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Judicial Declarations/Declaratory Judgements

Declaratory Judgements/Judicial Declarations

Park v Mitchell 2020 BCSC 1147 provides guidance on the law relating to declaratory judgments, a.k.a. judicial declarations.

A judicial declaration is not like a tort where damages are the usual remedy, or a claim for breach of contract where specific performance may be the proper remedy.

A declaratory judgment has no similar common-law or equitable foundation, but instead bases its legal existence upon her role of the Supreme Court (Rule 5(22))

Once the court grants a declaration it is binding on those affected, but unlike a judgment finding a breach of contract and awarding the remedy of specific performance, the declaratory judgment merely declares and goes no further in providing relief to the applicant been stating his or her rights.

A declaration is both the decree that declares an infringement of a right and an order prescribing the remedy.

The granting of a declaration is at the court’s discretion where four criteria are met:

  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. the responding party has an interest in opposing the declaration being sought. Ewart v Canada 2018 SCC 30 at para.81

Where the factors are met, a court looks at the practical value of the declaration in assessing if it should exercise its discretion to grant such a remedy.

A declaration can only be granted if it will have “practical utility”, that is if it will settle a live controversy between the parties.

The court has also phrase the question is whether “a useful purpose would be served” by granting the order. Wakelam v Wyeth Consumer Healthcare 2014 BCCA 36 at para. 71

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