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Canadian Animal Law

Nature of a Declaration

. 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.


[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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