December 5 – Declaratory Relief

“Insofar as declaratory relief is concerned, I note that the jurisprudence is to the effect that the Superior Court’s jurisdiction to grant declaratory relief is not to be exercised in a vacuum; a court must have a reason to exercise its discretion to grant declaratory relief; where legislation exists dealing with the subject matter, the court should consider whether a legislative gap exists that would give rise to a jurisprudential reason for exercising the court’s discretion to grant declaratory relief. See, for example, Danso-Coffey v. Ontario, 2010 ONCA 171 (CanLII), 99 O.R. (3d) 401, at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (2016-Rel. 3), (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can only be granted if it will have practical utility in settling a “live controversy” between the parties: see Daniels v. Canada, 2016 SCC 12 (CanLII), 395 D.L.R. (4th) 381, at para. 11, Khadr v. Canada (Prime Minister), 2010 SCC 3 (CanLII), [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of this jurisprudence was the subject of submissions before us.”

N.L. v. R.R.M., 2016 ONCA 915 (CanLII) at 51