Godin v. Sabourin, 2016 ONSC 770
HEARD: December 3, 2015
 The Applicant and the Respondents are neighbours and own adjoining property located in the City of Ottawa. The Applicant is the owner of 1041 Calboro Road; the Respondents are the owners of 1037 Calboro Road.
 The Applicant alleges that the Respondents constructed an in-ground pool in their backyard and by doing so, they altered and raised the natural grade of their property which is unsupported by a proper retaining wall and poses a risk to the property of the Applicant.
 Further, the Applicant pleads that a fence built by the Respondents encroaches on his property.
 The Applicant seeks four declaratory orders:
a) A declaration that the Applicant is not required to maintain the artificial grade of the Respondents’ property;
b) A declaration that the Respondents are responsible for maintaining the grade of their property;
c) A declaration that the maintenance of the fence situated on the property of the Respondents is their responsibility; and
d) A declaration that the fence belonging to the Respondents be relocated entirely on their property.
 Prior to the hearing of this matter, the fence owned by the Respondents but built on the property of the Applicant was removed save and except for the portion of the fence posts that are located beneath ground level.
The Law of Declaratory Orders
 The general rules surrounding the granting of declarations were summarized recently by Perell J. in Glaspell v. Ontario, 2015 ONSC 3965 (CanLII):
 Under section 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Superior Court may make binding declarations of right, whether or not any consequential relief is or could be claimed. Declaratory orders are in the discretion of the court: CTV Television Network Ltd. v. Kostenuk,1972 CanLII 435 (ON CA),  3 O.R. 338 (C.A.) at para. 5.
 The court’s discretion to make a declaration should be exercised sparingly and with extreme caution: Re Lockyer, 1933 CanLII 137 (ON CA), O.R. 22 (C.A.). As a general policy, the court will not make a declaratory order or decide a case when the decision will serve no practical purpose because the dispute is theoretical, hypothetical or abstract, and the remedy of declaratory relief is not generally available where the dispute or legal right may never arise: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC),  1 S.C.R. 342; Green v. Canada (Attorney General), 2011 ONSC 4778 (CanLII), 2011 ONSC 4778 (S.C.J.).
 Being a discretionary remedy, the court will withhold the exercise of its discretion to grant a declaration in circumstances in which a declaration cannot meaningfully be acted upon by parties; a declaration must have some utility: Solosky v. The Queen, 1979 CanLII 9 (SCC), 1 S.C.R. 821; Giacomelli v. Canada (Attorney General), 2010 ONSC 985.
Present vs Future Rights
 An important factor for a court to consider when contemplating granting declaratory relief is the distinction between present and future rights. In the text The Law of Declaratory Judgments, 3d. ed. (Toronto: Thomson Carswell, 2007) the author Lazar Sarana explains the difference as follows:
A distinction should be made between future rights and the future effects of a declaratory judgment. A judicial determination of present rights is binding on the parties as res judicata and will settle in the future all matters coming within the purview of the declaration. On the other hand, future rights are those not yet born out of the judicial relationship between the parties and do not by definition ascertain all relevant parties, or the enforceability, relevance and scope of the obligation.… What interest can a party profess in seeking judicial determination of rights which may never accrue, or exclude him when they do? (at p. 31)
 The Supreme Court in Solosky v. The Queen, 1979 CanLII 9 (SCC),  1 S.C.R. 821, noted that “declarations can be granted where real, rather than fictitious or academic, issues are raised” (at 831). The court warned that “declarations concerning the future ought to be approached with considerable reserve” (at 832). Similarly, a declaration is inappropriate where the dispute has already been resolved, and thus rendered academic (at 832).
 It is a long-standing principle in Ontario that courts should not grant “an order on the basis of an assumed set of facts to resolve future matters”. [Re 296616 Ontario Ltd. v. Richmond Hill (Town) (1977), 1977 CanLII 1174 (ON CA), 14 O.R. (2d) 787 at 790].
 Further, Courts should refrain from making declaratory orders where the dispute is hypothetical or abstract, and may never arise. [B2B Bank v. Batson, 2014 ONSC 6105 (CanLII) at para. 13.]
 In Re 296616, the Court of Appeal overturned an order declaring that the property in question was a legal non-conforming use for commercial purposes. The court explained that granting a declaration on the basis of a hypothetical situation to avoid a potential future conflict was inappropriate. The court could not accurately predict the impact of future by-laws or events on the status of the property.
 A similar result was reached in B2B Bank where Stinson J. granted judgment in favour of the plaintiff for the monetary sum sought, but refused to grant a declaration that the debt would survive any discharge from bankruptcy that may be granted to the defendant in the future. Justice Stinson found that there was a fraudulent act committed while the defendant acted in a fiduciary capacity. Under section 178(1)(d), the liability arising from this act survives bankruptcy.
 Justice Stinson refused to grant the declaration for two reasons, one of which will be discussed below. Most importantly, the defendant had not yet declared bankruptcy. Making the requested declaration would require ruling on a hypothetical situation that may or may not arise. Additionally, the relevant legislation may have changed by the time that the matter came to be determined – it would be inappropriate to assume that the legal regime will remain unchanged (at para. 12).
Declarations must serve a purpose beyond repeating existing law
 The Applicant seeks a number of declarations regarding the responsibility of the Respondents to maintain the grade of the property and the condition of the fence and relies on a number of cases for the proposition that property owners have no obligation to provide lateral support for the artificially raised grade of abutting properties. [Rytter v. Schmitz (1974), 47 D.L.R. (3d) 445 (B.C.S.C.); Welsh v. Marantette (1983), 1983 CanLII 1855 (ON SC), 44 O.R. (2d) 137 (H.C.); Nolan v. Winchester, 1983 Carswell NB 748 (Q.B.); Ludwig v. Bos, 2010 BCCA 2013, 4 B.C.L.R. (5th) 332.]
 The Applicant also relies on the Line Fences Act, R.S.O. 1990, c. L.17, s. 3, and on the City of Ottawa Fencing By-Law No. 2003-462, s. 13, to support the proposition that a landowner who builds a fence has the responsibility to maintain it.
 Courts have refused to exercise their discretion to grant declarations where the declaration served no purpose beyond repeating legislation or the common-law.
 In B2B Bank, the second reason that Stinson J. refused to grant the declaration sought was that it replicated legislation and thus would serve no purpose. The finding of fraud was sufficient to fit this situation squarely within the ambit of s. 178(1)(d) of the Bankruptcy Act, which states that the debt survives the discharge of bankruptcy. As the court notes at paragraph 17: “A further declaration to this effect has no utility and adds no more certainty to the parties than the legislation itself.”
 The court reached a similar result in Fisher v. Gibson (1996), 1996 CanLII 12089 (ON SC), 23 R.F.L. (4th) 210 (Ont. Ct. J. (Gen. Div.)). Following an application where the respondent was shown not to be the child’s biological father, the mother sought a declaration of custody in her favour. The court found that, on the facts, the mother was entitled to custody as an operation of both statute and common law. The court therefore held that a declaration to that effect was unnecessary and refused to exercise its discretion to grant such an order.
 Declarations a, b, and c, requested by the Applicant are refused.
 I find that they would serve no purpose and relate to matters that are well settled in case-law and/or are provided for in legislation. The declarations sought would do nothing more than repeat the current state of the law and/or legislation.
 Declaration d) has been rendered partially moot by the removal of the existing fence save and except for the portion of the fence posts below ground. A new fence has been constructed on the property of the Respondents. The Respondents have undertaken to remove the remaining fence posts on the property of the Applicant once spring arrives and the ground thaws.
 As set out above, declaratory orders are within the discretion of the court. The court’s discretion to make a declaration should be exercised sparingly and with extreme caution.
 In light of all the circumstances including the undertaking given by the Respondents, I find that this is not a case where a declaratory order should be made. Declaration d) is therefore refused.
 In view of my rulings, this is not a case where costs need be addressed. Each party shall be responsible for their own costs.
Patrick Smith J.
Date: January 29, 2016