THE LIMITS OF THE DECLARATORY JUDGMENT.

• Author: Rowe, Malcolm

Introduction: Purpose and Scope I. The Origins of the Declaratory Judgment in Common Law Canada: Utility, but with Limits A. History in England B. History in Canada II. The Character of Declaratory Relief A. The Bare Declaratory Judgment B. When Courts WHI Exercise Discretion to Grant a DeclaratoryJudgment C. Similarity with Other Legal Concepts D. The Tension Inherent in the Bare Declaratory Judgment E. Determining When a Declaratory Judgment is Appropriate in Light of This Tension III. Declarations of Rights in Contracts and Treaties A. Rights under Contracts B. Rights under Treaties IV. The Character of Declaratory Relief A. Rights under Statutes B. Administrative Action V. Declarations in Constitutional Law Conclusion Introduction: Purpose and Scope

At common law, judicial power is typically limited to what is necessary to resolve the live dispute before the court and to give effect to the legal rights of the parties. This limits judicial power to adjudication, avoids intruding on the law-making function of the legislative branch, preserves judicial resources, and ensures the common law develops incrementally in response to submissions from interested parties in a true adversarial process. There are exceptions to this general rule, such as the court's ability to hear reference questions and moot disputes, but these neither detract from the operation of the general rule, nor do they undermine its rationale.

Judges also have the discretion to grant declaratory judgments. The declaratory judgment is a somewhat recent innovation that permits a party, in certain circumstances, to seek judicial recourse before they have suffered actual damage. It is a determination of rights without consequential relief. Such a declaration by definition has no coercive enforcement mechanism. Thus, a declaration is a remedy that is "available without a cause of action and whether or not any consequential relief is available." (1) The "essence" of a declaratory judgment has been described as "the determination of rights" (2) and "a declaration, confirmation, pronouncement, recognition, witness and judicial support to the legal relationship between parties without an order of enforcement or execution." (3)

As we will explain, declaratory judgments can be highly useful for litigants, but they are also somewhat lacking in doctrinal clarity, raising a number of questions that go to the core of the judicial role. What does it mean to have a legal right, or to declare the existence of a legal right, if that right, while recognized, is not enforced? It has been held that a declaratory judgment is available only when there is a real dispute between the parties, but what is a real legal dispute without legal rights that can be enforced? When is it the business of courts to declare the existence of a right of this nature? We will suggest that rather than understanding legal right and dispute in the strict sense of the terms, the limits of the bare declaratory judgment are better understood as principled reflections of the limits of the judicial role at common law. The incremental approach of the common law is rooted in the idea that the law is best developed in the face of full submissions, a robust record, and interested parties motivated to put the best arguments before the court. So too are the limits of the declaratory judgment. In this way, the limits on the use of the declaratory judgment to some extent parallel the limits on when a court will hear moot disputes or answer reference questions, and the doctrine of justiciability generally. We suggest that the requirement that a legal right be at stake should be understood as standing in for the restraint on judicial power that pervades the common law.

The purpose of this article is to provide an overview of the use of the declaratory judgment, highlighting what its limits can teach us about the limits of the judicial role writ large. The motivation behind this article is to better understand the contours of the judicial role through a study of a remedy that tends to push the boundaries of that role. This article identifies significant outstanding issues, but suggests no resolution. It begins by setting out the history of the declaratory judgment in England and in Canada and traces traditional judicial reluctance to recognize a right without a remedy. It then explores the character of declaratory relief, its similarity with other areas of law, and the tension inherent in declaring rights without a remedy. In the second half of this article, this tension is illustrated through a discussion of recent Canadian cases, mainly at the appellate level, on five topics: declarations about contracts, Aboriginal treaties, statutes, administrative action, and constitutional rights. These cases are examples of problem areas where courts have struggled to frame how and when to determine a right in the absence of consequential relief.

The scope of this article is limited in two ways. First, the discussion of declaratory judgments focuses on the common law provinces, and does not include declaratory judgments under Quebec civil law. This is because the type of declaratory judgment discussed in this article has its roots in the Courts of Chancery and the carrying forward of remedies particular to courts of equity by means of statutory reform in England. (4) Declaratory judgments in Quebec have a different history. Second, while we note that declaratory judgments can also be rendered along with consequential relief, or declare that consequential relief is owed, (5) our focus is on declaratory judgments that do not entail any consequential relief. Throughout, we refer to this type of declaratory judgment as a bare declaratory judgment.

1. The Origins of the Declaratory Judgment in Common Law Canada: Utility, but with Limits

   Declarations, like many equitable remedies, have always been discretionary and provide relief where common law remedies are inadequate to meet the ends of justice. There is some academic debate about whether the declaratory judgment is an equitable recourse or a sui generis remedy, (6) * and the Supreme Court has held that "the consensus in Canada seems to be that the remedy is sui generis." (7) However, it is clear that equitable principles governing the exercise of discretion apply. (8) Like other equitable remedies, declaratory judgments are flexible.

   A declaratory judgment allows parties to determine their rights before the breach of an obligation, and to prevent the violation of a right by ascertaining its scope in advance. The availability of a declaratory judgment even in the absence of a traditional common law cause of action makes declaratory relief a highly useful instrument. Nonetheless, in exercising discretion to grant a declaration, courts maintain key aspects of our system of judicial decision-making, such as an adversarial process.

   The historical development of the declaratory judgment in England, and subsequently in Canada, has been animated by two primary concerns: the practical utility of the declaratory judgment to the parties, and the need to preserve the adversarial nature of judicial proceedings. These concerns can come into tension. The historical development of the declaratory judgment is a story of attempts by legislatures, parties, and courts to normalize the use of the bare declaratory judgment, but at the same time to reconcile the bare declaratory judgment with traditional under standings of the limits of the judicial role. This tension continues to animate the use of the declaratory judgment in Canada today.

   1. History in England

      In both Canada and England, the granting of declaratory judgments is a comparatively recent practice. Traditionally, courts were reluctant to declare a right without any accompanying consequential relief or means to enforce it. (9) In Clough v. Ratcliffe, Vice Chancellor Knight Bruce held that "[n]akedly to declare a right, without doing or directing anything else relating to the right, does not, I conceive, belong to the functions of this Court." (10) This historical reluctance of courts to grant declaratory judgments demonstrated a profound skepticism of the remedy. This skepticism could be attributed to the novelty of the practice, the lack of any clear limits on the practice (making its use hard to control), and the possibility that bare declaratory judgments might encourage frivolous or vexatious litigation. (11) Over time, such a body of jurisprudence standing against the use of declaratory judgments had been established that, as a result, courts were reluctant to deviate from it. For example, in Ferrand v. Wilson, the court referred to "the want of a jurisdiction to ascertain and declare rights before a party interested has actually sustained damage" as "a defect in the jurisprudence of this country," but ultimately declined to grant a declaration. (12) The Court asked rhetorically: "If the Plaintiff [has] sustained no present injury, what case has he for asking the assistance of this Court...?" (13)

      The eventual adoption of the declaratory judgment in England in the 1850s was inspired by its longstanding use in Scotland. (14) The advent of the declaratory judgment in England can be attributed in part to Lord Brougham, who delivered a speech in the House of Commons in 1828 urging the adoption of the Scottish practice of granting declaratory judgments, and introduced bills to this effect. (15)

      In a celebrated case decided by the House of Lords in 1846, Lord Brougham expressed his envy at the availability of declaratory relief in Scotland. He explained its benefits as follows:

      I cannot close my observations in this case without once more expressing my great envy, as an English lawyer, of the Scotch jurisprudence, and of those who enjoy under it the security and the various facilities and conveniences which they have from that most beneficial and most admirably contrived form of proceeding called a declaratory...