COMMENTS
COMMENTAIRES
Blaikie and Forest: The Declaratory Action as a Remedy
against Unconstitutional Legislation
Introduction
The decisions of the Supreme Court of Canada in Le Procureur
g~ngral de la Province de Quebec v. Blaikie’ and Attorney-General
of Manitoba v. Forest2 mark the first occasions on which major
constitutional decisions against the validity of legislation have been
rendered by the Court as a result of privately initiated declaratory
proceedings since the Court developed its liberalized approach to
such proceedings in Thorson v. Attorney-General of Canada (No.
2) 3 and Nova Scotia Board of Censors v. McNeil.4 Although the basis
for jurisdiction in the Blaikie case was that the plaintiffs had shown
“ufficient interest” under article 55 of the Code de procddure
civile of Quebec,5 and not the McNeil and Thorson precedents, it
seems fair to suggest that the spirit of the Thorson and McNeil
Nota: The author had an opportunity to follow closely the course of
litigation over the constitutionality of the Manitoba and Quebec official
language statutes while maintaining a watching brief on this litigation
(including the case of Le Bureau m~tropolitain des dcoles protestantes de
Montrdal v. Le Ministre de l’Education de la Province de Quebec [1976] C.S.
430, 83 D.L.R. (3d) 645, which is not discussed in this article) on behalf of
the New Brunswick Department of Justice from 1975 to 1978. While it was not
directly related to the preparation of this comment, the cooperation of
the parties and counsel involved in that litigation provided valuable back-
ground material. In light of this, the author would like to take this oppor-
tunity to thank all of those whose assistance he received, in particular,
Robert J. Stocks, Peter E. Graham, Roger Thibaudeau Q.C., Robert S.
Litvack, Rodolphe Bilodeau and Raynold Langlois of the Quebec Bar,
A.J.J. Hogue, R.D. Gibson and JA. Scollin Q.C. of the Manitoba Bar, counsel
for various parties, and J. Fernand Landry of the New Brunswick Bar,
William G. Webster of the Manitoba Bar and Armand L.C. de Mestral of
the Quebec Bar, who worked with him at various stages on the watching
brief.
1(1979) 101 D.L.R. (3d) 394 (S.C.C.).
2 (1979) 101 D.L.R. (3d) 385 (S.C.C.).
8 [1975] 1 S.C.R. 138.
4 [1976) 2 S.C.R. 265.
5 L.R.Q., c. C-25 [hereinafter cited as Code de procddure civile].
McGILL LAW JOURNAL
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rulings probably influenced the decision of Desch~nes C.J.S.C. to
accept jurisdiction.6 Jurisdiction in the Forest case depended on the
Thorson and McNeil rulings. 7 In light of this, and in view of the
purely declaratory relief granted by the Supreme Court in both
cases, these two decisions provide a useful case study of the
efficacy of the Thorson and McNeil type of proceeding.8
Two features of the language law litigation in particular provide
interesting subjects for such study. First, there is the significance
of the procedural complications faced by Forest in getting his
declaratory action before the courts. Second, there is the role of
the declaratory remedy itself as an end point of major litigation.
This comment will study each of these features in turn, and then
make some proposals for future development of the Thorson and
McNeil type of action on the basis of the Blaikie and Forest cases.
I. Procedural complications
Forest’s legal battle began with a unilingual municipal parking
ticket in 1976. Since Forest was a resident of the St. Boniface area
of Winnipeg, he initially objected to the ticket on the basis of a
provision in the City of Winnipeg Act9 which required that municipal
notices to residents of St. Boniface be bilingual. This objection was
broadened at the initial hearing of his case to include reference
to section 23 of the Manitoba Act, 10 which authorizes the use of
both English and French in court proceedings in Manitoba. After
having been convicted by the Provincial Court on the parking
charge, Forest further widened his attack on unilingualism in the
Manitoba legal system by filing an appeal written in French to
6 Blaikie v. Procureur gdndral de la Province de Qudbec [1978] C.S. 37, 85
D.L.R. (3d) 252 [hereinafter cited to C.S.].
7 Forest v. Attorney-General of Manitoba (1979) 98 D.L.R. (3d) 405 (Man.
C.A.).8 Ultimately, the declaratory proceedings in Thorson and McNeil failed on
the merits. While such proceedings can be efficacious in the sense that they
resolve doubts about the validity of legislation and thus tell people who
may have been uncertain whether they should obey it, for most practical
purposes nothing changes as a result of a declaratory action upholding the
constitutionality of a challenged statute. The statute continues to be enforced
as it would have been if not challenged. Identifiable results which enable
one to assess the efficacy of the declaratory action really ocour only when
the challenged statute is struck down. Moreover, the Thorson and McNeil
cases have received relatively little academic comment in this regard. The
only substantial discussion the author has found is that of Mullan, Standing
After McNeil (1976) 8 Ott. L. Rev. 32.
9 S.M. 1971, c. 105, s. 80(3).
10 S.C. 1870, c. 3 (R.S.C. 1970, App. II, No. 8).
19801
COMMENTS – COMMENTAIRES
the County Court. At this stage, he was no longer relying on the
City of Winnipeg Act, which clearly had nothing to do with judicial
appeal proceedings. Thus, the constitutionality of.the Official Langu-
age Act of Manitoba,” which restricted court proceedings to
English, was unavoidably at issue. The County Court rejected the
ruling that the
Crown’s objections
Official Language Act was unconstitutional because of conflict with
section 23 of the Manitoba Act.”
the appeal document,
to
At this point, the Government of Manitoba took the position
that it would agree to proceeding in French in Forest’s case
without appealing this preliminary decision, but did not consider
this case as. a binding precedent for other litigation. Faced with
this attitude, Forest broadened his own attack by seeking French
copies of the statutes relevant to his parking ticket case. This
brought into issue a second aspect of the conflict between section
23 of the Manitoba Act and the Official Language Act of Manitoba,
namely, the language of legislation. When his request for French
statutes was turned down except on condition he undertake to pay
translation costs, Forest began an application to the Court of
Queen’s Bench for an order of mandamus requiring that French
statutes be provided to him. He integrated his claim with his initial
attack on the language of court proceedings by attempting to file
his application in French. Court officials refused to accept the
documents for filing, apparently on the basis that this was contrary
to the Manitoba Official Language Act. He then tried to file in the
Court of Appeal, which also had original jurisdiction over man-
damus applications. Again, court officials refused to allow filing
in view of the Official Language Act of Manitoba, and on the basis
that to allow filing of French documents would be to prejudge
the constitutionality of that Act.
Forest then initiated another preliminary proceeding by asking
the Court of Appeal to order its officials to file his mandamus
application. This effectively narrowed the immediate issue once
again to the language of the courts, although the language of
legislation would have been at issue in the principal proceeding
if Forest had succeeded on the preliminary issue. The Court of
Appeal avoided the language issue at this stage. Recognizing that,
ultimately, the entire validity of the Official Language Act of
Manitoba was at stake in the proceedings before it, the Court
accepted the Attorney-General’s argument that it was not a con-
venient forum at this stage, since there might be a need to call
11 R.S.M. 1970, c. 0-10.
12 R. v. Forest (1977) 74 D.L.R. (3d) 704 (Man. Co. Ct).
McGILL LAW JOURNAL
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evidence, particularly with respect to the language of legislation,
and the Court of Queen’s Bench was better equipped for that
purpose. In addition, the Court indicated a preference to hear the
opinion of the trial court on the substantive issues in order to
ensure the fullest consideration of the case.13
Forest, once again, altered his legal strategy and began an action
in the Court of Queen’s Bench to have the Official Language Act of
Manitoba declared ultra vires, basing his standing on the Thorson
and McNeil decisions. At the outset, he was denied a decision on
the substantive issues when the Court refused to grant standing. 4
This decision was based on the availability of other proceedings in
which Forest did have standing as a mechanism for determining the
issues, for example, the mandamus application which had not
been pursued. Moreover, the Court noted that, in part, Forest
was actually attempting to litigate an issue on which he already
had a decision in his favour in the parking ticket proceeding.15
The Court of Appeal, however, granted standing under Thorson
and McNeil.16 They proceeded to hear and determine the substantive
issue of the constitutionality of the Official Language Act of Mani-
toba. Beginning at this point, Forest’s case proceeded expeditiously
to the Supreme Court of Canada a few months later.’ 7
The course of the Blaikie litigation stands in sharp contrast.
The plaintiffs began an ordinary action for a declaration that
Chapter III of the Charte de la langue frangaise’l was unconstitu-
tional. Standing was granted on the basis that the plaintiffs had a
sufficient interest to maintain the action. The case then proceeded
in due course through a trial 9 and appeals to the Quebec Court
of Appeal20 and the Supreme Court of Canada.’
In commenting upon the procedural complications of the Forest
case, it is necessary to note at the outset that much of the proce-
dural difficulty which Forest experienced was more a result of his
litigation strategy, than a necessary feature of a Thorson and
McNeil proceeding. Forest appears to have developed his litigation
“3Re Forest and Registrar of Court of Appeal of Manitoba (1976) 77 D.L.R.
(3d) 445 (Man. CA.).
14Forest v. Attorney-General of Manitoba (1978) 90 D.L.R. 230 (Man. Q.B.).
15 Ibid., 234-5, 237.
16Supra, note 7.
1’Supra, note 2.
18L.R.Q., c. C-11, arts 7-13.
19 Supra, note 6.
20 Procureur gdndral du Qudbec v. Blaikie [1978J CA. 351, 95 D.L.R. (3d>
21Supra, note 1.
42.
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COMMENTS COMMENTAIRES
strategy as he went along, rather than to have planned
it in
advance. Many of the delays he experienced were as a result of
major shifts in strategy. In particular, he became involved, at
different points of time, in three completely separate proceedings –
the parking ticket charges, the application for mandamus, and the
action for a declaratory judgement. Moreover, the delays were
actually encountered in proceedings in which his standing under
Thorson and McNeil were not at issue. In both the parking ticket
case and the application for mandamus, Forest had standing in the
traditional sense. After he initiated his “Thorson and McNeil pro-
ceeding”, the matter proceeded with relative celerity.
Forest’s experience in the earlier proceedings is nonetheless
relevant to the study of this case as a Thorson and McNeil action.
One of the considerations in granting standing in such an action
is an assessment of the prospects that the justiciable issue may be
resolved in a proceeding on the initiative of someone with normal
standing. While no rigid requirement is stipulated, the courts are
obviously interested in whether the plaintiff in the declaratory
action has explored other ways of having the issue resolved.2 2 In
light of Thorson,3 McNeiP4 and Forest,5 the critical requirement
may simply be that the plaintiff request the Attorney-General to
initiate proceedings. Since the Attorney-General traditionally has
standing to raise such issuesof public right, this would be a require-
ment grounded in plain common sense. On the other hand, it is
questionable whether this formal preliminary step and a refusal
by the Attorney-General to undertake the action are all that enter
into the assessment of whether there is a lack of alternative pro-
ceedings to test the constitutionality of legislation. It seems more
likely that the courts will consider in broad terms whether some
other proceeding provides a realistic and more appropriate method
to resolve the matter.
As long as it appears that the courts prefer other proceedings
to Thorson and McNeil actions as a means of resolving constitu-
tional questions, persons wishing to raise such issues are likely
to attempt such proceedings, if possible, before they launch a
Thorson and McNeil action. The Manitoba Court of Appeal seemed
to be strongly influenced by the overall difficulties that Forest had
already encountered, even though it indicated that the refusal of
22 See Thorson, supra, note 3, 161; McNeil, supra, note 4, 271. See also
Mullan, supra, note 8, 39-41.
23 Supra, note 3, 146.
24Supra, note 4, 268.
25Supra, note 7, 409.
McGILL LAW JOURNAL
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the Attorney-General to initiate proceedings was controlling. Thus,
the experience of Forest leaves future litigants in a quandary as
to whether they should attempt alternative proceedings in which
they can claim standing in the normal sense, or proceed directly
to a Thorson and McNeil action. If they begin with the former,
they run the risk of time and expense from tactical delays which
may involve issues that are completely peripheral to their main
concern. If they begin with the latter, they risk being turned down
for not having tried the former approach first.
If the only real requirement to establish the appropriateness
of a Thorson and McNeil action is refusal of a request that the Attor-
ney-General refer the matter to the courts, the Forest and Blaikie
cases together may suggest that such an action is procedurally
quite simple. This constrasts sharply with the experiences of Thorson
and McNeil, who each had to make two separate trips through the
court system to resolve their cases – one on the standing question,
and one on the merits of the constitutional issue.
On the other hand, since Blaikie’s standing was recognized at
the trial level, the possibility of having to retrace his steps at a later
stage was unlikely to arise. Once a court at one level grants standing,
any higher court faces two serious obstacles in reversing on this
issue. First, since the grant of standing is discretionary in such a
case, an appeal court is generally reluctant to interfere with the
decision of a lower court. Second, if the lower court proceeds to a
decision on the merits, as it is likely to do, the weight of that decision
makes it impossible for the appeal court to achieve the main objec-
tive of a denial of standing, namely, that the issue be left undecided
until litigated by a more appropriate party.
In the Forest case,, the decision of the Manitoba Court of Appeal
to rule on the merits, after reversing the trial court on standing,
no doubt reflected in part an appreciation of the concern expressed
by the Supreme Court in the McNeil case that all of the issues,
both as to standing and as to the merits, ought to be before the
court for decision at the same time. 6 On the other hand, there is
obviously a conflict between the willingness of an appeal court to
decide such a case on the merits after reversing a denial of stand-
ing by the trial court, and the policy expressed by the Manitoba
Court of Appeal, on Forest’s mandamus application, in favour of
having the benefit of the views of a trial court before making an
appellate decision. While this problem could be avoided by the trial
court expressing its opinion on the merits, this would again tend
26 Supra, note 4, 267.
COMMENTS – COMMENTAIRES
to defeat the objective of leaving the merits undecided when stand-
ing is denied.
Two circumstances make it uncertain whether the approach
of the Manitoba Court of Appeal in proceeding to a decision on the
merits promises that appeal courts will proceed in this manner as
a matter of course, rather than send the case back to the trial court
after reversing a denial of standing by the trial court. The Manitoba
Court was obviously influenced by the fact that Forest had already
been subject to protracted litigation, and particularly by the fact
that he had already been back to the trial court once as a result
of the Appeal Court’s specific instructions that it wanted a trial
decision on the merits. Freedman C.J.M., speaking for the majority,
suggested that refusal of standing was unreasonable and unjustY7
noting also that standing was first raised by the Attorney-General
only at this late stage in the course of the dispute. The matter might
be viewed quite differently in a case where standing has been dis-
puted from the beginning and resolution of this issue proceeds as
a routine preliminary matter.
Further, by the time the Manitoba Court of Appeal rendered its
decision, the Blaikie case was already scheduled for hearing by
the Supreme Court of Canada. While differing outcomes were
possible in the two cases since the Manitoba Act was not actually
part of the British North America Act,28 the decision in the Blaikie
case was likely to determine the outcome in the Forest case. The
Court of Appeal was surely aware of the fact that, if the Manitoba
parties were to have an opportunity to be heard by the Supreme
Court before its mind was made up on the issues, time was of the
essence. Again, it might have opted for a more leisurely opportunity
to hear a trial vie* of the merits in the absence of this circumstance.
II. The declaratory remedy
While the major legal significance of Thorson and McNeil re-
volves around standing, it must not be forgotten that such proceed-
ings inevitably involve declaratory relief, rather than some other
remedy. The standing problem is created by the minimal impact
of challenged legislation upon the plaintiff. Because of such minimal
impact, it is difficult to justify granting any known form of suo-
stantial relief to the plaintiffs, although a suggestion will be made
later as to one direction in which the courts might move. The
27 Supra, note 13, 454.
28 30-31 Vict., c. 3 (U.K.) (as am.) (R.S.C. 1970, App. II, No. 5).
McGILL LAW JOURNAL
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Forest and Blaikie cases also provide a useful case study of the
Thorson and McNeil type of proceeding in this aspect.
Since both Manitoba and Quebec have indicated their intention
to render effective the declaratory judgements of the Supreme Court
of Canada in the language cases, and indeed Quebec rectified the
situation with respect to the language of its statutes within twenty-
four hours of the Court’s decision,29 the effectiveness of declaratory
relief does not arise as a fundamental issue in these cases. There
may be lingering problems, particularly in Manitoba, with respect
to the implementation of official bilingualism, but such practical
problems would equally have attended any other remedy in the
circumstances. The Blaikie and Forest cases do, however, illustrate
other aspects of the effectiveness of declaratory relief.
Since a declaratory judgement does not actually compel any-
one to take any action, one might expect the practical implications
of the outcome to play a relatively minor role in the court’s decision.
The Forest case illustrates the difference between an action for a
declaration and an action claiming some other relief in this respect.
When the Manitoba Court of Appeal refused to entertain Forest’s
mandamus application, one of the reasons given was the possible
need to hear evidence as to the effect of the decision since such
evidence might be a ground for postponing implementation of the
order.30 In the subsequent declaratory action, the Court of Appeal
acknowledged the practical problems its decision would impose,
but was able to by-pass the question of what it should do about
such problems because its decision was only declaratory.31
The Quebec language case presented few practical problems
since Quebec’s pre-existing system of legal institutions capable of
coping with official bilingualism was still largely in place when the
Blaikie case came before the courts. In his trial judgement, Descha-
nes C.J.S.C. noted a practical consideration against the Quebec law
in relation to the language of judicial decisions, pointing out that
anglophone judges might not be able to express their decisions
with full precision in French.3 2 Nonetheless, when acknowledging
that such factors could not influence the result, Mr Justice Des-
ch6nes’s decision provides a reminder that declaratory judgements
may not take account of realities in the way that other remedies
do.
29 Loi concernant un jugement rendu par la Cour supreme du Canada le
13 ddcembre 1979 sur la langue de la Idgislation et de la justice au Qudbec,
L.Q. 1979, c. 61.
30 Supra, note 13, 454-5.
31 Supra, note 7, 4234.
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COMMENTS -COMMENTAIRES
While judicial consideration of the impact of a declaratory judge-
ment presents practical problems, since, by nature, the scope of the
judgement’s effects is ill-defined, the lack of such consideration
can lead to unfortunate consequences, by eliminating appropriate
recognition of the necessary relationship between rights and re-
medies. To the extent that the rights apparently established by a
declaratory judgement may prove impossible to implement, the
judgement can create a misleading impression. It is even conceiv-
able that, in some cases, practical realities may be so incompatible
with the principles recognized by a declaration as to force the
courts to modify substantially, or even reverse, their decision in
later proceedings where other remedies are involved.
On the other hand, in view of the conservatism of Canadian
courts in developing new remedial approaches, declaratory relief
may offer the best compromise between fully effective relief and
no relief at all. For example, there can be no doubt that un-
constitutionality of the Manitoba language law presents that pro-
vince with some very serious problems. For a court to have been
faced in a single proceeding with the task, not only of determining
whether the law was constitutional, -but also of resolving even a
few of the practical consequences of a decision that it was not,
might well have induced the court to deny the right for want of a
remedy. At the very least, this process would have involved the
judiciary in law reform in a way that our courts prefer to leave
to the legislature. The simplicity of a declaratory judgement, albeit
a deceptive simplicity, has the advantage of providing time for
our legislative institutions to carry out appropriate reform.
The granting of a specific remedy can clarify ambiguities in a
judgement. In the Blaikie case, for example, the Supreme Court
expresses itself with some ambiguity in respect of the language of
delegated legislation and quasi-judicial bodies.3 3 While the Court
seems to adopt the view that section 133 of the British North
America Act is to be read as applying to delegated legislation and
quasi-judicial bodies, it reasons, in the alternative, in such a way
as to suggest that the relevant sections of the Quebec law are un-
constitutional because they are part of several unseverable provi-
sions, or because the Quebec legislature itself treats them as part
of a unified legislative and judicial system, which system in turn
is bound by section 133. If the Court had drawn up a specific order
compelling compliance with section 133, this order would likely
legislation and
have indicated quite clearly whether delegated
2Supra, note 6, 49-50.
3 Supra, note 1, 398, 402-3.
McGILL LAW JOURNAL
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quasi-judicial bodies were subject to an affirmative obligation
to conform to section 133, or were merely relieved of the contrary
requirements of the Quebec language law. Moreover, by drawing
attention to specifics, the necessity of formulating a remedial order
might have determined whether municipal agencies in Quebec are
bound by section 133, a question which has necessitated proceed-
ings to reconsider the original decision.34
Although it would seem that a specific remedy, rather than a
declaratory judgement, ought to be more effective, the experiences
of Forest and earlier challengers to the Manitoba language law,3
suggest that this is not necessarily so. As a result of his appeal to
the County Court, Forest obtained a direction that he was entitled
to proceed in French. Yet, his attempt to take advantage of that
ruling in separate proceedings in the higher courts was precluded
when officials of the higher courts refused to accept French docu-
ments for filing. While it is true that the terms of the remedy that
Forest obtained on his preliminary motion in the County Court
did not extend
ticket
appeal, one wonders at the fairness of a legal system which accords
no wider effect to Forest’s legal victory on an important constitu-
tional issue than one confined to the proceeding within which that
victory was achieved. In denying standing in Forest’s subsequent
declaratory action, Mr Justice Dewar decried Forest’s attempt to
litigate an issue on which he had already succeeded in the County
Court, 6 but the refusal of the higher court officials to accept the
County Court ruling would seem to compel such litigation.
to proceedings other
than his parking
As Freedman C.J.M. pointed out, in explanation of his instruc-
tions to the Registrar of the Court of Appeal to refuse the French
documents, the County Court judgement was not binding on the
higher courts.3 On the other hand, under the rule of precedent,
it is at least arguable that, unless and until overruled by a higher
court, the ruling of even the lowest court constitutes the law and is
entitled to respect as such. If officials are entitled to disregard the
decision of a lower court because it is subject to reversal by a
superior provincial court, one may argue that they can also dis-
regard a decision of a superior court because it is subject to re-
versal by the Supreme Court of Canada. While, in the case at hand,
acceptance of the County Court ruling would have meant disregard-
34 On March 27, 1980, the Government of Quebec obtained leave for a
rehearing concerning the language of municipal agencies after the Supreme
Court’s decision on the Blaikie case.
Appeal in Forest, supra, note 7, 421-2.
35The history of earlier challenges is reviewed by the Manitoba Court of
26 Supra, note 14, 235.
37 Supra, note 13, 451.
1980]
COMMENTS – COMMENTAIRES
ing the mandate of a statute, the import of the County Court’s
ruling was that the statute was unconstitutional and therefore void
at law.
It must be conceded that, because of the preliminary character
of the County Court ruling, there may be good reason for not
treating it as a normal precedent. While the Crown had not appeal-
ed the preliminary ruling, it did retain the right to do so after a
final decision had been rendered by the County Court on all of
the issues. Thus, the precedent of the County Court decision had a
certain tentative aspect. If the decision of the court officials, and
Mr Justice Freedman’s instructions to the Registrar, had been
based upon considerations such as these, there might be little
cause for concern. However, the possibility that a lower court
decision with a ratio decidendi based on constitutional grounds
may simply be treated as non-existent raises doubts as to the
effectiveness of asserting constitutional rights through the pursuit
of normal remedies in ordinary legal proceedings. Of course, if
there are other litigants interested in asserting the same rights,
they are likely to become aware of the precedent in question, and
other lower courts are likely to follow it. But, if public officials
do not feel obliged to adhere to such precedents, and occasions
to litigate the issue arise only infrequently, there is the possibility
of long-term infringement of constitutional rights, notwithstanding
an occasional challenge to such infringement in the lower courts.
The Manitoba language law is a perfect illustration of this point.
Even though it was successfully challenged in the County Court
in 1909, the Manitoba language law continued in full effect for
another seventy years after that decision was buried among the
Court’s records 8
There are arguments against giving such full effect to lower
court precedents. The constitutional issue might be quite secondary
to other issues in any particular case, and may have received
inadequate consideration. Settlement of the dispute or discon-
tinuance of the litigation for totally unrelated reasons may forestall
further proceedings even though the government might prefer to
appeal on this issue. However, given that the government can seek
the ruling of a higher court through a constitutional reference, it
would seem preferable for public officials to be guided by the
existing precedent, at least where no step has been taken to obtain
a more authoritative ruling. Otherwise, the temptation for public
officials to carry on as before only adds to the other frustrations
facing the private litigant who seeks to enforce the constitution.
38 Bertrand v. Dussault (1909), unreported (Man. Co. Ct), quoted by Monnin
JA in Re Forest, supra, note 13, 458-62.
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III. Proposals for the future
Forest’s experience suggests that a major drawback of the
Thorson and McNeil rulings is the lack of defined criteria to which
a court can address itself in deciding whether to grant standing. The
rule appears to be that the courts have a discretion to grant standing,
taking into account various factors such as the merits of the case
and the availability of alternative means to obtain a judicial ruling.
While standards may not play the decisive role in legal decision-
making that the typical judicial decision purports to give them,
judges and lawyers clearly feel more comfortable with them than
they do without them. Moreover, standards can be influential, even
if they are not always decisive.
It
is submitted that the Thorson and McNeil rulings would
operate more satisfactorily if they evolved in the direction of the
Quebec rule on standing which is illustrated in the Blaikie case:
that is, the courts should adopt the standard that a sufficient
interest is necessary to allow standing. In weighing various factors
under the discretionary rule, the courts are in effect measuring
the approach becomes one of
whether such interest exists. If
defining and refining such a standard, rather than exercising a
pure discretion, the rule will develop in a more rational and orderly
fashion, if for no other reason than judges will be more comfort-
able with what they are doing. It must be emphasized that this
does not mean the Thorson and McNeil approach to standing should
be narrowed. The concept of “sufficient interest” seems broader in
its own right than the common law rules of standing, and would
be further broadened in light of Thorson and McNeil.
Under such an approach, the proper role for judicial discretion
in cases where
would be to restrain the grant of standing
sufficient interest exists, but the court, for some reason of policy,
concludes it is premature to make a ruling on the merits. The courts
are accustomed to exercising this form of discretion, particularly in
matters of public law. Thus, they should be able to work with it
more effectively than with the ostensibly wide-ranging discretion
which was called upon in the Forest case.
In order to discourage the multiplicity of litigation in which
Forest became involved, the view needs to be encouraged that a
Thorson and McNeil proceeding is not a special form of action to
be taken separately from other attempts to obtain judicial inter-
vention. Declaratory relief should be treated simply as one of the
various forms of remedy that may be sought in a single proceeding.
In any particular case, a litigant may have an arguable case for
one or more specific remedies, and should feel free to claim a
19801
COMMENTS – COMMENTAIRES
declaration as an additional or alternative remedy. In the result,
it may be decided that the specific remedies should be refused
for want of standing or other grounds, or in exercise of judicial
discretion, but the court would still be able to rule that the party
has sufficient interest to obtain a declaration. The court could
then make the appropriate decision on the merits. The extent to
which this is procedurally possible at present depends on the rules
of court in each jurisdiction, but it is submitted that this is the
direction in which the courts should move.
A constant obstacle to private persons who might wish to
challenge the constitutionality of particular legislation is the enor-
mous cost of such litigation. Normally, it may be expected that
the government, with the public purse behind it, will exhaust its
avenues of appeal so that one must be prepared to support any
challenge to the Supreme Court of Canada. In light of this, it is
submitted that the courts ought to consider granting an additional
remedy to the successful applicant for a declaration, namely, an
award of costs on a solicitor and client basis. The risk of failure
should ensure that the availability of this remedy will not induce
frivolous litigation, and, in any event, such litigation can be con-
trolled through judicial discretion. In view of the responsibility of
the government to uphold the constitution, it seems entirely appro-
priate to award costs on this penal scale in the event that a statute
is ruled unconstitutional. The government would have the option
of avoiding this risk by initiating a constitutional reference, which
would seem a preferable method of resolving constitutional doubts
in the first place.
Conclusion
The Blaikie and Forest cases demonstrate that liberalized rules
of standing and declaratory relief are viable methods of upholding
constitutional rights. In comparison, the two cases suggest that
the approach to such litigation under the Code de procedure civile
is preferable to the present state of the Thorson and McNeil rule in
common law jurisdictions. Evolution of the common law rule in
that direction, and attention to ensuring procedural simplicity and
controlling the cost of public-interest litigation to the private
individual would assist in improving the efficacy of such proceed-
ings.
Robert W. Kerr*
* Professor of Law, University of Windsor.
