A-127-90
MONTANA BAND, Chief Melvin Potts and Leo
Cattleman, Darrel Strongman, and Maurice
Rabbit, Councillors of the Montana Band, suing
on their own behalf and on behalf of the members
of the Montana Band of Indians,
SAMSON BAND, Chief Jim Omeasoo and Arnup
Louis, Roy Louis, Lawrence Saddleback, George
Saddleback, Victor Bruno, Leo Bruno, Wilson
Okeymow, Brian Lightnigh, Frank Buffalo,
Robert Swampy, Floyd Dion and Stanley Buffalo,
Councillors of the Samson Band, suing on their
own behalf and on behalf of the members of the
Samson Band of Indians,
ERMINESKIN BAND, Chief Arthur Littlechild
and Ken Cutarm, Marvin Littlechild, Eddie Little-
child, Richard Littlechild, Lawrence Wildcat,
Emily Minde, Gerald Wolfe, Rose Makinaw,
Lester Frayne, Maurice Wolfe, Brian Lee and
Gerry Ermineskin, Councillors of the Ermineskin
Band, suing on their own behalf and on behalf of
the members of the Ermineskin Band of Indians,
LOUIS BULL BAND, Chief Simon Threefingers,
and Harvey Roasting, Jonathan Bull, Theresa
Bull, Henry Raine, Stanley Deschamps, George
Deschamps, Jerry Moonais, Herman Roasting,
Councillors of the Louis Bull Band, suing on their
own behalf and on behalf of the members of the
Louis Bull Band of Indians (Appellants) (Plain-
tiffs)
v.
Her Majesty the Queen (Respondent) (Defend-
ant)
INDEXED AS: MONTANA BAND OF INDIANS V. CANADA (CA.)
Court of Appeal, Heald, Hugessen and Stone
JJ.A.—Vancouver, January 29, 1991; Ottawa,
February 18, 1991.
Practice — Pleadings — Motion to strike — Trial Judge
striking amended statement of claim as failing to identify
grievance — Motion under R. 419(1)(a) (pleading disclosing no
reasonable cause of action) — Order set aside by Court of
Appeal — Not persuaded outcome of case "plain and obvious"
— Indian bands seeking declarations (1) undertaking given by
Canada when Rupert's Land surrendered by Hudson's Bay
Company part of Constitution of Canada (2) undertaking
entailing fiduciary obligation (3) certain articles of U.N. cove
nant on civil rights binding on Canada — Court having power
to grant declarations simpliciter.
Judicial review — Equitable remedies — Declarations —
Trial Judge striking out amended statement of claim as failing
to identify grievance — Power of Court to grant declaration
simpliciter not doubted — Appellants seeking binding decla
rations of right under R. 1723 — Necessary requirements for
declaratory action met — Order of Trial Judge set aside.
Native peoples — Lands — Act enabling Her Majesty to
accept surrender from Hudson's Bay Company of Rupert's
Land — Resolution providing for protection of Indian tribes
whose interests and well-being involved in transfer — Indian
bands claiming specific constitutional instruments binding on
Canada — Seeking declaratory relief only — Court of Appeal
reversing Trial Judge's order striking statement of claim.
This was an appeal from an order of the Trial Division
striking out the statement of claim. The appellant Bands,
except for the Montana Band, were aboriginal occupants of
land and territory within the confines of Rupert's Land. In
1867, Her Majesty was asked to unite Rupert's Land and the
North-Western Territory with Canada and to grant to the
Parliament of Canada "authority to legislate for their future
welfare and well-being". In 1868, the Imperial Parliament
passed the Rupert's Land Act, 1868 which enabled Her Majes
ty to accept a surrender from the Hudson's Bay Company of its
lands, privileges and rights in Rupert's Land. On May 28,
1869, the Senate and the House of Commons passed a resolu
tion forcing the Canadian Government to provide for the
"protection of the Indian tribes whose interests and well-being
are involved in the transfer". Rupert's Land and the
North-Western Territory became part of Canada as of July 15,
1870 (the Rupert's Land Order).
The appellants sought declarations that 1) by virtue of the
Constitution Act, 1867, the terms, conditions and obligations of
the Rupert's Land Order became constitutional instruments
binding on Canada and are therefore part of the Constitution of
Canada; 2) the undertaking given by Canada in 1869 entails a
fiduciary obligation to them; and 3) articles 1 and 27 of the
United Nations International Covenant on Civil and Political
Rights are binding on Canada and apply to them. They submit
ted that although, as aboriginal people, they are not a minority
in the usual sense, they are nevertheless a minority for the
purposes of article 27. The respondent contradicted most of the
appellants' allegations as set out in their amended statement of
claim and joined issue on their legal reasoning and conclusions
of law in relation to the relief sought.
Held, the appeal should be allowed.
The respondent moved to strike out the amended statement
of claim under Rule 419(1)(a) on the basis that it disclosed no
reasonable cause of action and the Associate Chief Justice
granted the motion in that the pleading failed to identify any
grievance. A court should allow such motion only in plain and
obvious cases and where satisfied that the case is beyond doubt.
The outcome in the instant case is neither plain and obvious nor
beyond doubt. The power of the Court to grant a declaration
simpliciter herein cannot be doubted. Rule 1723 of the Federal
Court Rules allows the Court to make binding declarations of
right whether or not any consequential relief is or could be
claimed. The appellants are entitled to this kind of binding
declaration. A decision of the House of Lords, Russian Com
mercial and Industrial Bank v. British Bank for Foreign
Trade, set out the test to be applied by a court in considering
the matter of declaratory judgments. The appellants have
satisfied this test: the issues raised by them are real and not
theoretical since they deal with the very large question of
aboriginal rights, the appellants have a vital and real interest in
those issues and finally, the Crown is the proper contradictor,
with a true interest in opposing the declarations sought. The
necessary requirements for a declaratory action have been met
and it is not necessary for the appellants to establish or rely
upon a specific breach of the 1869 undertaking.
The statements in the Supreme Court decision Operation
Dismantle relied upon by the Trial Judge have no application
to the case at bar which is not a Charter case. The appellants
have satisfied the general rules relating to declaratory judg
ments as articulated by Borchard, Declaratory Judgments, and
quoted with approval in Operation Dismantle. The Trial Judge
erred in striking out the amended statement of claim.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], s. 146.
Constitution Act, 1871, 34 & 35 Vict., c. 28 (U.K.)
[R.S.C., 1985, Appendix II, No. 11].
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44].
Federal Court Rules, C.R.C., c. 663, RR. 419, 1723.
Indian Act, R.S.C., 1985, c. I-5.
International Covenant on Civil and Political Rights,
Dec. 19, 1966, [ 1976] Can. T.S. No. 47, ss.
1(1),( 2 ),(3), 27.
Manitoba Act, 1870, S.C. 1870, c. 3 [R.S.C., 1985,
Appendix II, No. 8].
Rupert's Land Act, 1868, R.S.C., 1985, Appendix II,
No. 6.
Rupert's Land and North-Western Territory Order,
R.S.C., 1985, Appendix II, No. 9 (as am. by Canada
Act, 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 3).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Dyson v. Attorney-General [No. 1], [1911] 1 K.B. 410
(C.A.); Dyson v. Attorney-General [No. 2], [1912] I Ch.
158 (C.A.); Russian Commercial and Industrial Bank v.
British Bank for Foreign Trade, [1921] 2 A.C. 438
(H.L.); Solosky v. The Queen, [1980] 1 S.C.R. 821;
(1979), 105 D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16
C.R. (3d) 294; 30 N.R. 380; Jabour v. Law Society of
British Columbia et al., [1982] 2 S.C.R. 307; (1982),
137 D.L.R. (3d) 1; [1982] 5 W.W.R. 289; 37 B.C.L.R.
145; 19 B.L.R. 234; 66 C.P.R. (2d) 1; 43 N.R. 451;
Dumont v. Canada (Attorney General), [1990] 1 S.C.R.
279; [1990] 4 W.W.R. 127.
DISTINGUISHED:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1.
REVERSED:
Montana Band of Indians v. Canada, [1990] 2 F.C. 198
(T.D.).
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1;
33 N.R. 304.
AUTHORS CITED
Borchard, Edwin. Declaratory Judgments, 2nd ed.,
Cleveland: Banks - Baldwin Law Publishing Co., 1941.
COUNSEL:
Thomas R. Berger and R. J. Shulman, for
appellants (plaintiffs).
Duff Friesen, Q. C., for respondent (defend-
ant).
SOLICITORS:
Thomas R. Berger, Vancouver, for appellants
(plaintiffs).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is an appeal from an order of
the Trial Division [[1990] 2 F.C. 198] striking out
the appellants' amended statement of claim herein
dated August 25, 1989.
FACTS
The principal facts as alleged in the amended
statement of claim may be summarized as follows.
The appellant Bands, except for the Montana
Band, are Indian tribes which were, at all material
times, aboriginal occupants of land and territory
within the confines of Rupert's Land.' The Mon-
tana Band was established as a Band within Rup-
ert's Land under the Indian Act [now R.S.C.,
1985, c. I-5] after 1870. The individual appellants
are chiefs and councillors of the appellant Bands
and are suing on their own behalf and on behalf of
all members of their respective Bands.
In 1867, during the first session of the Parlia
ment of Canada, the Senate and the House of
Commons adopted a joint address asking Her
Majesty "to unite Rupert's Land and the North
Western Territory with Canada and to grant to the
Parliament of Canada authority to legislate for
their future welfare and well-being." The Imperial
Parliament then passed the Rupert's Land Act,
1868 [R.S.C., 1985, Appendix II, No. 6] in 1868
which enabled Her Majesty to accept a surrender
from the Hudson's Bay Company, upon terms, of
its lands, privileges and rights in Rupert's Land.
An agreement between the government of Canada
and the Hudson's Bay Company was reached in
1869 for the acquisition of Rupert's Land.
On May 28, 1869, after the execution of that
agreement, the Senate and the House of Commons
passed a number of resolutions relating to the
' By Royal Charter dated May 2, 1670, King Charles II
granted to the Governor and Company of Adventurers Trading
into Hudson's Bay certain rights, including exclusive trading
privileges, over a vast tract of land draining into Hudson's Bay.
That territory was thereafter described as Rupert's Land.
admission into Canada of Rupert's Land and the
North-Western Territory. One of these resolutions
which applied to all the tribes of Rupert's Land
stated:
That upon the transference of the territories in question to the
Canadian Government, it will be the duty of the Government to
make adequate provision for the protection of the Indian tribes
whose interests and well-being are involved in the transfer.
On May 29 and 31, 1869, the Senate and the
House of Commons adopted a second address to
Her Majesty wherein the above resolution was
repeated. 2 On November 19, 1869, the Hudson's
Bay Company surrendered, by deed, to the British
Crown, all its rights in Rupert's Land which had
been granted to it by the Charter of 1670. On June
23, 1870, Rupert's Land and the North-Western
Territory were admitted into Canada as of July 15,
1870 (the Rupert's Land and North-Western Ter
ritory Order [R.S.C., 1985, Appendix II, No. 9]
(as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 3)).
The appellants plead that by virtue of section
146 of the Constitution Act, 1867 [30 & 31 Vict.,
c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c.
11 (U.K.), Schedule to the Constitution Act, 1982,
Item 1) [R.S.C., 1985, Appendix II, No. 5]] the
terms, conditions and obligations of the Rupert's
Land Order were assumed by the Government of
Canada in relation to the Indian tribes of Rupert's
Land and thereby became constitutional instru
ments binding on Canada as well as on the prov
inces of Canada. The appellants plead, further,
that the Rupert's Land Order became a part of
Canada's Constitution by virtue of the Constitu
tion Act, 1867. In the view of the appellants, their
position in this regard is supported by the fact that
section 52 of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44] provides that the acts
and orders set out in Schedule I to the Act are part
of the Constitution of Canada (and therefore the
supreme law of Canada) and by the further fact
2 The amended statement of claim alleges (paragraph 20)
that the undertaking by the Government of Canada contained
in this resolution was approved by Her Majesty.
that the Rupert's Land Order is set out in
Schedule I.
The appellants also rely on articles 1 and 27 of
the United Nations International Covenant on
Civil and Political Rights [Dec. 19, 1966, [ 1976]
Can. T.S. No. 47] and submit that these articles
are binding on Canada and apply to these
appellants.' Their submission is that although, as
aboriginal people, they are not a minority in the
usual sense, they are, nevertheless, a minority for
the purposes of article 27. On this view of the
matter, their culture has a material basis entitling
them to the benefit of article 27 since land and
traditional economic opportunities are essential to
the maintenance of that culture. The appellants
maintain that since the United Nations Interna
tional Covenant was ratified by Canada on May
16, 1976 and pursuant to customary international
law, the Covenant is binding on Canada.
The appellants sought the following declara
tions, inter alla, in their amended statement of
claim:
(a) that the undertaking given by Canada in
1869 was incorporated by reference in the Rup-
ert's Land Order of 1870 and is therefore part of
the Constitution of Canada;
3 Articles I and 27 read:
ARTICLE I
I. All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obliga
tions arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of
subsistence.
3. The States Parties to the present Covenant, including
those having responsibility for the administration of Non-Self-
Governing and Trust Territories shall promote the realization
of the right of self determination, and shall respect that right,
in conformity with the provisions of the Charter of the United
Nations.
ARTICLE 27
In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other
members of their group, to enjoy their own culture, to
profess and practise their own religion, or to use their own
language.
(b) that the undertaking given by Canada in
1869 entails a fiduciary obligation to the appel
lants; and
(c) that article 1 and article 27 of the United
Nations International Covenant on Civil and
Political Rights are binding on Canada and that
they apply to the appellants.
The appellants' prayer for relief seeks only
declaratory relief. The respondent, in her state
ment of defence, contradicts most of the appel
lants' allegations as set out in the statement of
claim and joins issue with the appellants on their
"legal reasoning and conclusions of law in relation
to the relief sought".
THE JUDGMENT OF THE TRIAL DIVISION
The learned Associate Chief Justice decided to
strike out the amended statement of claim herein
because it failed to identify any grievance. After
quoting extensively from the reasons of Dickson J.
[as he then was] in the Operation Dismantle Inc.
et al. v. The Queen et al. decision, 4 he went on to
state:
Counsel acknowledges that the intention of the plaintiffs should
they succeed in the present claim for declaratory judgment is to
assess the next step, perhaps negotiation, perhaps further litiga
tion. But trial courts ought to avoid any such two-phase pro
cess. The defendant is entitled to know the full case it has to
meet. Indeed, any party must have a full understanding of the
consequences of the failure to defend or to concede defeat on
any aspect of the litigation. The role of the trial court is to
resolve disputes where parties are unable to do so themselves.
How is this possible if the dispute is not identified in the
statement of claim?
Accordingly, I have reached the conclusion that the action in
its present form, devoid of any grievance between the parties,
cannot proceed.
ANALYSIS
The respondent's motion to strike was made
pursuant to Rule 419(1)(a) [Federal Court Rules,
C.R.C., c. 663] on the basis that the amended
statement of claim disclosed no reasonable cause
of action. On such a motion all the facts pleaded in
4 [1985] 1 S.C.R. 441, at pp. 456-457.
the statement of claim must be deemed to have
been proven.' Furthermore, a court should strike
the statement of claim only in plain and obvious
cases and where the court is satisfied that "the
case is beyond doubt." 6
With every deference, I am unable to agree with
the conclusion reached by the Associate Chief
Justice. On the facts alleged in the amended state
ment of claim, I am not persuaded that the out
come in the case is "plain and obvious" or "beyond
doubt." In the recent case of Dumont v. Canada
(Attorney General),' the issues raised by the
impugned statement of claim involved the proper
interpretation of the Manitoba Act, 1870, S.C.
1870, c. 3 [R.S.C., 1985, Appendix II, No. 8] and
the Constitution Act, 1871, 34 & 35 Vict., c. 28
(U.K.) [R.S.C., 1985, Appendix II, No. 11] and
the effect of the impugned ancillary legislation
upon them. In delivering the judgment of the
Supreme Court of Canada, Wilson J. stated that
such issues "would appear to be better determined
at trial where a proper factual base can be laid."
She added (at page 280):
The Court is of the view also that the subject matter of dispute,
inasmuch as it involves the constitutionality of legislation ancil
lary to the Manitoba Act, 1870 is justiciable in the courts and
that declaratory relief may be granted in the discretion of the
court in aid of extra-judicial claims in an appropriate case.
The situation at bar is not dissimilar. As noted
by the Associate Chief Justice, the appellants rely
on a complex series of constitutional instruments
in support of the declarations sought.
This is also a case where counsel for the appel
lants has stated clearly that if the declarations
sought are obtained, they might well be used in
support of "extra-judicial claims." In such an
eventuality, there might never be a second phase to
the process as visualized by the Associate Chief
5 See Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [1980] 2 S.C.R. 735, at p. 740, per Estey J.
6 See the Inuit case, supra, also at p. 740, per Estey J.
[1990] 1 S.C.R. 279, at pp. 280-281.
Justice. Negotiated settlements of aboriginal
claims are a distinct possibility in today's reality.
The power of the Court to grant a declaration
simpliciter in the present situation cannot be
doubted. Federal Court Rule 1723 provides:
Rule 1723. No action shall be open to objection on the ground
that a merely declaratory judgment or order is sought thereby,
and the Court may make binding declarations of right whether
or not any consequential relief is or could be claimed.
These appellants are asking for precisely the kind
of binding delcarations of right contemplated by
Rule 1723. The leading decisions in the common
law for declaratory relief are the Dyson decisions.'
Dyson [No. 1] decided that the rule at issue in that
case (which is virtually identical to Rule 1723)
permitted the Court to issue a purely declaratory
judgment. Dyson [No. 2] held that since a plaintiff
has the right to sue the Crown for a declaration, he
is entitled to proceed for a declaration simpliciter
without seeking any additional relief.
To the same effect is the decision of the House
of Lords in the case of Russian Commercial and
Industrial Bank v. British Bank for Foreign
Trade. 9 In that case an English Bank had obtained
a loan from a Russian Bank on the security of
certain bonds. At issue was the construction of a
provision in the contract as to whether the loan
was repayable in roubles or in sterling. The bor
rowers commenced an action against the lenders
for a declaration that they were entitled to retake
possession of the bonds upon payment of the
amount of the loan in roubles.
Lord Dunedin set out the test to be applied by a
court in considering the matter of declaratory
judgments as follows [at page 448]:
The question must be a real and not a theoretical question; the
person raising it must have a real interest to raise it; he must be
able to secure a proper contradictor, that is to say, some one
8 Dyson v. Attorney-General [No. 1.], [1911] 1 K.B. 410
(C.A.), at p. 417, per Cozens-Hardy M.R. See also Dyson v.
Attorney-General [No. 2], [1912] 1 Ch. 158 (C.A.), at pp.
166-168.
9 [1921] 2 A.C. 438 (H.L.), at p. 448.
presently existing who has a true interest to oppose the declara
tion sought.
I have no problem whatsoever in concluding that
the appellants at bar satisfy this text. The issues
raised by these appellants are certainly real and
not theoretical since, at bottom, the central issue
raised is the very large question of aboriginal
rights. The appellants most certainly have a vital
and real interest in those issues since they are
chiefs, councillors and members of the Indian
Bands resident in the areas of Canada encom
passed by the Rupert's Land Order. Finally, the
respondent Crown is most certainly the proper
contradictor, with a true interest in opposing the
declarations being sought.
As pointed out by counsel for the appellants,
there was no breach in the Russian Bank case. I
agree with counsel that in the case at bar, these
appellants need not in this action for a declaratory
judgment point to a specific breach of the 1869
undertaking. The necessary requirements for a
declaratory action have been satisfied and, in my
view, it is not necessary for the appellants to
establish or rely upon a breach. The issues here are
real, the appellants have a substantial interest
therein, and the logical and proper contradictor is
in place. Additionally, it must be remembered that
the respondent has joined issue with the appellants
on their alleged rights and entitlements. I would
add further that the Supreme Court of Canada has
approved of the test set out by Lord Dunedin in
the Russian Commercial Bank case in the case of
Solosky v. The Queen. 10 Mr. Justice Dickson pre
faced his reliance on the Russian Commercial
Bank test with the following comments (at page
830):
Declaratory relief is a remedy neither constrained by form nor
bounded by substantive content, which avails 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.
In my view and for the reasons given supra, it
cannot be fairly argued that the appellants at bar
do not satisfy this definition.
10 [1980] 1 S.C.R. 821, at p. 830 per Dickson J.
I noted earlier that the Associate Chief Justice
relied heavily on the majority judgment of the
Supreme Court of Canada in the Operation Dis
mantle case. In Operation Dismantle, the appel
lants alleged that a decision made by the Canadian
government to allow the U.S.A. to test cruise
missiles in Canada violated section 7 of the Chart
er. The appellants submitted that the development
of the cruise missile heightened the risk of nuclear
war. They submitted further that the increased
American military presence and interest in
Canada as a result of the testing made Canada a
more likely target for nuclear attack. The appel
lants sought declaratory relief, an injunction and
damages. The passage relied on by the Associate
Chief Justice from the judgment of Dickson J. at
page 456 is written in the context of whether or
not the duties of the executive under section 7 of
the Charter can be interpreted so widely as to
include a duty "on the basis of speculation and
hypothesis about possible effects of government
action." It seems clear that in any case where it is
alleged that legislation is inconsistent with the
Charter, a violation of a Charter right must be
alleged. Wilson J. put the matter succinctly in the
Operation Dismantle case where she said (at page
481):
... whenever a litigant raises a "serious constitutional issue"
involving a violation of the Charter or the Canadian Bill of
Rights then, since what is being complained of is an alleged
violation of a right, it follows almost by definition that the
nature of the alleged violation must be asserted.
In my view, the statements relied on by the
Associate Chief Justice from the Operation Dis
mantle decision have no application to the case at
bar. This is not a Charter case. I think, rather,
that the general rules relating to declaratory judg
ments should apply to the situation in this case.
Those general rules are well stated at pages 48 and
49 of Borchard, Declaratory Judgments (2nd ed.
1941):
It is an essential condition of the right to invoke judicial
relief that the plaintiff have a protectible interest. The fact that
under declaratory procedure so many types of legal issues are
presentable for determination which are incapable of any other
form of relief, has imposed upon the courts at the outset the
function of determining whether the facts justify the grant of
judicial relief, and more particularly, whether the plaintiff has
a "legal interest" in the relief he seeks. In the more familiar
executory action, the legal interest is sought in the "cause of
action," but, as already observed, the narrow scope often given
to this ambiguous term has served to conceal from view the
many occasions and situations in which a plaintiff not yet
physically injured or one seeking escape from dilemma and
uncertainty by a clarification of his legal position has need for
judicial relief not of the traditional kind. The wider opportunity
and necessity for judicial usefulness disclosed by the declarato-
ry judgment make necessary either a more flexible and compre
hensive connotation of the term "cause of action" or the
employment of a less chameleonic term to indicate when the
petitioner may be accorded judicial protection. Without losing
sight of the necessity for jurisdictional facts, it is suggested that
the term "legal interest" meets the need.
In my view, the appellants have satisfied the
general rule articulated by Borchard supra, and
quoted with approval by Wilson J. in Operation
Dismantle at page 480. For these reasons, then, I
have concluded that the Associate Chief Justice
erred in striking the appellants' amended state
ment of claim herein.
The situation in this case is not unlike the
situation in the Tabour case." In that case, the
relief sought was certain declarations together
with an injunction restraining the conduct of an
inquiry. Mr. Justice Estey, in delivering the judg
ment of the Court had the following comments to
make concerning declaratory actions at page 323:
The declaratory action has long been known to the courts
here and in the United Kingdom. In its modern form it is
epitomized in the case of Dyson v. Attorney-General, [1911] 1
K.B. 410 (C.A.), where the courts found the plaintiff entitled to
proceed against the Crown for a declaration without proceeding
by way of petition of right. Cozens-Hardy M.R., at p. 416,
recognized the court's jurisdiction to receive such a case " .. .
although the immediate and sole object of the suit is to affect
the rights of the Crown in favour of the plaintiffs". This form
of action takes on much greater significance in a federal system
where it has been found to be efficient as a means of challeng
ing the constitutionality of legislation. Vide Thorson v. Attor
ney General of Canada, [1975] 1 S.C.R. 138, per Laskin J. (as
he then was) at p. 162; and Wade, Administrative Law, 4th ed.,
p. 500.
And then, at page 326, he said:
The claims for declaration made here are unaccompanied by
any claim for recovery of property or rights from the defend
" Jabour v. Law Society of British Columbia et al., [ 1982] 2
S.C.R. 307.
ants in the action but are indeed the core of the action, the only
goal sought by the plaintiffs (respondents).
CONCLUSION
For all of the foregoing reasons, I have conclud
ed that the appeal should be allowed with costs
and the order of the Trial Division herein dated
February 16, 1990 striking out the appellants'
amended statement of claim be set aside.
HUGESSEN J.A.: I agree.
STONE J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.