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Declarations - General. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court sets out basics of a civil 'declaration':[279] A declaration is “a judicial statement confirming or denying a legal right of the applicant. Unlike most rulings, the declaratory judgment merely declares and goes no further in providing relief to the applicant than stating his rights” (L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 1). Declaratory relief is discretionary. A court may award a declaration 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” (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11, and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46). A declaration should not be issued if it is not “capable of having any practical effect in resolving the issues in the case” (Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 833). . Halton (Regional Municipality) v. Canadian National Railway Company
In Halton (Regional Municipality) v. Canadian National Railway Company (Ont CA, 2024) the Court of Appeal considered (and dismissed) appeals of denials of injunction and declaration applications by several local municipalities against CN, this with respect to the construction of a huge rail intermodal hub near Milton. The primary issue was the extent to which this federal project required provincial and municipal authorizations in the face of the doctrine of 'interjurisdictional immunity'.
These extracts show the requirements for declaration (and injunction) remedies, finding that the evidentiary record before it was inadequate, and the stage of development of the particular issues before it was premature:[20] The application judge also concluded that he did not have the fact specific information required to resolve whether interjurisdictional immunity applied to the listed local laws, other than the three bylaws he would go on to give individuated analytical consideration. He noted that “the identification of the core of a federal power in a particular case and the degree of impairment proposed [issues of importance on the question of interjurisdictional immunity] are fact-specific and nuanced questions” that require evidence of the factual effect of an impugned law. He said, “simply listing 50 or more laws that might apply one day is not a sufficient basis to raise a constitutional issue in a justiciable manner.” He concluded that save facts relating to the three bylaws “there is no factual dispute before the court on which CN shoulders a burden of proof.” For these reasons he “decline[d] to consider the hypothetical questions of whether the laws listed by the applicants are invalid or inoperative under the doctrines of interjurisdictional immunity or paramountcy.”
[21] Summarizing these conclusions he said, “another way to say the same thing is that the bulk of this application is premature.”
[22] The three bylaws the application judge did consider under the doctrine of interjurisdictional immunity were Milton bylaw 33-2004 that prohibits anyone from removing topsoil and altering the grading of any land without a permit; Milton bylaw 035-2020 requiring a permit to widen an entrance road, and Halton bylaw 32-17 that requires a permit to construct an access to a regional road. He found that whether CN needed to comply with these bylaws was a live issue before him supported by a factual record showing that CN undertook each of these activities – moving topsoil, altering a Milton Road, and adding an entrance to a regional road – without permits.
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[26] The application judge went on to find that the proposed injunctions and declarations under the three bylaws would substantially “impair the core of the federal undertaking” and that the doctrine of interjurisdictional immunity prevents this outcome. He said, Halton is “not entitled to use the permitting processes on curb cut and grading bylaws to force CN to seek their discretionary approval of the location and construction of the intermodal hub”.
[27] Of note, the application judge said clearly that he was not deciding whether any of the listed local laws, including the Planning Act, apply to the intermodal hub project, and he cautioned that his decision “does not mean that CN is immune to any or all local or provincial laws”. Indeed, he opened his decision by stressing how narrowly he was resolving the issues:My holding today is that the applicants’ position that prior to building the intermodal hub CN is required to apply for exemptions from curb cut and grading bylaws by applying for and obtaining official plan amendments impairs the core of the federal power and undertaking substantially and in a way that there is ample precedent to preclude. ....
E. Did the application judge err in law or in fact In declining to address the constitutional applicability and operability of the overwhelming majority of the LISTED Local laws?
[86] In this ground of appeal Halton argues that the application judge erred by denying its requests for declaratory relief without addressing the applicability and operability of most of the listed local laws it had identified. I do not understand this ground of appeal to relate to his decision to deny injunctive relief to Halton. I say this because Halton advised us in its submissions that it confined its application for injunctive relief before the application judge to the three bylaws it featured in its submissions, and the application judge gave those listed local laws close attention. He certainly did not decline to address the constitutional applicability and operability of those three bylaws. This ground of appeal therefore focuses on the application judge’s conclusions that Halton’s application for declaratory relief lacked not only the factual underpinnings to demonstrate a live controversy that warranted declaratory relief, but also lacked the specific information required to resolve whether interjurisdictional immunity applied to these remaining laws, leading him to decline to consider the “premature” “hypothetical questions” that Halton had posed.
[87] I see no error in the application judge’s decision to deny declaratory relief on this basis. He applied the correct legal tests, including by placing the burden on Halton to establish the evidentiary foundation for the declarations it sought. His conclusion that the necessary factual underpinnings were lacking was supported by the record and arrived at without palpable and overriding error, and it provided an appropriate basis for his decision to deny the relief requested. Halton argues that the application judge failed to engage with or ignored the evidentiary record, but there is no basis for this submission. As I will explain, I agree with the application judge that Halton failed to provide the information it needed to support the relief it sought and failed to discharge the onus it bore.
[88] In any event, as I will explain, the decision whether to grant declaratory relief is highly discretionary. Even if there had been sufficient evidence to permit adjudication and to demonstrate a live controversy relating to some of the laws at issue, the application judge was entitled to choose not to adjudicate those claims, particularly given how the application before him was argued. . Makivik Corporation v. Canada (Attorney General)
In Makivik Corporation v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered principles of declaratory relief:[152] A court may grant a declaration where it has jurisdiction to hear the issue, the dispute before the court is real and not theoretical, the party raising the issue has a genuine interest in its resolution, and the respondent has an interest in opposing the declaration sought: Ewert v. Canada, 2018 SCC 30 at para. 81. In the exercise of its remedial authority, a court may grant a declaration that the Crown failed to act honourably in fulfilling its constitutional obligations to Indigenous peoples: see, for example, Manitoba Metis at paras. 140, 143-144, 154; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 80, affirming in part Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 147 at para. 60.
[153] The granting of declaratory relief, like the granting of any relief on judicial review, is discretionary: Ewert at para. 83; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 36; Strickland at paras. 37-38; Bessette at para. 35; Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(3). As discussed above (at paragraphs 65) remedial decisions on judicial review are accordingly subject to appellate review on the standard set out in Housen v. Nikolaisen – correctness on questions of law and palpable and overriding error on questions of fact or mixed fact and law (absent an extricable question of law). The application judge’s exercise of his discretion not to grant declaratory relief in this case would, therefore, ordinarily be entitled to deference. . 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company
In 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company (Ont CA, 2019) the Court of Appeal set out some refreshing basics on declarations:Issue 1: Did the application judge err by making declarations in the absence of an underlying claim and therefore a real dispute?
[20] The Supreme Court most recently described the criteria for declaratory relief in S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4 (CanLII), 430 D.L.R. (4th) 621, at para. 60: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). [21] The authority to make a declaration of right is found in s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 97 provides:The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right, whether or not any consequential relief is or could be claimed. [22] While the court has the jurisdiction and authority to make a declaration of right, it is only to be used when the declaration will have an effect on an existing dispute between the parties. It is not to be given as an opinion on a hypothetical set of facts, or as an academic exercise to settle what may happen in the future. For example, in Re Lockyer, 1933 CanLII 137 (ON CA), [1934] O.R. 22 (Ontario Supreme Court – Court of Appeal), a will left the residue of the testator’s estate following the death of the life interest beneficiary to be divided among named charities, one of which was the Protestants’ Orphan Asylum. As there was no such charity in existence, the Protestant Children’s Homes sought a declaration that it was the intended residuary beneficiary. However, it brought the application before the death of the life interest beneficiary. The court refused to give the declaration because it would have no present effect and circumstances could change before it could have an effect; for example, the life interest beneficiary could use the entire interest before she died. At p. 26, Riddell J.A. quoted from Curtis v. Sheffield (1882), 21 Ch. D. 1, at pp. 3-4, where Jessel M.R. stated:Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the decisions, or there are some other special circumstances to satisfy the Court that it is desirable at once to decide on the future rights. [23] The leading decision from the Supreme Court on this issue is Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821. Mr. Solosky, a federal prisoner, sought a declaration that it would be illegal for penitentiary officials to open and read his mail to and from his lawyer. Dickson J. stated that the principles that guide the court in exercising its jurisdiction to grant a declaration have been stated many times. There are two factors to consider. The first is the reality of the dispute: Dickson J. explained at p. 832 that “[i]t is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise”. In Solosky, the dispute was not hypothetical because there was an order in place requiring that Mr. Solosky’s mail be opened and read; that order had been and was continuing to be applied and therefore would apply to future mail.
[24] If the dispute is established as a real dispute, then the second factor is “whether the declaration is capable of having any practical effect in resolving the issues in the case”: at p. 833. In Solosky, the court concluded that the appellant was not entitled to the declaration sought for other reasons, but that otherwise, the court could have exercised its jurisdiction to grant it because the two criteria stated above were met.
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Issue 2: Did the application judge err by declaring findings of fact?
[30] Declaratory relief must determine the rights of the parties. While determining the rights of the parties may entail findings of fact, courts do not have jurisdiction to simply declare facts, detached from the rights of the parties.
[31] Where the issue between an insured and the insurer is not the interpretation and application of the policy to a specific set of facts, but rather, what were the facts that occurred, then it is not a proper case for declaratory relief. The application judge erred by making findings of fact under the guise of a declaration of right.
[32] This issue has been canvassed numerous times by the Ontario Superior Court of Justice in the context of s. 108(2) of the Courts of Justice Act, which provides that claims for declaratory relief are to be assessed without a jury. Therefore where a plaintiff asks for declaratory relief and seeks to strike a jury notice, the court will examine whether in fact the claim is for declaratory relief, in which case the jury notice will be struck, or whether it is in reality merely a factual dispute that can be decided by a jury. The jury notice will not be struck where the claim is not properly for declaratory relief but for findings of fact on disputed evidence: see Harrison v. Antonopoulos (2002), 2002 CanLII 28725 (ON SC), 62 O.R. (3d) 463 (S.C.); Ramm v. Sun Life Assurance Co. of Canada (1999), 1999 CanLII 14784 (ON SC), 43 O.R. (3d) 652 (S.C.); and Thibault v. Empire Life Insurance Co., 2012 ONSC 1723 (CanLII), 24 C.P.C. (7th) 208.
[33] For example, in Reid v. Manufacturer, 2010 ONSC 4645 (CanLII), 89 C.C.L.I (4th) 149, the court explained at paras. 35-36:Manulife's argument, of course, assumes that there was, in fact, a detrimental change in Mr. Reid's health in the relevant time period. But that fact is disputed. In fact it is the very centre of the dispute between the parties. There appears to be no dispute about their legal rights, obligations and entitlements depending on the outcome of that factual finding. The court in this instance is not called upon to make a pronunciation on the legal rights of the parties. They agree that their rights are spelled out in the policy. What they do not agree upon is whether a particular constellation of facts existed that vitiated the policy. The court is called upon to determine what is a relatively narrow factual dispute: whether there was a detrimental change in Joel Reid's health in the relevant time period.
On careful review, in pith and substance, this case is clearly a factual dispute. The parties seek a determination of that factual dispute and, at least from the plaintiff's point of view, a coercive order should that factual determination be resolved in his favour. [Emphasis added.] [34] With respect, once the application judge heard the application and found that he could not make a declaration of rights because no claim existed, it was an error to make factual findings in relation to the two disputed issues raised by Northbridge’s denial of coverage letter and to frame those findings as declaratory relief.
[35] As an ancillary point, s. 138 of the Courts of Justice Act directs that: “As far as possible, multiplicity of legal proceedings shall be avoided.” This court has recently explained in the context of the propriety of awarding partial summary judgment, that cases should only rarely be bifurcated. In Butera v. Chown, Carins LLP, 2017 ONCA 783 (CanLII), 137 O.R. (3d) 561, the court set out a number of reasons why findings should not be made by one judge that do not dispose of the action and bind the judge that will hear and dispose of it, at paras. 29-34: (1) the danger of duplicative or inconsistent findings; (2) delay of the main action; (3) such motions can be expensive; (4) judges are required to spend time writing extensive reasons which do not dispose of the action; and (5) the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial, increasing the risk of inconsistent findings.
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