Court of Appeal

Date: 20021009

Docket: CA 179130

                                NOVA SCOTIA COURT OF APPEAL

               [Cite as: Sweeney v. Nova Scotia (Attorney General),  2002 NSCA 121]

                              Cromwell, Chipman and Hamilton, JJ.A.

BETWEEN:

                                              JACK W. SWEENEY

Appellant

                                                          - and -

                        THE ATTORNEY GENERAL OF NOVA SCOTIA

        representing Her Majesty the Queen in right of the Province of Nova Scotia

Respondent

                                        REASONS FOR JUDGMENT

Counsel:                Appellant in person

Genevieve Harvey for the respondent

Appeal Heard:                  October 1^st, 2002

Judgment Delivered:         October 9^th, 2002

THE COURT:       Appeal quashed per reasons for judgment of Cromwell, J.A.; Chipman and Hamilton, JJ.A. concurring.

CROMWELL, J.A. :

[1]              Jack W. Sweeney brought an application in the Supreme Court requesting “... a Ruling on a Question of Law, as the Law applies to property held in Joint Tenancy, that is not Joint Tenancy in Common.”   No facts relating to any dispute involving this question were placed before the Court. Nothing in the material suggested that the application was prompted by anything more than Mr. Sweeney’s curiosity and the fact that he had apparently received conflicting opinions from lawyers on the subject.

[2]              Haliburton, J. dismissed the application, stating the general rule that “... the courts don’t make determinations of law in the abstract.”  Mr. Sweeney seeks to appeal the dismissal of his application and the respondent applies to quash the appeal.

[3]              Having reviewed the material filed and heard oral submissions from Mr. Sweeney and Ms Harvey, I am of the view that the appeal is “absolutely unsustainable” and should  be quashed: see Rule 62.18(1) and Crouse Estate v. Saunders (1999), 180 N.S.R. (2d) 317;  NSCA 145 at para. 8.

[4]              The judge was correct that, as a general rule,  the courts do not and should not make determinations of law in the abstract, that is, without a specific set of facts and an actual dispute between parties to a law suit.  While it is true that under Rule 5.14, the Court is authorized to “... make binding declarations of right whether or not any consequential relief is or could be claimed”, that authority is discretionary.  It is well settled that, in general, a person may only seek a declaration of right if it relates to his or her private rights or can show that he or she is specially affected by the subject of the declaration: see for example Smith v. Ontario (Attorney General), [1924] S.C.R.  331.  It is clear that Mr. Sweeney does not meet this test.  Aside from him telling us that he may start a court case depending on the answer he receives to his question of law,  there is no indication that the issues he raises relate to his private interests or affect him differently than any other member of the public. 

[5]              The general rule which I have just described may be relaxed through the exercise of judicial discretion,  but only if the party asking for the declaration can show that there is a serious question in which the party has a genuine interest and that there is no other reasonable and effective way to bring the matter before the Court: see for example, Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R.  607.  In the present case, Mr. Sweeney has not shown that there is no other reasonable and effective way that the matter may be brought before the courts.  In fact, his submissions to us suggests that there is a real dispute lurking behind the question he poses in the abstract.  This confirms what to me is the  obvious point that these issues may arise in the course of an actual dispute involving particular property rights and should only be determined in such a context.  If we did otherwise, we could perhaps affect the rights of parties who have not had an opportunity to be heard and fail to take account of some relevant considerations that would be brought to our attention when and if the issue arises in a real case. 

[6]              Mr. Sweeney relies on Rule 9:02, but it does not support his position.  The Rule is concerned with the method of commencing a proceeding, not whether the content of the proceeding is a proper matter for adjudication by a court.

[7]              I would conclude that the judge was right to dismiss the application and that Mr. Sweeney’s  appeal from that decision is obviously unsustainable.  The appeal should therefore be quashed.  The respondent did not ask for costs and I would order none.

Cromwell, J.A.

Concurred in:

Chipman, J.A.

Hamilton, J.A.