Court of Appeal for Ontario

Date: May 3, 2018 Docket: C64347

Judges: Strathy C.J.O., Roberts and Paciocco JJ.A.

Between

Mohammed Ali Yasin Applicant (Appellant)

and

Her Majesty the Queen in Right of the Province of Ontario Respondent (Respondent)

Counsel

Jason Currie, for the appellant

Alyssa Armstrong, for the respondent

Heard: March 26, 2018

On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice, dated August 22, 2017.

Reasons for Decision

[1] The appellant brought an application in the Superior Court of Justice, naming Her Majesty the Queen in Right of the Province of Ontario as the respondent. He sought a declaration that his date of birth is January 1, 1951, rather than November 5, 1955. His application was dismissed. He appeals to this court.

[2] Mr. Yasin was born in Iraq. When applying for permanent residence in Canada in 1991, Mr. Yasin declared his date of birth as November 5, 1955. He says that this date was shown in his Iraqi identity documents and was incorrect. He had no documents that showed his correct birth date.

[3] Counsel for Mr. Yasin advised the court that the application was brought because Mr. Yasin wishes to apply for Canada Pension Plan ("CPP") benefits. This was not disclosed in Mr. Yasin's affidavit in support of his application. Mr. Yasin also attempted to correct his date of birth when obtaining a new citizenship certificate. He was informed by Immigration, Refugees and Citizenship Canada ("IRCC") that he would have to obtain a court order.

[4] In a brief endorsement, the application judge stated, without elaborating, that: (a) Her Majesty the Queen in Right of Ontario ("Ontario") was not a proper party to the application; (b) the Superior Court of Justice has no jurisdiction to make the order sought; and (c) the appellant failed to prove his true date of birth, given his inconsistent statements. It is not entirely clear what "inconsistent statements" the judge was referring to.

[5] Counsel for Ontario maintains that the application judge was correct: it is not a proper party to the proceeding because the only relevant Ontario statute is the Vital Statistics Act, R.S.O. 1990, c. V.4, which deals with the registration of births in Ontario or on board ships registered in Ontario. The Vital Statistics Act expressly does not apply to births outside Ontario. Ontario takes no position on the substantive issues or merits of this appeal.

[6] The issue has some practical significance, as indicated by several decisions in the Superior Court in which similar relief has been sought. The most recent decision is Hagos (Re), 2018 ONSC 372. In that case, in the absence of a respondent appearing in the proceeding (IRCC having been served but having taken no position in the matter), the application judge found that the Superior Court had inherent jurisdiction to "fill this gap" in the legislation and granted a declaration. The judge stated that any governmental authority receiving notice of the order was required to use the declared birth date.

[7] We were referred to two unreported decisions in which similar declaratory relief has been granted. In one, an Ontario government ministry was removed as a party on consent and the order was made in the absence of any respondent appearing in the proceeding: Adubofour (Re) (11 May 2017), Toronto, CV-17-570472 (Ont. S.C.). In the other, Ontario was named as a party, but did not appear on the application: Armstrong-Douglas v. Her Majesty the Queen in Right of the Province of Ontario (17 February 2015), London, 84/15 (Ont. S.C.).

[8] The court's inherent jurisdiction to grant declaratory relief, whether or not any consequential relief is or could be claimed, is confirmed by s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The granting of a declaration is discretionary. In civil cases, a declaration is normally sought to clarify parties' rights under a contract, an agreement or a statute, or in accordance with a right to have a determination of status: see Nickerson v. Nickerson (1991), 4 O.R. (3d) 447 (Ont. Ct. (Gen. Div.)).

[9] A court can give a declaratory remedy so long as it has jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to do so: Starz (Re), 2015 ONCA 318, 125 O.R. (3d) 663, at para. 108; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46; Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 831.

[10] The court does not grant declarations as "abstract propositions" that have no ostensible effect on the rights of undetermined parties not before the court: see Re Hum Fung Shee, [1967] 1 O.R. 220 (C.A.), at pp. 222 and 225-226. However, courts can and do grant declarations to enable parties to know their rights and to avoid future disputes.

[11] One would have thought that there was some administrative route available, short of a proceeding in this court, to either correct the birth date shown on the appellant's Canadian identity documents or to satisfy Canada Revenue Agency of the appellant's correct date of birth to enable him to obtain CPP benefits. Counsel did not point us to any such mechanism.

[12] In the absence of more specific evidence as to how this matter has developed, we are unable to say whether the appellant's proper route is through administrative channels, judicial review or an application in the Superior Court for directions or other relief, including declaratory relief.

[13] Suffice to say that in the absence of any request for relief that would affect Ontario, or any demonstrated interest of Ontario in the proceeding, the application judge properly dismissed the application. For that reason, we dismiss the appeal.

[14] On a proper record, and with the proper parties before it, the court may have jurisdiction to make a declaration of the appellant's birth date to enable him to obtain CPP benefits. Her Majesty the Queen in Right of Canada, represented by the Attorney General of Canada, would be a proper party to such proceedings.

[15] A proper record would include: (a) a statement by the appellant, under oath, setting out the reasons for seeking the order; (b) the disclosure of any public or other records that would be affected by the order; and (c) any other matter that could be affected by the order. This would enable the court to consider the implications of the order and to identify any other parties, which could include the Province of Ontario, who should receive notice of the application.

[16] The appeal is dismissed, without prejudice to the appellant's right to seek declaratory and ancillary relief on a proper record with notice to the proper parties. Counsel agree that this is not an appropriate case for costs.

"G.R. Strathy C.J.O."

"L.B. Roberts J.A."

"David M. Paciocco J.A."