In Atwood v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal from a JR, which was earlier dismissed because "the appellant had impermissibly altered the nature of his judicial review application because he abandoned all the remedies sought in the application and instead sought a declaration ... which fundamentally altered the nature of the application."
Here the court illustrates the importance of a Notice of Application being accurate (and thus the need to amend it if the remedy sought is changed):
[3] The appellant was told in paragraph 26 of an earlier Federal Court decision in Atwood v. Attorney General of Canada, 2023 FC 959 (per Sadrehashemi J.) that if he wished to seek a declaration regarding the application of the open court principle to the RCMP grievance process, a request to amend his notice of application could be made to the Case Management Judge. The appellant did not do so and instead sought to raise the request for declaratory relief in his memorandum of fact and law. His failure to properly amend his pleadings meant that the issue of the requested declaration was not in issue in the pleadings, with the result that the respondent was deprived of a meaningful opportunity to file evidence about the RCMP grievance process.
[4] We agree with the Federal Court that the request for declaratory relief fundamentally altered the nature of the application for judicial review and that it was not open to the appellant to make this alteration in his memorandum.
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