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Test for a Declaration

. Alberta (Attorney General) v. British Columbia (Attorney General)

In Alberta (Attorney General) v. British Columbia (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered a rare intergovernmental (province-to-province) dispute, where BC sued Alberta over some Alberta legislation and there were suggestions that it was retaliatory to BC. One issue was whether the case was suited for a declaratory remedy:
[174] In Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 [Ewert], the Supreme Court set out a four-part test on when a court can grant declaratory relief. This test requires that (i) the court have jurisdiction over the subject matter; (ii) the dispute be real and not theoretical; (iii) the party raising the issue have a genuine interest in its resolution; and (iv) the responding party have an interest in opposing the declaration sought (Ewert at para. 81).

[175] This test reaffirms, in essence, the test for declaratory relief set out in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745 [Solosky cited to S.C.R.], Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, and Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99 [Daniels], all of which were considered in Ewert. In Solosky, the Supreme Court clarified the requirement that the dispute must be real and not hypothetical. On this point, it contrasted real disputes with situations "“when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise”" (Solosky at 832). In a subsequent case, Operation Dismantle v. the Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481, the Court referred to Solosky in support of the proposition that there has to be a "“cognizable threat to a legal interest”" before a court can consider declaratory relief (at 457 S.C.R.). More recently, in Daniels, the Court specified that a declaration can "“only be granted if it will have practical utility, that is, if it will settle a ‘live controversy’ between the parties”" (Daniels at para. 11).

[176] In responding to Alberta’s prematurity objection, the Judge relied on the Daniels test (Judge’s reasons at para. 84, citing Daniels at para. 11). He opined that while the requirement of a "“live controversy”" implies the need for a factual matrix, this is more often the case when the Charter is at play. In disputes involving division of powers issues, a factual matrix is less relevant given that the "“pith and substance of legislation does not change according to the manner in which the law is applied”" (Judge’s reasons at para. 86). The Judge therefore held that in determining whether BC’s action gives rise to a "“live controversy”" of the kind contemplated by Daniels, evidence as to the application of the Act is of little relevance. As such, the Judge took the view that declaratory relief is available to BC in the present matter even though there are no regulations in place to operationalize the Act and the Minister has yet to use the powers conferred upon him by that legislation:
[86] A factual background, however, is less necessary where the Charter is not in play, particularly in division-of-powers cases. The pith and substance of legislation does not change according to the manner in which the law is applied. Indeed, in R v Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 SCR 463 at 485–488 [Morgentaler], the Supreme Court of Canada noted that evidence of a statute’s practical effects is of little relevance in ascertaining the statute’s pith and substance. Courts have often dealt with the merits of actions or motions for declaratory judgments regarding the compliance of legislation with the division of powers or other constitutional limits to legislative power: Attorney General of Quebec v Blaikie, 1979 CanLII 21 (SCC), [1979] 2 SCR 1016; Potter v Québec (Procureur général), 2001 CanLII 20663 (QC CA), [2001] RJQ 2823 (CA); British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 474; British Columbia (Attorney General) v Christie, 2007 SCC 21, [2007] 1 SCR 873; Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3 [Canadian Western Bank]. While the procedural background of those cases varies, it appears that the Court in each case dealt with the constitutional issue without inquiring about the precise manner in which the legislation would be implemented.

[87] Applying those principles, I am unable to give effect to Alberta’s prematurity objection. The most basic reason is that British Columbia’s action does not challenge any measure taken pursuant to the Act. It challenges the Act itself. It is what the Americans would call a “facial challenge.” The Act is now in force. The main question will be to determine the Act’s pith and substance and, according to Morgentaler, this does not require evidence regarding the application of the Act. Evidentiary difficulties are not an obstacle in this case.

[88] Moreover, there is a “live controversy,” as required by Daniels. In the course of the debates regarding the Act, members of the Alberta legislature have described it as targeting British Columbia. British Columbia, in turn, asserts that the Act is unconstitutional. This is certainly a live controversy. The practical utility of a declaration is beyond question.

[89] The fact that the Lieutenant Governor in Council must make certain regulations and the Minister must make certain orders before the Act produces concrete effects is immaterial. In the particular circumstances of this case, the mere adoption of the act is a threat that is sufficient to give rise to a “live controversy” of the kind contemplated by Daniels.
....

[181] In light of the above, I believe the Judge erred in holding that "“the mere adoption of the act is a threat that is sufficient to give rise to a ‘live controversy’”" (Judge’s reasons at para. 89). In a section 121 analysis, a court must first establish that the impugned law in essence restricts the movement of goods across a provincial border before it can proceed to an inquiry into the law’s purpose (see Comeau at para. 111). Put differently, consideration must first be given to the actual cost imposed on the movement of goods. An indeterminate threat (e.g. to "“turn off the taps”" or "“inflict economic pain”") that has not materialized into an actual charge is insufficient to establish a violation of section 121. As no charge or restriction has yet been imposed by Alberta on the export of crude oil to British Columbia, it is impossible for a court to say anything about the Act’s effects, if any, on a province’s rights or obligations under section 121. Simply put, a section 121 dispute "“has yet to arise and may not arise.”"

[182] It is therefore plain and obvious that, as matters currently stand with regards to the section 121 component of BC’s claim, the legal test for declaratory relief has not been met. In this respect, I find BC’s claim against Alberta to be premature.
. 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.

[12] The first disputed issue in this case is whether the declarations would have practical utility. There can be no doubt, in my respectful view, that granting the first declaration meets this threshold. Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution.

[13] Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis. As the trial judge found, when Métis and non-status Indians have asked the federal government to assume legislative authority over them, it tended to respond that it was precluded from doing so by s. 91(24). And when Métis and non-status Indians turned to provincial governments, they were often refused on the basis that the issue was a federal one.
. 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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