Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086
Timothy S. B. Danson Appellant
v.
Her Majesty The Queen Respondent
indexed as: danson v. ontario (attorney general)
File No.: 20854.
1990: June 1; 1990: October 4.
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.
Cases Cited
Applied: MacKay v. Manitoba, [1989] 2 S.C.R. 357; referred to: R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
Statutes and Regulations Cited
Act to Amend the Supreme Court Act, R.S.C., 1985, c. 34 (3rd Supp.), s. 4.
Canadian Charter of Rights and Freedoms, ss. 7, 15.
Constitution Act, 1867, s. 92(14).
Constitution Act, 1982, s. 52.
Courts of Justice Act, 1984, S.O. 1984, c. 11.
Election Finances Act, S.M. 1982‑83‑84, c. 45.
Liquor Control Act, R.S.N.B. 1973, c. L‑10.
Retail Business Holidays Act, R.S.O. 1980, c. 453.
Rules of Civil Procedure, O. Reg. 560/84, Rules 14.05(3)(h), 15.02(1), (3), 37.03(6), 57.07.
Rules of the Supreme Court of Canada, SOR/88-247, Rules 23, 32(1).
Supreme Court Act, R.S.C., 1985, c. S‑26.
Authors Cited
Davis, Kenneth Culp. Administrative Law Treatise, vol. 2. St. Paul, Minn.: West Publishing Co., 1958.
Morgan. "Proof of Facts in Charter Litigation," in Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 60 O.R. (2d) 676, allowing the Attorney General for Ontario's appeal from the decision of the Divisional Court (1986), 55 O.R. (2d) 1, upholding the dismissal of the motion to quash (1985), 51 O.R. (2d) 405. Appeal dismissed.
Morris Manning, Q.C., and Theresa R. Simone, for the appellant.
Blenus Wright, Q.C., and Robert E. Charney, for the respondent.
//Sopinka//
The judgment of the Court was delivered by
SOPINKA J. -- This appeal concerns the question of the appropriateness of seeking constitutional declarations by way of application, without alleging facts in support of the relief claimed.
The Facts
On January 1, 1985, new Rules of Civil Procedure, O. Reg. 560/84, came into force in the Province of Ontario, enacted pursuant to the Courts of Justice Act, 1984, S.O. 1984, c. 11. Among these rules is Rule 57.07, known colloquially among the Ontario Bar as the "Torquemada Rule". (Torquemada was the first grand inquisitor of the Spanish Inquisition whose name has become synonymous with cruelty.) The rule provides for the assessment of costs against solicitors personally in certain circumstances. Other rules to the same effect include Rules 37.03(6) and 15.02(1) and (3). Rule 57.07 provides as follows:
57.07 (1) Where a solicitor for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,
(a)disallowing costs between the solicitor and client or directing the solicitor to repay to the client money paid on account of costs;
(b)directing the solicitor to reimburse the client for any costs that the client had been ordered to pay to any other party; and
(c)requiring the solicitor personally to pay the costs of any party.
(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the solicitor is given a reasonable opportunity to make representations to the court.
(3) The court may direct that notice of an order against a solicitor under subrule (1) be given to the client in the manner specified in the order.
The appellant is a barrister and solicitor, and a member of the Law Society of Upper Canada. On January 16, 1985, the appellant brought an application in the Supreme Court of Ontario pursuant to Rule 14.05(3)(h) of the Rules of Civil Procedure for a declaration that Rules 57.07, 37.03(6) and 15.02(1) and (3) are of no force or effect. Rule 14.05(3)(h) provides as follows:
14.05 . . .
(3) A proceeding may be brought in the Supreme Court by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
. . .
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute. [Emphasis added.]
The application was stated to be based on the ground that the impugned rules are ultra vires the Provincial Legislature, owing to their alleged attack on the independence of the Bar and their alleged extension beyond the power granted to the Provincial Legislature by s. 92(14) of the Constitution Act, 1867, and on the ground that the rules violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The application contained no supporting affidavit, and no facts were alleged.
The Proceedings Below
Prior to the scheduled hearing date for the application, counsel for the Attorney General for Ontario brought a cross-motion to quash the application, on the grounds that there is no statute or rule, apart from Rule 14.05(3)(h), granting the court jurisdiction to determine the constitutionality of the impugned rules by application, and that the application did not comply with the requirements of Rule 14.05(3)(h). The motions judge, McRae J. ((1985), 51 O.R. (2d) 405), held that the application properly fell within Rule 14.05(3)(h) as there were, in his view, no material facts in dispute. McRae J. held further that, apart from Rule 14.05(3)(h), the court had inherent jurisdiction to determine the constitutionality of the impugned rules by application. The motion to quash the application was accordingly dismissed.
The Divisional Court ((1986), 55 O.R. (2d) 1), by a majority, dismissed the Attorney General's appeal from the dismissal of the motion to quash. Osler J. (Sirois J. concurring) held that the meaning of Rule 14.05(3)(h) was not that adjudicative facts must necessarily be present in an application under the rule, but that if there are such facts they must be undisputed. Osler J. held further that Rule 14.05(3)(h) had been properly invoked, and that there were no material facts in dispute within the meaning of the rule. Van Camp J., dissenting, took the view that to permit the applicant to proceed under Rule 14.05(3)(h) in the circumstances of this case would be to stretch the words of the rule beyond their clear meaning.
The Ontario Court of Appeal ((1987), 60 O.R. (2d) 676) allowed the Attorney General's appeal from the decision of the Divisional Court, and quashed the application. Finlayson J.A. stated that the motions judge had misconceived the Attorney General's motion to quash as an attack on the jurisdiction of a High Court judge to entertain a challenge to the rules, and as an attack on the standing of the present appellant to bring the application. Finlayson J.A. was of the view that the sole issue before the motions judge was whether Rule 14.05(3)(h) ". . . had been complied with so as to permit the applicant to proceed in the manner proposed by him" (at p. 680). Finlayson J.A. held that the application, as framed, could not be brought pursuant to Rule 14.05(3)(h). He referred to the general principle that constitutional cases require a factual underpinning, and pointed out that Rule 14.05(3)(h), at p. 680:
. . . assumes the adjudication of a real issue between parties where there is no dispute as to the material facts. If there are no facts then there must be agreement that there are no facts. That is not the case here and it is wrong to assume that "it is unlikely that there will be any material facts in dispute". If it was "unlikely" at one time, the position of the [Attorney General] makes it clear that it is not any more.
Finlayson J.A. listed a number of potential areas of factual dispute that would arise on the appellant's application, as follows, at pp. 683-84:
(1)The facts supporting his standing to make the complaint.
(2)How he is or could be affected by the rules in question.
(3)Are we dealing solely with his perceptions of the effect of the rules, on the profession, or is this the view of the profession?
(4)How his perceptions of the diminished role of the advocate, or that of anyone else, translate into a threat to the legal profession.
(5)How his perceptions of the effect of the rules, or that of anyone else, adversely affect a client's rights.
(6)How this alleged threat to the legal profession offends a Charter protected right.
(7)What factual underpinning is there for the assertion that the rules are "beyond the scope of s. 92(14) of the Constitution Act, 1867"?
In addition to making the precise nature of the application difficult to discern, Finlayson J.A. pointed out that the absence of a factual basis makes the Attorney General's task of defending the rules under s. 1 of the Charter (if the need should arise) all the more difficult. Finlayson J.A. was particularly concerned that ". . . the court might on this sketchy record, feel constrained to make some sweeping generality which would later appear unwise" (at p. 685). Thus the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints.
Krever and Tarnopolsky JJ.A. wrote separate judgments concurring in the conclusion arrived at by Finlayson J.A. Krever J.A. expressed the view that there could be cases in which a law could be challenged by application under Rule 14.05(3)(h). This would be so if the nature of an applicant's challenge to an impugned law were such that the supporting arguments were not dependent upon factual circumstances -- as, for example, in a claim that the Charter prevents the assessment of costs against a solicitor under any circumstances whatever. Here, however, the claim related to the effects of the impugned rules on the legal profession in the event of judicial abuse of the rules, and these effects could not be assessed in the absence of facts.
Tarnopolsky J.A. agreed with both Finlayson and Krever JJ.A., and emphasized, at p. 688, that:
. . . because of the widespread effects of a successful constitutional challenge, especially where it would result in invalidation of parliamentary or delegated legislation, a court should not countenance such a challenge in the absence of an adequate factual underpinning.
The Application for Leave to Appeal
It is necessary now to set out the chronology of events that led up to the granting of leave to appeal to this Court, because, as will shortly be seen, the granting of the appellant's application to adduce fresh evidence has become an issue in the appeal itself.
The present appellant filed a notice of application for leave to appeal to this Court on April 5, 1988. In that notice of application there is no mention of an application to adduce fresh evidence. On September 21, 1988, counsel for the respondent filed his factum on the application for leave, in which he submitted, at paragraph 1, as follows:
1. Although this matter was commenced prior to the new Rules on applications for leave to appeal, the Attorney General for Ontario, in the interest of saving time and costs is complying with the new Rules by submitting a factum and will not appear by counsel.
Counsel's reference to the "new Rules" is to the change in this Court's practice on applications for leave from a system of oral applications to a system of, in general, documentary applications. This change occurred on April 25, 1988 (twenty days after the notice of application for leave was filed in the present appeal), upon the proclamation into force (SI/88-87) of An Act to Amend the Supreme Court Act, R.S.C., 1985, c. 34 (3rd Supp.), s. 4, which enacted a new s. 43 for the Supreme Court Act, R.S.C., 1985, c. S-26. (See also SOR/88-247, which promulgated a new Rule 23 for the Rules of the Supreme Court of Canada.)
Two days after the filing of the respondent's factum on the application for leave, on September 23, 1988, the appellant filed a notice of motion to adduce fresh evidence in the appeal, consisting of an affidavit of the appellant and numerous exhibits thereto. The content of the fresh evidence, in brief, includes the opinions of the appellant 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 is evidence of specific instances in which particular counsel were threatened with the invocation of the impugned rules by opposing counsel, and, in one incident, by a Master of the Supreme Court of Ontario.
The respondent filed no documents in response to the notice of motion to adduce fresh evidence. In accordance with the position expressed in the factum of September 21, 1988, the respondent did not appear by counsel at the oral hearing of the application for leave held on December 5, 1988, before a panel of this Court comprising McIntyre J., Lamer J. (as he then was), and Wilson, La Forest and Sopinka JJ. However, the change in the Court's practice does not apply when a motion to which Rule 23 does not apply is joined with an application for leave. A motion to adduce fresh evidence is such a motion. We did not, therefore, have the benefit of oral or written argument in opposition to the application to adduce fresh evidence, and on the date of the oral hearing the application for leave to appeal and the application to adduce fresh evidence were granted: [1988] 2 S.C.R. vi.
The Issues
The appeal book filed jointly by the parties contains what purports to be an order of Chief Justice Dickson, dated October 30, 1989, stating constitutional questions for the purposes of this appeal. The purported constitutional questions coincide with the issues as stated in the appellant's factum, in the following terms:
1.What kind of evidentiary base, if any, is required before a person can challenge the constitutional validity of government legislation under s. 52 of the Constitution Act, 1982?
2.In bringing an application for declaratory relief pursuant to s. 52 of the Constitution Act, 1982, must the applicant establish adjudicative facts?
3.Are the decisions of this Honourable Court in Singh v. Minister of Employment and Immigration, Operation Dismantle Inc. v. The Queen, R. v. Morgentaler and R. v. Big M Drug Mart Ltd. to be interpreted in such a way so as to obviate the necessity of leading adjudicative facts in applications under s. 52 of the Constitution Act, 1982?
Inexplicably, the order was not taken out, and therefore in this appeal no constitutional questions were stated and no corresponding notices were served on the federal and provincial attorneys general under Rule 32 of the Rules of the Supreme Court of Canada. It is irregular, to say the least, for this Court to be presented with an order that has not been made as part of the record in an appeal. In the circumstances, however, this error is inconsequential. In their written and oral submissions, the parties did not refer to the order; and since the issues raised by the appellant in this appeal do not attack the constitutional validity, or urge the inoperability, of a federal or provincial statute or regulation, constitutional questions were not required to be stated in this case: see Rule 32(1). In any event, the questions presented by the appellant are so vague as to be incapable of a categorical answer.
The respondent Attorney General states the issues in this appeal as follows:
1. Has 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) been rendered moot by the Appellant's introduction of fresh evidence in this Court?
2. May the Appellant 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?
Mootness
The only issue considered by the courts below, in adjudicating upon the respondent's motion to quash, was whether the appellant could obtain, by an application under Rule 14.05(3)(h), the declaration sought in circumstances in which no facts are alleged in support of the relief claimed. The respondent now argues that, in view of the fresh evidence filed in this appeal, that issue is no longer alive in these proceedings. In the course of the hearing of this appeal, counsel for the respondent indicated that if the affidavit and exhibits that are now before us in the form of fresh evidence had been filed originally in support of the appellant's application under Rule 14.05(3)(h), the respondent would have cross-examined on that affidavit and proceeded to argue the application on its merits.
The response of counsel for the appellant, under questioning from the bench, was to say that if this appeal were allowed, the fresh evidence would not be submitted to the motions judge on the application, because the use to which the impugned rules could be put and the basic principle of the independence of the bar (both of which are the subject of the appellant's affidavit) are matters that can be judicially noticed or put forward in argument, rather than by way of evidence. The appellant's position is that the fresh evidence placed before this Court is merely illustrative of the sorts of matters that would be presented, in argument, on the application.
I pause to observe that the appellant's submissions at the hearing of the appeal concerning the significance of the fresh evidence are inconsistent with the submissions that were made in support of the application for leave to adduce the evidence. In an effort to come within this Court's requirements for the adduction of fresh evidence (see R. v. Stolar, [1988] 1 S.C.R. 480), the appellant submitted at the application for leave that the proposed evidence was in the nature of adjudicative facts, so as to satisfy the concern of the Court of Appeal that there be a factual underpinning. The appellant now contends that the fresh evidence is in the nature of legislative facts, and that no adjudicative facts are necessary to allow the application under Rule 14.05(3)(h) to proceed.
Furthermore, the appellant submitted in his factum on the application for leave that the proposed evidence ". . . bears directly upon a decisive issue relevant to these proceedings to wit: whether the impugned rules threaten the independence of the bar." The question whether the impugned rules threaten the independence of the bar relates to the merits of the application under Rule 14.05(3)(h), but is entirely irrelevant to the matter under decision. This appeal is concerned with a preliminary procedural issue that has no bearing on the merits of the appellant's original application under Rule 14.05(3)(h).
If the appellant's position (i.e., that the appellant's affidavit would not be submitted to the motions judge and that the appellant insists upon proceeding with no factual underpinning) and the respondent's position (i.e., that the respondent would have been content to cross-examine on the affidavit and proceed with the merits of the application) had been represented to us at the application for leave to adduce fresh evidence, it is possible -- even likely -- that the application would have been dismissed. The Court would not likely have heard an appeal in order to determine an issue which could so easily be cured by filing material that was already prepared. Had counsel for the respondent appeared at the hearing of the application for leave, this misunderstanding would probably not have arisen.
In light of the appellant's current submissions on the significance of the fresh evidence, it cannot be said that this appeal is moot. A decision is still required on the question whether the appellant's application under Rule 14.05(3)(h) can proceed without a factual underpinning. In any event, 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.
I turn now to the merits of the appeal.
The Need for Facts
This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack. For example, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 767-68, this Court declined to hold that the Retail Business Holidays Act, R.S.O. 1980, c. 453, infringed the s. 2(a) Charter rights of Hindus or Moslems in the absence of evidence about the details of their respective religious observance. Similarly, in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59, at p. 83, this Court declined to consider a s. 2(b) Charter challenge to certain provisions of the Liquor Control Act, R.S.N.B. 1973, c. L-10, in the absence of evidence on the nature of the conduct that was claimed to constitute "expression" within the meaning of s. 2(b).
It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent ...." Such facts 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: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.
In the present case, the appellant contends that he ought to be entitled to proceed with his application under Rule 14.05(3)(h) in the complete absence of adjudicative facts, and, moreover, that it is sufficient that he present in argument (but not prove by affidavit or otherwise) legislative "facts", in the form of textbooks and academic material about the prevailing understanding of the concept of the independence of the bar, and material concerning the legislative history of the impugned rules. In the view I take of this matter, the appellant is not entitled to proceed with the application as presently constituted.
In the time between the granting of leave to appeal in this matter and the hearing of the appeal, this Court heard and decided MacKay v. Manitoba, [1989] 2 S.C.R. 357, a case concerning an action for a declaration that certain provisions of The Elections Finances Act, S.M. 1982-83-84, c. 45, violated the guarantee of freedom of expression contained in s. 2(b) of the Charter. Cory J., speaking for a unanimous Court, stated, at pp. 361-62:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. . . . Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
Later, Cory J. stated, at p. 366:
A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position.
This is not to say that such facts must be established in all Charter challenges. Each case must be considered on its own facts (or lack thereof). As Beetz J. pointed out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 133:
There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter, and might perhaps be struck down right away; see Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional. [Emphasis added.]
The unconstitutional purpose of Beetz J.'s hypothetical law is found on the face of the legislation, and requires no extraneous evidence to flesh it out. It is obvious that this is not one of those exceptional cases. In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred. As Morgan put it, op. cit., at p. 162: ". . . the process of constitutional litigation remains firmly grounded in the discipline of the common law methodology."
The present case is, for these purposes, indistinguishable from MacKay, and I would respectfully adopt and apply Cory J.'s comments to these circumstances. The appellant here seeks to attack the impugned rules on the basis of their alleged effects upon the legal profession in Ontario. It would be, in my view, 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 (i.e., actual instances of the use or threatened use of the impugned rules) and legislative facts (i.e., the purpose, history and perceptions among the profession of the impugned rules).
We have discovered by a roundabout route that the appellant is in possession of the facts he needs to bring his challenge, by way of application, to a conclusion on the merits if he so chooses. As the application is presently framed, however, it cannot proceed without a factual foundation. It is not necessary that the appellant prove that the impugned rules were applied against him personally (standing not being an issue); but he must present admissible evidence that the effects of the impugned rules violate provisions of the Charter.
This appeal must, therefore, be dismissed. In view of the circumstances outlined above, there will be no order as to costs.
Appeal dismissed.
Solicitor for the appellant: Morris Manning, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.