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Federal Court - Declarations. 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.
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