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Declarations - Nature of a Declaration. RW Stick Holdings Inc. v. Canadian Flatbeds Ltd [IMPORTANT re nature of declarations]
In RW Stick Holdings Inc. v. Canadian Flatbeds Ltd (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal, this brought against a judgment "for $35,000 plus interest and costs, for breach of a lease agreement between the parties".
The court considers the (accepted) law that the Small Claims Court cannot grant declarations, here while attempting to explain how the appellant's argument may have misperceived the underlying issue as one of normal fact-finding:Issue No. 2: Did the Deputy Judge exceed her jurisdiction by granting declaratory relief, or in the alternative, by granting relief in a matter concerning real property rights?
Jurisdiction of the Small Claims Court
[37] The jurisdiction of the Small Claims Court is set out in s. 23(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as follows:Jurisdiction
23(1) The Small Claims Court,
(a) has jurisdiction in any action for the payment of money where the amount claimed does not exceed the prescribed amount exclusive of interest and costs; and
(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount. [38] There is no question that a deputy judge of the Small Claims Court lacks the jurisdiction to grant declaratory relief. Nor does a deputy judge have the jurisdiction to grant relief regarding an interest in real property, other than monetary damages.
[39] However, RW’s Small Claims Court Claim did not seek declaratory relief or relief in regard to an interest in real property. Nor did the reasons of the Deputy Judge purport to grant such relief. Rather, RW claimed and the Deputy Judge granted relief in the form of monetary damages only. As set out below, that relief came within the jurisdictional bounds of the Small Claims Court.
The Deputy Judge Did Not Grant Declaratory Relief
[40] The reasons of the Deputy Judge do not even mention the words “declare” or “declaration”. Rather, the Deputy Judge granted judgment in favour of RW for the Small Claims Court’s $35,000 limit, plus interest and costs.
[41] Nonetheless, CFL appears to conflate the idea of a declaration with a finding of fact. In Harrison v. Antonopoulos, 2002 CanLII 28725 (ON SC), 62 O.R. (3d) 463 (S.C.J.), at paras. 25-28, Lang J. (as she then was) points out that every civil proceeding requires findings of fact, which she describes as factual declarations. Those findings are not a form a declaratory relief.
[42] Lang J. writes:25 When the court exercises its original jurisdiction between private parties, a "declaration" usually refers to declarations or findings of fact naturally arising in the course of a fact-finding exercise. It would appear that courts have been increasingly willing to incorporate factual declarations into judgments to assist parties with respect to issues of continuing liability and to give them the right to execution with respect to an ongoing right. The original jurisdiction of the court to make declarations of fact appears to have been accepted in Coombe.
26 It is important to know the purpose of the question because law and equity provide different types of declarations. Every action, by its nature, requires factual declarations. In a tort action, such as the one accompanying this claim for accident benefits, the plaintiff seeks factual findings to establish the defendant's liability. She wants the court to hold that the defendant breached the applicable standard of care by making findings that he drove his motor vehicle into the plaintiff while she was crossing the street at a marked crosswalk. While these findings might be phrased as "declarations", they are more familiarly known as findings of fact. That findings of fact are required does not, however, mean that "declaratory relief" is necessarily being requested. The distinction between declarations of fact and declaratory relief was noted by Reilly J. in Ramm v. Sun Life Assurance Co. of Canada (1999), 1999 CanLII 14784 (ON SC), 43 O.R. (3d) 652 (Gen. Div.), where he stated that declarations of fact "will form part of the judgment in any civil case: the defendant was (or was not) negligent, the statement was (or was not) libelous. What then is the difference between a declaration of fact and declaratory relief?" (p. 656 O.R.)
27 In the recently released Zamir & Woolf: The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), authors Lord Woolf and Jeremy Woolf provide a useful description of declaratory judgments. In accordance with the various authorities dealing with this issue, the authors note that such a judgment "is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs" (para. 1.01). They helpfully go on to contrast a declaratory judgment with an executory or coercive one. A declaratory judgment is restricted to a declaration of the parties' rights. It contains no provision ordering any party to do anything. In a coercive judgment, "the courts determine the respective rights of the parties and then order the defendant to act in a certain way, for example, by an order to pay damages or to refrain from interfering with the claimant's rights ...". A coercive judgment, if ignored, may be enforced through levying execution (para. 1.02). Declaratory judgments are also distinguished from "divestive" judgments, which establish new rights rather than determine existing ones, for example, divorce judgments. Finally, and also distinct from declaratory judgments, are those declarations which "declare not only the rights of the plaintiff, but also the remedy to which he [or she] is entitled" (para. 1.03). Although remedial entitlement is a component of this last type of judgment, such a declaration lacks an enforcement mechanism.
28 Declaratory relief, being only a declaration of parties' rights, is mainly sought in commercial matters to help parties define their rights, and as a means to settle matters amicably where reasonable people would otherwise disagree on their mutual obligations and wish to resolve the matter in order to avoid future disputes. In other words, a cause of action need not be extant at the time a party requests declaratory relief. Because declaratory relief is in essence a request for an advance ruling, courts have discretion to refuse such relief. This is the type of relief contemplated by s. 108(2) of the CJA - a declaration of parties' rights with no coercive effect or remedial entitlement. [43] Put simply, the Small Claims Court cannot make any determination regarding any claim before it, whether in tort or breach of contract, or otherwise, unless it makes findings of fact. There is a no difference between the findings of fact in this case and those in, for example, innumerable other Small Claims Court breach of contract decisions over the years.
The Deputy Judge Granted No Relief in a Matter Concerning Real Property Rights
[44] In addition, the Deputy Judge made no order granting relief regarding real property rights. Rather, she granted damages for CFL’s breach of contract; in this case, the Final Lease. Nothing in the reasons or order of the Deputy Judge purported to grant either party any real property rights or change any such rights. Rather, the Deputy Judge property considered the real property rights of the parties in determining that CFL owed money to RW arising out of its breach of contract.
[45] The point was made some time ago in the British Columbia Provincial Court decision, Lou Guidi Construction Ltd. V. Fedick, [1994] B.C.J. No. 2409, 1994 CarswellBC 2818 (P.C.). There, Stansfield J. faced a jurisdictional argument similar to the one propounded by CFL, in a suit regarding a breach of an agreement of purchase and sale for real property.
[46] At para. 18, Stansfield J. found that “the focus of the jurisdictional inquiry is the nature of the relief sought, not whether the matter touches upon certain issues.” Then at para. 22, Stansfield J. determined:In my view there now is nothing precluding a judge of this court considering interests in land in determining whether a claimant should succeed in a claim for debt or damages so long as no remedy purports in any way to affect title to or other interest in land, and so long as no statute precludes the particular consideration .... [47] At para. 23, Stansfield J. concluded:In this case the property in issue has been sold to a third party, and title conveyed to that person. I cannot imagine any determination which might be undertaken in the course of deciding whether the claimant is entitled to retain the deposit, or to be awarded damages in respect of the alleged deficiency, which could affect the title to land. [48] While that decision was based on the jurisdiction granted to the British Columbia Small Claims Court by that province’s Small Claims Act, R.S.B.C. 1996, c 430, s. 3, that provision’s grant of jurisdiction is similar to that granted by s. 23(1) of the Courts of Justice Act. The British Columbia provision reads as follows:3(1) The Provincial Court has jurisdiction in a claim for
(a) debt or damages,
(b) recovery of personal property,
(c) specific performance of an agreement relating to personal property or services, or
(d) relief from opposing claims to personal property
if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.
(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. [49] The reasoning of Stansfield J. in Lou Guidi was adopted by the Supreme Court of Yukon in two decisions involving claims for damages related to real property: Whitehorse (City) v. Cunning, 2009 YKSC 48, at paras. 76-86, and Young v. Beacon, 2010 YKSC 67, at para. 18.
Conclusion Regarding Jurisdictional Issues
[50] Nothing in the wording of s. 23 of the Courts of Justice Act, which sets out the jurisdiction of the Small Claims Court, prohibits that court from awarding the relief granted by the Deputy Judge below. . K.D. v. Children’s Aid Society of Ottawa
In K.D. v. Children’s Aid Society of Ottawa (Ont Div Ct, 2026) the Ontario Divisional Court considers the discretionary nature of declarations:[3] The appellant submits that Doyle J.’s decision in effect amounts to a conclusion that the CAS acted lawfully or, in the alternative, that it was incumbent on her to address the issue. We disagree. Doyle J. clearly stated, “Based on this record, the court declines to rule on whether a warrant was required in this case.” It is well established that whether or not to grant declaratory relief is entirely discretionary: Ontario (Attorney General) v. Restoule, 2024 SCC 27, 494 D.L.R. (4th) 383, at para. 279. We see no error in how that discretion was exercised in this case. As no decision was made, there is nothing for this court to review. . Canadian Energy Services L.P. v. Secure Energy (Drilling Services) Inc.
In Canadian Energy Services L.P. v. Secure Energy (Drilling Services) Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a patent appeal, here from "a judgment of the Federal Court ... declaring inventorship and ownership of a patent for a polymeric drilling fluid used in drilling for oil".
Here the court considered tensions between declarations and remedial relief:(a) Was the relief sought declaratory?
[53] The Federal Court correctly identified the source of its power to issue a declaration of right in rule 64, which provides that "“the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed”".
[54] Whether to issue a declaration is an exercise of discretion that is owed deference on appeal: Canada (Attorney General) v. Iris Technologies Inc., 2022 FCA 101 at para. 18, aff’d 2024 SCC 24; Shot Both Sides v. Canada, 2024 SCC 12 at para. 67. However, that discretion is not unbounded. While a declaration may issue without a cause of action and whether or not any consequential relief is available (Ewert v. Canada, 2018 SCC 30 at para. 81), a court cannot issue a declaration of fact—it must address the legal reality in some way. A declaration must also have some practical effect: Shot Both Sides at para. 68.
[55] It is not disputed by the parties that the Federal Court has jurisdiction under rule 64 of the Federal Courts Rules to issue a declaration even in the absence of a cause of action. However, CES argues that what Secure sought (and ultimately obtained) was not a declaration but a form of remedial relief: Appellants’ Memorandum at para. 63.
[56] Purporting to grant a declaration when the remedy sought is truly remedial is an error of law: Canada v. Boloh 1(a), 2023 FCA 120 at paras. 58-60. The task of a judge considering the grant of a remedy framed as a declaration is to first "“determine the essential character and real essence of the remedy being sought”": Boloh 1(a) at para. 61; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250 at paras. 49-50.
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[60] Similarly, Yellowbird ABQB does not support CES’s position. In that case, the disputed declaration would have stated that the plaintiffs were "“entitled to receive all benefits, financial or otherwise, received by members of the Samson Cree Nation No. 444”" which they had not received during the relevant period: Yellowbird ABQB at para. 22. The Court of Queen’s Bench found that the declaration was remedial in nature because it could not be "“enjoyed without further legal execution or intervention (by garnishee, seizure, appointment of a receiver, or other enforcement mechanism)”": Yellowbird ABQB at para. 35. The declaration sought by the plaintiffs would have "“declared”" that they were owed money by the First Nation—there was "“no way that the Plaintiffs could enjoy the fruits of the declaration without the intervention of further legal process”": Yellowbird ABQB at para. 39. . 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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