



COURT OF APPEAL FOR ONTARIO

CITATION: Yasin v. Ontario, 2018 ONCA 417

DATE: 20180503

DOCKET: C64347

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)

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. Yasins 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 courts 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 appellants Canadian identity
documents or to satisfy Canada Revenue Agency of the appellants 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
appellants 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 appellants 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 appellants 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.


