submission that no legal purpose would be served by the declaratory relief sought by S.A. In these circumstances, a declaration that the assets in the Trust cannot be treated as S.A.’s assets for the purpose of the Rental Assistance Program would clearly have practical utility, as it would settle a “live controversy” between the parties (see: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 457; Daniels, at paras. 11-12; and Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 833). Accordingly, I would declare that S.A. has a right to have her application for a rent subsidy considered by MVHC in accordance with the terms of the Assistance Application, and that her interest in the Trust is not an “asset” for the purpose of such a determination.

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