May 12, 2009

NS Process– Declaratory Judgements

Filed under: 1 — ruleswatch @ 9:18 pm


A 2007 decision of Justice Gregory Warner in Wickwire Holm v. Nova Scotia (Attorney General) 2007 NSSC 287 is a thorough and careful review of the jurisdiction of the province’s Small Claims Court, contempt power and the thorny problems of bridging gaps in the statute creating the court.*

The decision is handy for another reason. In one or two areas it presents helpful summaries of law, in particular in the area of declaratory relief. The segment is useful and handy to set aside:

Entitlement to Declaratory Relief

The Applicant seeks a declaration that, in directing the Sheriff not to enforce orders of Adjudicators of the Small Claims Court of Nova Scotia, the Department of Justice acted without statutory authority which amounts to an abuse of discretion.




The Applicant has not provided a full record of the various proceedings before the Small Claims Court involving the applicant and debtor. The Applicant says that the proceedings before the Small Claims Court, and the jurisdiction of the Small Claims Court to make the March 21, 2006 order or any other order, is irrelevant to the application.




This application is, in my view, a request for judicial review of the decision of the Department of Justice not to enforce the Small Claims Court Order. The applicant’s express limitation on the remedies it seeks does not change the essential character of the application. The approach to applications for declaratory relief and their characterization, as part of an analysis of the “essential” nature of claims against government actions in the Federal, Ontario, and British Columbia courts, is canvassed by Michael Morris and Roy Lee in “Civil Action Challenges to Government Decisions”, an article in 20 C.J.A.L.P. 117-216 (July 2007). The writers suggest that the caselaw is evolving towards the view that if the essential character of the dispute, regardless of the pleadings, is fundamentally one of public law, then the appropriate procedure is judicial review, an important component of which is declaratory relief.




The Judicature Act of the Province of Nova Scotia gives the Supreme Court jurisdiction to deal with prerogative writs including applications for declarations, and Civil Procedure Rule 5.14 provides:

No proceeding shall be open to objection on the ground that only a 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.




The granting of a declaratory judgment is discretionary. In many circumstances, for reasons other than the merits of the application, courts have declined to grant declaratory judgments as stand-alone remedies.




Clear and helpful statements of the law are contained in the following:


Canada v. Solosky,


Kourtessis v. MNR,


The Law of Declaratory Judgments, Second Edition, by Lazar Sarna (Carswell: 1988), and in particular chapters 2, 3 and 7; and


Judicial Review of Administrative Action in Canada by Donald Brown and the Honourable John Evans (Canvasback Publishing: Toronto: Looseleaf July 2007), chapters 1:6000-1:7330 and chapter 3.



64 [1980] 1 S.C.R. 821; [1993] 2 S.C.R. 53;

Because the Departmental directive was based in part upon concern about the jurisdiction of the court, and the effect of the order on the “liberty of the person”, Charter values and issues are engaged. Courts have declared declarations to be an appropriate remedy in dealing with unconstitutional conduct of government. See for example, Mahe v. Alberta 65 [1990] 1 S.C.R. 342, Eldridge v. B.C. [1997] 3 S.C.R. 624, and Little Sisters v. Canada 2000 S.C.C. 69.
Examples of circumstances where courts decide not to grant declarations include: where the applicant has no special interest (standing) in respect of the subject matter, where other remedies are available or more appropriate, where there are no live issues between the parties, where the application is not timely, and where the application is interlocutory or a preliminary step to a further remedy. There is no limit to the reasons. On the other hand, the usefulness of the remedy is exemplified by the quotation from Wade and Forsythe’s text set out at para. 18 in Krause v. Canada 66 (1999), 236 N.R. 317 (F.C.A.).
In Canada v. Solosky, at para. 11, the Supreme Court wrote:

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.



67 Lazar Sarna writes at page 18:

… the discretion of the court is almost unlimited and should not be continually used to deny declaratory relief. … It is as well a question of law and not discretion that no declaration issue where the fundamental elements of a proceeding are absent or irregular, … The power to issue declarations without consequential relief does not enable the court to create its own powers: but within the apparent scope of the declaratory jurisdiction judicial discretion is the sole determinant of the life of the recourse.

Sarna cites Russian Commercial & Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 at 447-48 (H.L.) as follows:

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 …



68 At page 21 he cites Madam Justice Wilson of the Supreme Court in Operation Dismantle Inc. v. R. [1985] 1 S.C.R. 441 at page 446 as follows:

The real issue … is not the ability of judicial tribunals to make a decision on the questions presented, but the appropriateness of the use of judicial techniques for such purposes.



69 Sarna goes on at page 22:

While the court has an extremely wide jurisdiction, it will not entertain an action or a motion seeking relief where there is no dispute between the parties, ….

… the applicant and respondent (must) demonstrate some necessity for judgment … The proceeding must allege facts underpinning the claim; to allege a conflict of laws, bereft of facts, is insufficient.

A proper case for a declaratory judgment generally requires some privity in law between parties concerned, an existent right and an interference or dispute concerning the right.




In Administrative Law in Canada, Third Edition (Butterworths: 2001), Sara Blake writes at page 205:

Declarations are not made on matters of morality, wisdom or policy. Court will make declarations only on questions of law. As courts prefer not to involve themselves in academic exercises, declaratory relief must be necessary to resolve a party’s rights with respect to an actual exercise of statutory powers.


* This decision was commented on in broader context elsewhere:

The Lawyers Weekly
Vol. 27, No. 30
(December 7, 2007)




Declaratory relief is alive and well in Nova Scotia to supplement more traditional judicial review in the use, and misuse, of statutory powers.

In Wickwire Holm v. Attorney General of Nova Scotia, [2007] N.S.J. No. 405, Supreme Court Justice Gregory Warner, has pointedly emphasized to the province’s sheriffs and attorney general, that even in small claims proceedings, under court orders, deputies are to take direction from the courts, not the government.

The “rule of law and constitutional principle of separation of power is in jeopardy when the executive branch of government interferes with the execution, by court officers, of core functions of the court,” the judge said as he declared a unilateral government directive to sheriffs not to execute certain small claims court orders unlawful. “The Small Claims Court is entitled to have its orders respected in the same manner as other courts and tribunals until and unless its orders are stayed, reversed by appeal …”

Significantly, the message was delivered in form of a declaratory judgement. The remedy yet again proved its worth, this time where a confused, some might even say obstructed, procedural history had blocked the opportunity for certiorari or mandamas, classical instruments of judicial review. The case cried out for them.

Wickwire’s history lay in rickety, poorly constructed amendments to small claims legislation in Nova Scotia that had been allowed to languish for years, casting doubt over how orders of the small claims court should be enforced. Throughout, small claims litigants, lawyers and adjudicators, now exercising up to $25,000 damages jurisdiction, had all been left scratching their heads on the extent of the small claims court’s power to enforce its own orders.

In Wickwire Holm, the law firm which had taxed its account (small claims court adjudicators are taxing officers in Nova Scotia) found that its one-time client, Wilkes, had not only failed to pay his bill, failed to show for taxation, and failed to respond to judgement but had also, less than surprisingly, failed to show up for a small claims court-ordered examination in aid of execution.

The adjudicator took the small claims legislation at its apparent word and ordered Wilkes brought before the court to show cause why he should not be found in contempt.

On the state of the legislation, no one would have given odds on the ultimate success of the order, although no one would have dismissed it out of hand either. But at the same time, the law firm and its determined counsel, Janet Stevenson, had no intention of letting Wilkes or his unpaid account lie.

Matters proceeded as of course, until the time came for the adjudicator’s order to be enforced. Then, nothing happened.

Unknown to counsel, the parties or the adjudicator, the department of justice had its own doubts about the statutory propriety of the small claims court’s apparent jurisdiction to entertain contempt proceedings. But for reasons not disclosed in the decision, rather than confronting the issue directly by intervening or by openly inviting mandamus or some other enforcement remedy, justice administrators decided to keep their doubts to themselves.

Instead, in the words of the decision, “…the Department of Justice dragged its feet.” When the department got word of the intended order, its officials simply issued instructions to sheriffs not to execute certain small claims court enforcement orders such as this until further notice, not being confident of the adjudicator’s authority to do so.

Strikingly, both the justice department and the sheriffs failed to notify anyone else, including the litigant law firm, of much of the directive. Wickwire Holm learned of it only by freedom of information application almost a year later.

By then, outside Nova Scotia’s ironclad six-month limitation period for certiorari, with a facially valid order in hand, and information that its order had been scotched by administrators apparently through the back door, the firm applied in the Supreme Court for declaratory relief that any order of the small claims court be enforced according to its terms.

The technique worked. Moreover, legal logrolling by the province on whether or not declaratory relief should be available to the applicant allowed Justice Warner to give a useful, tight review of the availability of declaratory judgements in challenges alleging unlawful government action.

Citing authority that declaratory relief is an “important component” of judicial review, the court noted the discretionary nature of the remedy where the question presented must be “real and not …theoretical,” there “must be real interest to raise it,” and “necessary to resolve a party’s rights with respect to an actual exercise of statutory powers.”

Administrative lawyers may well want to keep a copy of the decision at hand as a tidy check list of procedural considerations on declaratory relief, and as a handy reference related to ex facie contempt.

Wickwire Holm is not bad either as a refreshing reminder that fundamentals of the rule of law do govern the responsibilities of court officers, that court orders should be obeyed until overturned or stayed, and that the legal system can work to confine unlawful administrative action.

Meanwhile, the status of the past due account or the current whereabouts of Wilkes remains to be reported.

Blair Mitchell is a partner in the Halifax law firm of Mitchell & Ferguson, with a focus on administrative law and civil litigation.



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