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Summary

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Civil procedure – Pleadings – Standing – Declaratory judgments – Jurisdiction – Applicants’ statement of claim struck out without leave to amend pursuant to s. 221 of the Federal Courts Rules, SOR/98-106 – Is the right to seek justiciable declaratory constitutional relief, particularly in public interest litigation, irreconcilable with the pre-Patriation notion of “private reference” (or “free-standing” or “advisory” opinion)? – Is the right to seek declaratory constitutional relief, in respect of the budgetary process and the legislative provisions of the Bank of Canada Act, R.C.S. 1985, c. B-2, foreclosed by a successful underlying cause of action for damages tied to the declaratory relief?

The applicants commenced an action against the respondents. They sought declarations of violations of the Bank of Canada Act, R.C.S. 1985, c. B-2; the Constitution Act, 1867, (U.K), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5; ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; and of tortious conduct of conspiracy and misfeasance in public office. The applicants sought damages for the violations alleged.

The respondents brought a motion to strike. The Federal Court Prothonotary struck out the original statement of claim in its entirety without leave to amend on the basis that the claim did not disclose a reasonable cause of action. On appeal from the Prothonotary’s decision, the Federal Court judge agreed that the claim should be struck but granted leave to amend the pleadings. The Federal Court of Appeal dismissed the appeal and cross-appeal from that decision.

The applicants filed an amended statement of claim where they abandoned prior Charter claims and added a claim pursuant to s. 3 of the Charter, asserting a right to “no taxation without representation”. The respondents again moved to have the statement of claim struck on the basis that the applicants failed to rectify any of the previous deficiencies in the pleadings, and that the claim therefore disclosed no reasonable cause of action.

Lower Court Rulings