Many litigants have confusion around pleading declaratory relief. A declaration is a narrow remedy.
A declaration confirms or denies the existence of a right. It is available without a cause of action. It is also available whether or not other consequential damages are sought (e.g. payment of damages, injunction, etc).
In Savary v Tarion, 2021 ONSC 2409, Justice Bale of the Ontario Superior Court of Justice provides guidance on seeking a declaration from the court. Justice Bale writes that a declaration is not requested for the finding of facts. Similarly, a request for a declaration will be rejected if it seeks to confirm a breach of statute. This is because it would serve no useful purpose. There is no free-standing cause of action for breach of a statute.
In Ewert v Canada, 2018 SCC 30, the Supreme Court sets out four requirements for granting a declaration:
- (1) the court has jurisdiction to hear the issue;
- (2) the dispute is real and not theoretical;
- (3) the party raising the issue has a genuine interest in its resolution, and
- (4) where the respondent has an interest in opposing the remedy sought.
A fifth requirement that is is sometimes added is that “[a] declaration will 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 at para 11.
This blog post was originally posted on slaw.ca (Canada’s largest online legal magazine).