Danson v. Ontario (Attorney General)  2 S.C.R. 1086: Charter litigation -- Factual basis -- Proceedings brought by way of application to enforce Charter rights -- Application not supported by facts -- Whether or not Charter action can be brought absent a factual basis --Jurisdiction -- Mootness -- Courts below considering issue in absence of factual situation -- Fresh evidence adduced in Supreme Court of Canada -- Whether the legal issue considered by the courts below rendered moot by the appellant's introduction of fresh evidence
Present: Lamer C.J. and Wilson, Sopinka, Cory and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Charter litigation -- Factual basis -- Proceedings brought by way of application to enforce Charter rights -- Application not supported by facts -- Whether or not Charter action can be brought absent a factual basis -- Canadian Charter of Rights and Freedoms, ss. 7, 15 -- Constitution Act, 1867, s. 92(14) -- Constitution Act, 1982, s. 52 -- Rules of Civil Procedure, Rules 14.05(3)(h), 15.02(1), (3), 37.03(6), 57.07.
Courts -- Jurisdiction -- Mootness -- Courts below considering issue in absence of factual situation -- Fresh evidence adduced in Supreme Court of Canada -- Whether the legal issue considered by the courts below rendered moot by the appellant's introduction of fresh evidence here.
Civil procedure -- Commencement of proceedings -- Application challenging constitutionality of Rules permitting assessment of costs against solicitors -- Application made absent factual basis -- Whether or not application can be brought absent factual basis -- Rules of Civil Procedure, Rules 14.05(3)(h), 15.02(1), (3), 37.03(6), 57.07.
Rule 57.07 of Ontario's new Rules of Civil Procedure provided for the assessment of costs against solicitors personally in certain circumstances. Other rules to the same effect included Rules 37.03(6), 15.02(1) and (3). Appellant, an Ontario lawyer, sought to have these Rules declared to be of no force and effect as being beyond provincial competence. It was alleged that the Rules attacked the independence of the bar, exceeded the scope of s. 92(14) of the Constitution Act, 1867 and violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. Appellant brought an application in the Supreme Court of Ontario pursuant to Rule 14.05(3)(h), which allows a proceeding to be brought by application where it is unlikely that there would be any material facts in dispute. The application contained no supporting affidavit, and no facts were alleged. The Attorney General of Ontario brought a motion to quash the application. The motions judge dismissed the motion. He held that it properly fell within Rule 14.05(3)(h) and that, apart from Rule 14.05(3)(h), the court had inherent jurisdiction to determine the constitutionality of the impugned rules by application. An appeal was dismissed by the Divisional Court but was allowed by the Ontario Court of Appeal.
Appellant filed a notice of application for leave to appeal to this Court before its "new Rules" providing for documentary applications had come into effect. The application made no mention of an application to adduce fresh evidence. The respondent submitted a factum and did not attend the oral hearing. After respondent's factum on the application for leave had been filed, the appellant filed a notice of motion to adduce fresh evidence in the appeal. This fresh evidence included the appellant's opinions concerning the role of counsel, the dynamics of courtroom advocacy, and the manner in which the impugned rules undermine the independence of the bar. Also included was evidence of specific instances in which particular counsel were threatened with the invocation of the impugned rules. The Court did not have the benefit of oral or written argument in opposition to the application to adduce fresh evidence. The application for leave to appeal and the application to adduce fresh evidence were granted on the date of the oral hearing.
At issue here were: (1) whether the legal issue considered by the courts below (i.e., can this application be heard without reference to any factual situation and without any affidavit evidence) had been rendered moot by the appellant's introduction of fresh evidence in this Court; and (2) whether the appellant could bring an application pursuant to s. 52 of the Constitution Act, 1982 and/or to Rule 14.05(3)(h) of the Ontario Rules of Civil Procedure to seek a declaration that Rules 57.07, 37.03(6) and 15.02(1) and (3) of the Ontario Rules of Civil Procedure are unconstitutional, if no facts are alleged by the applicant in support of the relief claimed.
Held: The appeal should be dismissed.
The appeal was not moot. A decision was required on the question of whether appellant's application under Rule 14.05(3)(h) could proceed without a factual underpinning. It would be highly unusual for this Court to accede to the submission that its own act of granting an application to adduce fresh evidence in an appeal has rendered the appeal itself moot.
A proper factual foundation must exist before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack. A distinction must be drawn between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". Adjudicative facts are those that concern the immediate parties. They are specific and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements.
The application, which seeks to attack the impugned rules on the basis of their alleged effects upon the legal profession in Ontario, should not be proceeded with because a Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. It would be difficult if not impossible for a motions judge to assess the merits of the appellant's application under Rule 14.05(3)(h) without evidence of those effects by way of adjudicative facts and legislative facts. Appellant has the facts needed to bring his challenge, by way of application, to a conclusion on the merits if he so chooses. He need not prove that the impugned rules were applied against him personally as standing was not an issue; but he must present admissible evidence that the effects of the impugned rules violate provisions of the Charter.
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