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Declarations - Nature of a Declaration. Shot Both Sides v. Canada
In Shot Both Sides v. Canada (SCC, 2024) the Supreme Court of Canada considered an indigenous lawsuit where the plaintiff's claimed that they had been historically granted inadequate land in a treaty.
Here the court states the basics of the declaration remedy:(1) The Discretionary Nature of Declaratory Relief
[65] Declarations are “authoritative statements of legal states of affairs” (S. A. Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (2019), at p. 15; Lord Woolf and J. Woolf, The Declaratory Judgment (4th ed. 2011), at pp. 1-2). A bare declaratory judgment does not grant consequential or coercive relief. Indeed, “[t]he essence of a declaratory judgment is a declaration, confirmation, pronouncement, recognition, witness, and judicial support to the legal relationship between parties without an order of enforcement or execution” (L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 6).
[66] Declarations set out the parameters of a legal state of affairs or the legal relationship between the parties. They primarily confirm or deny the legal rights of the parties. Importantly, declarations can also confirm or deny the breach of a right or declare the existence of a new legal state of affairs (see, e.g., Manitoba Metis, at paras. 6 and 154; Smith, at p. 15).
[67] Declaratory relief is a discretionary remedy (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. 83). Courts have an “extremely wide jurisdiction” when issuing declaratory relief (Sarna, at p. 37; R. Zakrzewski, Remedies Reclassified (2005), at p. 158). This discretion is not without limits, and this Court has set out criteria that inform the availability of declaratory relief. In Ewert, this Court stated: “A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought . . .” (para. 81). Courts have long relied on these criteria for assessing the availability of declaratory relief (see, e.g., S.A., at para. 60; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46).
[68] Declarations should not be issued where there is no practical effect. As noted by this Court in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 832, “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”. The importance of practical utility is well established, including through the following excerpts from academic commentary:A declaration must serve some utility to the parties; otherwise, the court speaks for no reason befitting its jurisdiction. Therefore a court should avoid issuing a declaration devoid of tangible or concrete use to the litigants.
(Sarna, at p. 46)
The courts will not generally grant a declaration that is merely advisory, of no practical utility, or deals with a hypothetical dispute. . . . [A declaration] may also serve a corrective function in that it may authoritatively demonstrate to the defendant that he or she is infringing the claimant’s rights.
(Zakrzewski, at p. 159)
It is essential that the declaration be directed to the determination of legal controversies and produces some real consequences for the parties.
(D. Wright, Remedies (2nd ed. 2014), at p. 284) [69] As noted by the majority of the British Columbia Court of Appeal in West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232, at para. 343, “there is no obligation in the law of declaratory relief to litigate the range of a declaration’s effects. The question is simply whether the declaration will have practical utility” (emphasis added). . Bunker v. Veall
In Bunker v. Veall (Ont CA, 2023) the Court of Appeal considers the nature of a declaration, here where the court allowed an appeal against of 'declaration of illegality' (here, the illegality was criminal):[11] While procedurally an estate may seek the advice of the court including declarations of right under r. 14.05(3) of the Rules of Civil Procedure, that rule does not give the court jurisdiction. It is a procedural rule only. This court recently discussed these principles at para. 61 of Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363:Rule 14.05 is procedural in nature. It does not create jurisdiction, but assumes it, and provides a means by which to engage that jurisdiction: Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, 130 O.R. (3d) 675, at paras. 17-18. A court must have jurisdiction independent of r. 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether by application or action: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 16. ....
[22] This court recently discussed and described the discretionary nature of declaratory relief in Bryton Capital Corp. GP Ltd. At para. 64, van Rensburg J.A. quoted with approval a non-exhaustive list of reasons why a court may deny declaratory relief, from Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, 73 R.P.R. (4th) 241, at para 10:[S]tanding, delay, mootness, the availability of more appropriate procedures, the absence of affected parties, the theoretical or hypothetical nature of the issue, the inadequacy of the arguments presented, or the fact that the declaration sought is of merely academic importance and has no utility. . Canada (Attorney General) v. Iris Technologies Inc.
In Canada (Attorney General) v. Iris Technologies Inc. (Fed CA, 2022) the underlying case was a judicial review (JR) brought by Iris after an audit and tax reassessments seeking several declarations. The basis of the JR were the grounds and procedures of the audit. The AG made an interlocutory motion to quash the JR, which lost twice at the Federal court (prothonotary and panel), and then appealed again to the Federal Court of Appeal. There the AG finally won.
The issue of whether declarations of fact (only) arose:[15] There is a further problem with this ground. It seeks a declaration of fact.
[16] Declaratory relief must determine the rights of the parties. A court should not grant declarations of fact (West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232 at paras. 309-312). 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 (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99 at para. 60 [Metro Vancouver Housing]; 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, 96 C.C.L.I. (5th) 1 at paras. 22, 30). Additionally, the application was denied on discretionary grounds as it would serve no useful purpose:[18] A declaration is a prerogative remedy and hence discretionary. One consideration in the exercise of that discretion is whether the declaration will have any real or practical effect (Metro Vancouver Housing at para. 60). Here, even assuming the Federal Court had jurisdiction to review the purpose behind the decision to assess, a declaration should not issue. The assessment remains valid and binding until vacated by the Tax Court. Issuing a declaration that does not quash or vacate the assessments would serve little or no purpose (Johnson at para. 41). Nor will a declaration be issued where there exists an adequate alternative remedy. The declarations here will have no practical effect ̶ they are purely academic. .. York University v. Canadian Copyright Licensing Agency (Access Copyright)
In York University v. Canadian Copyright Licensing Agency (Access Copyright) (SCC, 2021) the Supreme Court of Canada briefly considered declaratory remedies:
[82] In my view, it is not appropriate to entertain York’s request for declaratory relief in these proceedings. This Court recently stated the test for when declaratory relief may be granted in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (CanLII), [2016] 1 S.C.R. 99, per Abella J.: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. [Citation omitted; para. 11.] Daniels drew on Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, where Dickson J. stated that declaratory relief is a remedy availing to “persons sharing a legal relationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined” (p. 830). And most recently in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, the Court emphasized that “[f]airness requires that the parties affected by declaratory relief be heard” (para. 42, per Wagner C.J. and Abella and Karakatsanis JJ.). . Ewert v. Canada
In Ewert v. Canada (SCC, 2018) the Supreme Court of Canada issued a declaration that the Correctional Services of Canada failed to meet a statutory requirement:[81] A declaration is a narrow remedy but one that is available without a cause of action and whether or not any consequential relief is available: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 143; P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at p. 37; L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 88; see also Federal Courts Rules, SOR/98-106, r. 64. A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought: see Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at pp. 830-33.
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[83] A declaration is a discretionary remedy. Like other discretionary remedies, declaratory relief should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question: see D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 1:7330. Here, the grievance procedure created by s. 90 of the CCRA arguably provides an alternative means by which Mr. Ewert could challenge the CSC’s compliance with the obligation in s. 24(1) of the CCRA. It may be that in most cases, the existence of this statutory grievance mechanism would be a reason to decline to grant a declaration. However, in the exceptional circumstances of this case, a declaration is warranted. . Entertainment Software Assoc. v. Society Composers
In Entertainment Software Assoc. v. Society Composers (Fed CA, 2020) the Federal Court of Appeal considered a judicial review application where the new s.2.4(1.1) 'making available' of the Copyright Act was at issue. This provision makes it a 'communication of a work' under the Act (for which a SOCAN tariff was payable) to "allow() a member of the public to have access to it from a place and at a time individually chosen by that member of the public". As much of public internet use of copyrighted material is of this nature, the case was quite significant.
The Court [Stratas JA] took the chance to criticize the over-use of declarations as a remedy, here under the Federal Court rules:[103] The applicants request declarations as to the proper interpretation of subsection 2.4(1.1). They do not offer any reasons in support of their request. So we do not know why they desire declarations here.
[104] In the experience of this Court, many parties seek declarations only to highlight their remedy, somehow transforming it, so-to-speak, from a remedy typed in lower-case to a remedy typed in upper-case. But that is not the role of declarations: they are not the equivalent of the caps-lock key on a keyboard, to be pushed whenever one wishes to shout out one’s point.
[105] Declarations, potentially available under para. 18(1)(a) of the Federal Courts Act, R.S.C. 1985, c. F-7, are extraordinary remedies, granted only when necessary and of practical utility: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332. They are available to condemn, in a way that binds all, specific public acts, decisions or legislative provisions as being contrary to law. They are also available to delineate, in a concrete way that binds all, the legal rights, the legal state of affairs or the legal status of parties before the Court when the delineation will have some practical use: William Wade & Cristopher Forsyth, Administrative Law, 11th ed. (New York: Oxford University Press, 2014) at 483-491. The key concept underlying the availability of declarations is practical utility: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99.
[106] Turning to this case, declarations are not awarded just to take reasons for judgment setting aside an improper interpretation of a legislative provision—which are already binding on other parties, the Board and courts—and boost them to a different level for no practical reason. When reasons for judgment suffice, the added remedy of a declaration is of no practical use and will not be granted: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 at para. 158; Bernard v. Canada (Attorney General), 2018 FCA 23 at para. 7.
[107] Further, in this case, a declaration as to the definitive, comprehensive meaning and use of subsection 2.4(1.1) is not possible. We have not received full argument on this. As well, it would have no practical bearing on the outcome of the case: on the state of the evidence before it on the "“making-available”" activity in this case, the Board has decided not to approve a tariff.
[108] In this case, the appropriate remedy is to quash the decision of the Board concerning the interpretation of subsection 2.4(1.1), grant the applicants their costs, and no more. . Brown v Hanley
In Brown v. Hanley (Ont CA, 2019) the Court of Appeal the court commented as follows on the nature of declarations:[35] A declaratory judgement by a court is “a formal statement….pronouncing upon the existence or non-existence of a legal state of affairs”: Zamir & Woolf, The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), at para. 1.02. It does not require an injury or wrong to have been committed or even threatened. Rather, it is available “where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought”: Ewert v. Canada, 2018 SCC 30 (CanLII), [2018] 2 S.C.R. 165, at para. 81.
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