THE DECLARATORY JUDGMENT: REVIEWING ADMINISTRATIVE ACTION

Abstract

The declaratory judgement is a legal proceeding whereby the court merely proclaims or declares the existence of a legal relationship. Derril T. Warren examines the declaration’s historical development in English jurisprudence, and advocates for its import into Canadian administrative law. But what makes the declaratory judgement such a useful remedy in the context of judicial review? The author alludes to its discretionary nature. He notes that it does not impose sanctions against public authorities and thus decreases the chance of hostility in proceedings. It avoids the nebulous distinctions between judicial and administrative acts that often plague certiorari proceedings. Unlike certiorari, it is not limited to errors of law on the face of the record. There is no right to discovery on certiorari proceedings, but there is in an action for a declaration. It is not fettered by time limitations like certiorari. Finally, the declaration may be used by the superior courts in both a supervisory and original capacity, allowing them not only to quash a decision, but also to enquire into the merits of the issue.