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Declarations - Utility Required. 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General)
In 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against two copyright-related declarations granted on Crown summary judgment.
Here the court extensively considers the declaration requirement that such an order have 'practical utility':[19] The question of whether the declarations sought by the Attorney General should be addressed as a result of the discontinuance of the underlying copyright infringement action was raised before the Federal Court. The Federal Court Judge noted, at paragraph 4 of his reasons that "“… Blacklock's Reporter argued that its discontinuance of its action resulted in the motion for summary judgment being without object”". At the Federal Court hearing, both parties referred, directly or indirectly, to the decision of the Supreme Court in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (Daniels) (paragraphs 72 and 74 of the reasons of the Federal Court).
[20] In Daniels, the Supreme Court stated:[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. [Emphasis added]
[21] Although neither party referred to Daniels in their memoranda in this appeal, the Court at the hearing of this appeal raised the issue of whether the two declarations that were ultimately issued by the Federal Court lacked the requisite utility to justify the granting of these declarations. Both parties addressed this issue in oral argument at the hearing of this appeal.
[22] Given the very limited nature of the declarations that were issued as part of the Judgment, in my view, the issue in this appeal is whether these declarations should have been issued in light of the decision of the Supreme Court of Canada in Daniels.
[23] The failure to apply a binding decision of the Supreme Court of Canada, and, as a result, failing to consider a required element of a legal test, is an error of law, reviewable on the standard of correctness (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at paragraph 36).
IV. Analysis
[24] As noted above, in Daniels at paragraph 11, the Supreme Court set out the test for when a declaration should be granted and declared 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”". At the Federal Court hearing both parties, directly or indirectly, referred to Daniels. In paragraph 74 of his reasons, the Federal Court Judge responded to the reference to Daniels:... However, I note that the Supreme Court rather refers to “practical utility”, not “practical effect as between the parties”. On the basis that it claims that no practical effect as between the parties, [Blacklock’s Reporter] considers the matter moot. [25] There is no further discussion of Daniels in the reasons of the Federal Court Judge or why the declarations that were granted will have "“practical utility”", i.e., "“settle a ‘live controversy’ between the parties”".
[26] The first declaration is as follows:1. It is hereby declared that, having purchased the only type of subscription available, which was allowing the acquisition of the password needed to access articles produced by Blacklock’s Reporter, Parks Canada’s use of the password in the circumstances of this case constitutes fair dealing under section 29 of the Copyright Act. [27] The foundation for this declaration is the factual finding made by the Federal Court Judge that Parks Canada "“purchased the only type of subscription available, which was allowing the acquisition of the password needed to access articles produced by Blacklock’s Reporter”". The declaration then limits the finding concerning the use of the password to "“the circumstances of this case”". This finding reflected the Federal Court Judge’s view of the evidence presented related to the purchase of the subscription by Parks Canada.
[28] Blacklock’s Reporter devoted a significant portion of its memorandum to its arguments that, based on the evidence submitted at the Federal Court hearing, the Federal Court Judge made a palpable and overriding error in reaching this conclusion. However, since the underlying copyright infringement action related to Parks Canada’s access to and use of the articles was discontinued, no useful purpose would be served by this Court in reviewing the evidence and determining whether a palpable and overriding error was made.
[29] This declaration, based on the evidence that was before the Federal Court, is not relevant in any proceeding related to Parks Canada’s access to or use of the articles posted by Blacklock’s Reporter. It is far from clear how this declaration, based on the facts related to Parks Canada’s purchase of the subscription, would have any practical utility in another action concerning the purchase of a subscription by another government department or that department’s access to or use of articles posted by Blacklock’s Reporter.
[30] The second declaration is as follows:2. It is hereby declared that the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act. [31] This declaration is predicated on the acquisition and use of a password being licit. If the acquisition and use of a password is authorized, how could such acquisition and use constitute the circumvention of a TPM for the purposes of the Copyright Act? The declaration also does not address whether a password is a TPM [SS: 'technological protection measure']. Rather, the declaration is only applicable if a password is otherwise a TPM.
[32] It is also far from clear how the second declaration, limited and qualified as it is, would have any practical utility in another action concerning the purchase and use of a subscription by another government department.
[33] Neither declaration settles a "“live controversy”" between the parties. The first declaration is inextricably linked to the factual findings concerning Parks Canada’s purchase of the subscription and access to and use of articles posted by Blacklock’s Reporter. Analyzing the conflicting testimony and reaching a decision on the facts related to the purchase of the subscription by Parks Canada would not resolve any "“live controversy”" between the parties. The copyright infringement action concerning Parks Canada’s access to and use of the articles has been discontinued. Therefore, there is no longer a "“live controversy”" with respect to Parks Canada’s purchase of the subscription or its access to or use of the articles posted by Blacklock’s Reporter.
[34] The second declaration does not make any finding concerning whether a password is a TPM. It does not resolve any "“live controversy”" between the parties. The second declaration is also limited to "“the licit acquisition and use of a password”". This is simply a generic statement that the authorized acquisition and use of a password by anyone (if the password is a TPM) does not constitute circumvention of a TPM for the purposes of the Copyright Act. If the acquisition and use is authorized, it would follow that such acquisition and use should not be prohibited. Such a generic statement does not settle any "“live controversy”", let alone a "“live controversy”" between the parties.
[35] Blacklock’s Reporter raised an additional issue concerning the determination of what it had argued at the Federal Court hearing was the TPM in issue. At the Federal Court hearing, Blacklock’s Reporter argued that Blacklock’s Reporter’s paywall, and not the password, is the TPM. In paragraph 120 of his reasons, the Federal Court Judge stated that "“[t]he paywall is not the TPM”". Blacklock’s Reporter asserts, in paragraph 26 of its memorandum, that the Federal Court Judge erred in finding that Blacklock’s Reporter’s paywall was not the TPM. This finding is not, however, reflected in either of the two declarations that constitute the Judgment. The declaration in the Judgment that was issued in relation to a TPM only refers to a password, if it is otherwise a TPM. The declaration does not make any finding that the password is the TPM that was in issue in relation to the declarations that were sought nor does it declare that the paywall is not the TPM.
[36] As noted above, an appeal lies from the Judgment, not the reasons. Furthermore, the Federal Court Judge’s comments concerning whether the paywall is the TPM are not made in the context of an action for copyright infringement as that action was discontinued. They are only made in relation to a counterclaim for certain declarations, all of which are linked to the particular facts related to Parks Canada’s acquisition and use of the subscription and password.
[37] Of the 10 declarations that are set out in the counterclaim, 5 refer to a TPM. The declaration sought in paragraph 64 (c) of the counterclaim is a declaration that the terms and conditions of the subscription allowed Parks Canada to distribute the articles without breaching the alleged TPMs. Since the action was discontinued, the identification of the alleged TPMs would have to be found in the counterclaim. There is no allegation in the counterclaim that the paywall is the TPM.
[38] The requested declarations in paragraphs 64 (g), (h), and (i) of the counterclaim all are limited to whether the sharing of the password constituted the circumvention of a TPM. None of these declarations raise the issue of whether the paywall is the TPM.
[39] The final requested declaration (paragraph 64 (j) of the counterclaim) refers to the intention of Parks Canada. The particular TPM is not identified in this requested declaration. This requested declaration is simply that "“Parks Canada had no intention of circumventing a technological protection measure when its employees gained access to the articles of [Blacklock’s Reporter]”". This is limited to the intention of Parks Canada in relation to the circumvention of a TPM, regardless of what is determined to be the TPM. The identification of the particular TPM would therefore not be part of the issue raised by this requested declaration.
[40] Since the action for copyright infringement was discontinued, the only issues between Parks Canada and Blacklock’s Reporter arising from the pleadings were the requested declarations set out in the Appendix to these reasons. As noted by the Supreme Court in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56:[43] … Pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion…. [41] The declarations sought by Parks Canada in its counterclaim in relation to the circumvention of a particular TPM were limited to the sharing of the password. Following the discontinuance of the copyright infringement action, the only source to determine the issues was the counterclaim and its requested declarations. In essence the action became a reference to the Federal Court to grant specific declarations.
[42] The issue of whether the paywall is the TPM and whether Parks Canada circumvented the paywall does not arise in this proceeding, based on the pleadings. The comment of the Federal Court Judge that the paywall is not the TPM is obiter dicta as it not necessary to dispose of the issues arising from the only pleading before the Federal Court (i.e., the counterclaim). In any event, nothing herein should be interpreted as an endorsement or a criticism of this comment.
V. Conclusion
[43] As a result, in my view, there is no practical utility in rendering either declaration as neither declaration settles a "“live controversy”" between the parties. Therefore, the Federal Court erred in making the declarations. I would allow the appeal and set aside the Judgment of the Federal Court. Rendering the Judgment that the Federal Court should have made, I would dismiss the Attorney General’s motion for summary judgment with respect to the requested declarations. . Marmora and Lake (Municipality) v. Ontario
In Marmora and Lake (Municipality) v. Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissed municipality application for declarations, amongst other things, that "it is within every Ontario municipality’s sole jurisdiction to determine what is reasonable in performing their statutory maintenance and repair duties to keep highways or bridges in an acceptable state of repair under the Municipal Act, and a declaration that, where a municipality makes such a determination, it is not required to obtain a permit, comply with an order or be subject to the offence provisions or other enforcement provisions of the ESA and its regulations". This followed on Endangered Species Act POA convictions against the municipality for endangering rare butterfly habit.
Here the court considered the appellant's argument that "the issues raised in the [SS: declaration] application were not ripe for adjudication", given that declaratory orders are highly discretionary:(1) The application judge did not err in finding that the issues raised were not ripe for adjudication
[8] A court has the “broadest judicial discretion” in deciding whether to grant declaratory relief and may refuse to do so even if the case for declaratory relief has been made out: Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174, 171 O.R. (3d) 41, at para. 89. This court will defer to a judge’s exercise of discretion absent a clearly identifiable legal error, a material misapprehension of the relevant evidence, or a result that is indefensible on the relevant law and facts: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 25.
[9] The application judge correctly held that the broad declaratory relief sought by the Municipality should not be granted unless the issues raised were justiciable. As she noted, “courts will assume jurisdiction of a matter only when it becomes ‘ripe’ for judicial determination, in the sense that there is a live controversy, with a sufficient factual foundation, and no other prior, procedural avenues”: Lorne M. Sossin (now Sossin J.A.), Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Carswell, 2012), at p. 28.
[10] After canvassing the evidence, relevant caselaw, and the statutory framework at length, the application judge found that the subject matter of the proposed declaratory orders was not ripe for adjudication. The Municipality had not attempted to obtain a permit from the Ministry of Environment, Conservation and Parks (the “Ministry”) as contemplated under the ESA. Through a permit, it could have sought to maintain the highways, as required under the Municipal Act, notwithstanding the protection given to the butterflies as an endangered species. According to the respondent’s expert, who had assisted other municipalities in obtaining ESA permits, a permit could be obtained within a week (although she admitted it could take much longer) and the Municipality could apply for a multi-year permit covering various activities. The expert also testified that an ESA permit had been granted to another municipality for roadwork affecting the mottled duskywing butterfly (albeit in different circumstances), and that she knew of no case where a permit has been refused. This evidence contradicted the Municipality’s bald assertion that it would be unable to obtain a permit.
[11] As a result, the application judge could not find that the Municipality’s dual obligations under the Municipal Act and the ESA were unmanageable or unattainable. As the Municipality conceded in its arguments before this court, two statutory provisions from the same legislative body are presumed not to conflict.
[12] The Municipality argued that it would be too onerous for it to seek a permit given its limited budget and resources, and that it might not have time to obtain a permit if it had to do emergency roadwork. The application judge recognized that the Municipality’s concerns were sincere but found that they were untested, given the Municipality’s failure to engage with the respondent and the respondent’s evidence about the permit process. She noted that, under an ESA regulation, a party may be exempted from the permit process if there is an emergency that poses an imminent risk to health and safety: General, O. Reg. 242/08, s. 8(1).
[13] The Municipality argues that the application judge’s conclusion is inconsistent with this court’s reasons in Schaeffer v. Wood, 2011 ONCA 716, 107 O.R. (3d) 721, (rev’d in part on other grounds, 2013 SCC 71, [2013] 3 S.C.R. 1053). We disagree.
[14] In Schaeffer, the applicants were the families of two individuals who had died during interactions with the Ontario police officers. They sought a declaratory judgment that police officers involved were not entitled to obtain legal assistance in preparing their notes about the incidents. In both cases, the Director of the Special Investigations Unit that investigated the incidents concluded that there were no reasonable grounds to conclude that an officer had committed a criminal offence, in part because the officers’ notes were neither independent nor contemporaneous and hence not reliable as a tool to determine what probably happened.
[15] The application judge in Schaeffer dismissed the application on the grounds that the applicants lacked standing to sue for declaratory relief and that the issues raised were moot and not justiciable. This court granted the appeal. On the justiciability issue, it concluded that the application judge erred in finding that past policy debates about the role of the Special Investigations Unit precluded declaratory relief, since a regulation governing its investigations had been put into place. Sharpe J.A. held that the issue that the applicants sought to raise was not moot, and that the applicants were simply asking “for the court's interpretation of what the legislation does, and does not, allow in the context of a specific factual record emerging from two SIU investigations”: Schaeffer, at para. 42.
[16] The application judge reviewed this court’s decision in Schaeffer at length. She ultimately found it was distinguishable because it involved a “purely interpretive question”, where this case “involves more factual considerations, including the effectiveness of maintenance techniques and their relative impacts, the timing of such maintenance activities, the scope of road maintenance, etc.” She concluded that it would not be an economical and efficient investment of judicial resources to resolve the issues raised by the Municipality on the application.
[17] We see no error in the application judge’s analysis. We agree that the declaratory relief sought by the Municipality here is far broader and more complex than the orders sought in Schaeffer, and that the evidentiary record is inadequate for the determination of the issues raised in the application. The applicants in Schaeffer furthermore had no other venue to adjudicate the issues before the court. Here, the issues raised by the Municipality may be resolved in the prosecution before the Ontario Court of Justice or through the permit process.
[18] The Municipality did not identify any reversible error by the application judge on the justiciability issue. Her conclusion that the issues were not ripe for adjudication was not based on a legal error or a material misapprehension of the evidence nor is it unreasonable. It was open to the application judge to find, on the record before her, that the Municipality could not establish that its ESA obligations are irreconcilable with its obligations under the Municipal Act. As the Municipality’s lawyer acknowledged in argument before us, her client did not know what position the Ministry would have taken had a permit been sought. She argued that the Ministry would not give due consideration to the Municipality’s road maintenance obligations during the permit application process. This is entirely speculative. . Iris Technologies Inc. v. Canada
In Iris Technologies Inc. v. Canada (SCC, 2024) the Supreme Court of Canada dismisses an appeal regarding "the shared statutory jurisdiction in tax matters of the Tax Court of Canada and the Federal Court of Canada".
Here the court emphasizes the required 'utility' element for declarations:[56] It is true, as Iris argues, that a declaration can be an appropriate remedy in taxation matters before the Federal Court. As the Federal Court of Appeal has held, “while it is true that the Federal Court cannot invalidate an assessment . . . the Federal Court may grant a declaration based on administrative law principles that the Minister acted unreasonably” (Sifto, at para. 25).
[57] In this case, however, Iris’s notice of application discloses no basis on which to conclude the declarations sought could ever have any practical utility. The notice of application merely states that “[t]he declaration sought will have import in the Minister’s ongoing actions in relation to the applicant, including the applicant’s application for emergency wage subsidy” (A.R., at p. 43).
[58] It is settled law 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 v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11). No such live controversy was disclosed here. Rennie J.A. observed that in this instance, “[i]ssuing a declaration that does not quash or vacate the assessments would serve little or no purpose” (para. 18). He added that a declaration will not be issued “where there exists an adequate alternative remedy” (ibid.). Declarations with no practical effect will not issue, and a claim seeking such declarations cannot therefore succeed. This is another basis for which the Federal Court of Appeal rightly struck Iris’ application for judicial review. . Lesage v. Ontario (Attorney General)
In Lesage v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an application brought by an LSO member seeking mandamus and declaration orders against the AG, here targeted at the AG/court compiling and producing court case records "in six Ontario court houses":[3] The application judge denied Mr. Lesage’s request for mandamus on jurisdictional and other grounds and denied the requested declarations that Mr. Lesage sought for three reasons: (1) granting the declaratory relief would serve no practical purpose; (2) the open court principle that Mr. Lesage relied upon to ground his application includes the ability of the public to view and copy court documents but does not extend to requiring the aggregation, sorting and categorization of bulk data, which is what Mr. Lesage was interested in; and (3) even if the open court principle did extend to the aggregation, sorting and categorization of bulk data, decisions relating to the access and disclosure of documentation generated by the judiciary rests exclusively with the court, and the court having made its decision to deny the request “is the end of the matter”.
[4] Mr. Lesage does not appeal the denial of mandamus, but he does appeal the denial of the declarations. We would dismiss his appeal. In explaining our decision, it is unnecessary to address fully reasons (2) and (3) provided by the application judge. The application judge’s first basis for dismissing the application – that he would not exercise discretion to make the requested declarations because no practical purpose would be served – is sufficient to dispose of the appeal.
[5] The place to begin is by recognizing that Superior Court justices are empowered to make declarations, not required to do so: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 97. They have “the broadest judicial discretion” in this regard: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 37, quoting Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 90. We do not accept Mr. Lesage’s arguments that we should interfere with the application judge’s discretionary decision in this case.
[6] In exercising his discretion to deny the requested declarations, the application judge relied on the legal proposition that declaratory relief “is only to be used when the declaration will have an effect on an existing dispute between the parties”: 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, at para. 22. Although he argued that the relevant case law applying this principle is distinguishable, Mr. Lesage does not take issue with the principle itself. He made two other submissions instead, neither of which we find persuasive.
[7] First, in his appeal factum he argues that it was unfair for the application judge to decide his application on the basis that the declarations would serve no practical purpose when this issue was not argued before him. We disagree. The onus was on Mr. Lesage to persuade the application judge to exercise his discretion by granting the requested declarations. Given that it is a central if not mandatory consideration in determining whether a declaration should be made, Mr. Lesage should have addressed the question of whether the declarations he sought would serve a practical purpose. He cannot now, having failed to do so, argue that it was unfair for the application judge to dismiss his application on this basis.
[8] Second, Mr. Lesage argues that the application judge’s conclusion that the declarations sought would serve no practical purpose was arrived at on the erroneous basis that his decision to deny mandamus deprived the declarations of their utility. He focuses on the application judge’s comment that, “Given … my determination that the applicant is not entitled to the requested order in the nature of mandamus, I find that granting the requested declaratory relief would serve no practical purpose and I decline to do so”. Although Mr. Lesage’s argument evolved during oral submissions, his essential objection appears to be that the application judge failed to consider and/or recognize the impact of the declarations on their own, as binding judicial conclusions about the rights of the parties, even in the absence of mandamus.
[9] We do not agree. The application judge’s reasons must be read in their entirety. When this is done, it is clear that the application judge considered the likely impact that the requested declarations themselves would have. In elaborating on his conclusion, he said specifically that “the requested declarations would have no effect on the existing dispute between the parties”, observing that they “would be detached from the rights of the parties and in no way determinative of them.” This conclusion is not only a reasoned one, but it is unassailable. Mr. Lesage does not contest the proposition accepted by the application judge that the constitutionally protected principle of judicial independence requires that “control over access to and disclosure of any information or documentation created by or for the judiciary to carry out administrative tasks directly related to the judicial function, by necessity, rests with the judiciary”, not with MAG. The parties before the application judge were Mr. Lesage and the Attorney General of Ontario, whose office is responsible for MAG. Simply put, MAG, the other party before the application judge, is not empowered to decide whether to identify, compile and produce the requested information. It is obvious in these circumstances that the requested declarations “would be detached from the rights of the parties” and “would have no effect on the existing dispute between the parties.”
[10] Mr. Lesage argued before us that the declarations he sought were aimed not only at MAG but also at the Chief Justice of Ontario. He said he framed the application against the Attorney General of Ontario as a matter of pleading because the Chief Justice of the Superior Court and the Superior Court could not properly be made parties themselves. He submitted that it was and is his expectation that the requested declarations would influence the decision of the Court whether to make the requested disclosure.
[11] The application judge did not directly address the prospect that the declarations might influence the court, no doubt because the litigation proceeded as if directed at the Attorney General of Ontario. Nonetheless, it is evident that consideration of the potential impact of the declarations on the Office of the Chief Justice would have changed nothing. The application judge’s conclusion that the constitutionally protected principle of judicial independence requires that “control over access to and disclosure of any information or documentation created by or for the judiciary to carry out administrative tasks directly related to the judicial function, by necessity, rests with the judiciary” was uncontested. That conclusion undermines any realistic prospect that the declarations, if made, could or would assist Mr. Lesage in securing the compiled information he seeks. The Office of the Chief Justice is a judicial office, no doubt fully cognizant of the interests at stake. The Office of the Chief Justice was also aware of Mr. Lesage’s proposed purpose, and his history relating to prior applications and of the practical implications of the request Mr. Lesage was making. In addition, and perhaps most importantly, its decision to deny the initial request and the request for reconsideration were arrived at as a matter of prerogative through the exercise of judicial independence. We are not persuaded in these circumstances that the declarations, if made, could realistically have inspired the Office of the Chief Justice to reconsider, and we are not persuaded that had the application judge considered this prospect, his decision may have been different.
[12] Moreover, and relatedly, the fact that the power to make this decision belonged to the court through the Office of the Chief Justice pursuant to the constitutionally protected principle of judicial independence is a powerful consideration in support of the application judge’s discretionary decision not to purport to weigh in on that decision by making the requested declarations.
[13] There is no basis for interfering with the application judge’s discretionary conclusion that the requested declarations would serve no practical purpose and therefore should not be made. We deny this ground of appeal.
[14] Finally, during oral submissions before us, Mr. Lesage urged us not to defer to the application judge’s discretion because he exercised it based on the legally erroneous premise that the open court principle does not require the aggregation, sorting and categorization of bulk data. Without in any way commenting on the correctness of the application judge’s conclusions about the reach of the open court principle, we do not agree that the discretionary decision rested on or was influenced by the application judge’s views about the scope of the open court principle. It is clear that his conclusions about the reach of the open court principle played no role in his decision that the declarations would serve no practical purpose. The application judge addressed the “practical purpose” issue before addressing the reach of the open court principle, and then said explicitly, by way of introduction to his discussion about the open court principle, “even were I to find the requested declarations to be determinative of the parties’ rights, I would still decline to make them”. It follows that even if the application judge had been wrong about the scope of the open court principle, which we need not decide, his conclusion in this regard did not taint his discretionary decision.
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