Edgar v. Canada

Edgar v. Canada Collection Decisions of the Court of Appeal Date 1999-12-02 Docket numbers C28817 Judges Carthy, James Joseph; Austin, Allan McNiece; MacPherson, James C. Subject Civil Decision Content DATE: 19991202 DOCKET: C28817 COURT OF APPEAL FOR ONTARIO CARTHY, AUSTIN AND MACPHERSON JJ.A. BETWEEN: ) ) DOROTHY EDGAR ) Harvey Strosberg, Q.C. Plaintiff ) and Jasminka Kalajdzic (Appellant) ) for the appellant ) and ) ) ATTORNEY GENERAL OF CANADA, ) Julie Thorburn and HER MAJESTY THE QUEEN IN RIGHT ) Y.K. Anne Kim OF CANADA, represented by the MINISTER ) for the respondents OF NATIONAL REVENUE, and DWIGHT ) ST. LOUIS ) ) Defendants ) (Respondents) ) ) Heard: October 18, 1999 ) On appeal from the judgment of Zuber J. dated December 4, 1997 MACPHERSON J.A.: Introduction [1] The position of Minister of the Crown in Canadian government today is a complex, difficult and, I suspect, exhausting one. There are political, legislative and executive components to the position and a Minister is often engaged in the exercise of these components on local, national and even international stages. Almost every day most Ministers make a myriad of decisions. Those decisions affect not only Canadian public policy; often they have a direct impact on individuals as well. [2] In many domains, statutes require Ministers of the Crown to make decisions. An important question which occasionally arises is: must the Minister make a particular decision himself or herself, or can the decision be made by someone authorized by the Minister? That is the question which arises in this appeal. A. Factual Background [3] The appellant, Dorothy Edgar, is 70 years old and resides in the United States. From 1976 to 1979 she worked as an executive secretary for Edward Engel (“Engel”), who was the vice-president of finance at Amway Corporation (“Amway”). [4] In 1977, while Engel was employed at Amway in the United States, he discovered that Amway and its Canadian subsidiary, Amway of Canada Limited, were defrauding Canadian customs authorities through an elaborate system of dummy invoices and books. The fraud was extensive, incriminating the highest ranks of the corporation. Through its fraudulent representations, Amway gained and the Government of Canada lost many millions of dollars. [5] In January 1979, Engel resigned from Amway and Edgar left at the same time. In April 1979 Canadian customs authorities became aware of fraudulent activity at Amway. Dwight St. Louis (“St. Louis”), the Regional Manager of Customs Investigations in the London region, telephoned Engel and asked him to help with the investigation of the Amway fraud. Engel refused. St. Louis then contacted Edgar who agreed to meet him. At the meeting Edgar provided St. Louis with crucial documents. For example, Edgar gave St. Louis a copy of a memorandum to Amway’s chairman of the board that outlined the fraudulent scheme and contained the chairman’s handwritten comments, thereby evidencing his knowledge of, and complicity in, the fraudulent practices. Later, in an internal memorandum to the Minister of National Revenue, a senior departmental official underlined the significance of the documents provided by Edgar by saying that they “revealed the modus operandi employed to perpetrate the fraud.” [6] The RCMP eventually became involved and gained access to the documents that had been provided to Canada Customs. Both Engel and Edgar co-operated with the RCMP in the criminal prosecution of Amway and its Canadian subsidiary. On November 10, 1983 the two companies pleaded guilty to the criminal charges and were fined $25,000,000. For her assistance, Edgar was paid $31,000 by the RCMP. She in turn signed a release discharging the RCMP from any further obligation to her. [7] Soon thereafter, the Ministry of National Revenue launched a civil action against the Amway companies. The Ministry asked Engel to co-operate in the preparation of its case and to stand ready to testify if requested. Engel agreed and signed a formal contract with the Ministry. He ultimately received $320,000 for his assistance. The Ministry did not ask Edgar to provide any assistance in the civil suit. [8] In September 1989 the Amway companies settled the civil action for $45,000,000. The “net proceeds” (the settlement monies minus administrative costs and duties and taxes payable) the government actually received were $16,184,294. [9] At all material times, regulations under the Customs Act and the Excise Act authorized the payment of an award to an individual who “contributed substantially to the detection of a violation of the customs laws or the Excise Act.” For purposes of this appeal, the relevant portions of the Customs and Excise Award Payment Regulations, C.R.C., C. 457 (1978), were: 2. In these Regulations, “Minister” means the Minister of National Revenue; … 3.(1) Subject to these Regulations, where (a) it is shown to the satisfaction of the Minister that information or other aid received from any person has contributed substantially to the detection of a violation of the customs laws or the Excise Act, and (b) in the opinion of the Minister an award is merited, the Minister may, in his sole discretion, authorize payment of an award in an amount that he considers appropriate. (2) A decision of the Minister pursuant to subsection (1) authorizing the payment of an award in an amount or rejecting a recommendation for the payment of an award is final. 4. (1) Where a seizure, forfeiture or penalty has been effected or imposed and there are net proceeds, an award may be paid in respect of such net proceeds in an amount equal to … (C) $2,000 plus 10 percent of the amount by which the net proceeds exceed $10,000 if the net proceeds exceed $10,000. [10] On December 31, 1986, within weeks of Engel requesting payment for his assistance in the civil action, Edgar made a written request for “the maximum award”. She did so in a letter to Edward Sojonky, Q.C., senior counsel in the Department of Justice. Her request was supported by St. Louis, the customs investigator she had met and to whom she had given the vital Amway documents. Indeed, on July 9, 1980, more than six years before Edgar requested an award, St. Louis prepared a confidential Investigator’s Report for senior officials in the Ministry in which he said this about Edgar and her role in the Amway matter: 25. A confidential informant has been instrumental in providing information or advising where it could be obtained, assisting this department and the RCMP to prepare the civil and criminal cases respectively. In so doing, this person has suffered personal harassment and in light of the scope of this fraud it is recommended that the maximum Informant’s Award be considered. [11] Edgar’s request for an award was referred to James Johnston, the Director of Investigations in the Department of Customs. Johnston concluded that Edgar was merely a conduit for Engel; accordingly, he advised her that she would not receive an award separate from the one granted to Engel. [12] Edgar pursued her claim within the Ministry. Eventually, it arrived on the desk of Ruth Hubbard, the Deputy Minister. Hubbard met with Effie Triantafilopoulos, a lawyer acting on behalf of Edgar’s solicitor. No decision regarding Edgar’s claim was made at this meeting. Hubbard met with Triantafilopoulos again in April 1990. Either at that meeting or shortly thereafter by telephone, Hubbard advised Triantafilopoulos that Edgar’s claim would not be paid, although a reconsideration was possible if additional information was presented to the Ministry. [13] In 1993, Edgar commenced an action against the Ministry. She claimed damages under four headings – (1) breach of contract, on the basis that St. Louis, on behalf of the Ministry, had promised her an award; (2) breach of warranty of authority by St. Louis; (3) negligence, in that personnel within the Ministry failed to bring St. Louis’ recommendation to the Minister’s attention for his decision; and (4) quantum meruit, because the Crown had received the full benefit of Edgar’s work product for which she was not fairly compensated. [14] The trial of the action took place before Zuber J. on November 24, 25 and 27 and December 1 and 2, 1997. On December 4, 1997 Zuber J. rendered his decision, dismissing all of Edgar’s claims. He held that there was no evidence of a specific offer and acceptance; hence there was no contract. Moreover, he held that St. Louis had no actual or ostensible authority to commit the Ministry to an award, so there would be no breach of warranty of authority. On the negligence issue, he held that the Ministry was not negligent in failing to refer the matter to the Minister for his decision. His reason for this conclusion was that the Deputy Minister, Ruth Hubbard, made the decision and that this was permitted by section 24(2)(c) of the federal Interpretation Act, R.S.C. 1985, c. I – 21, which provides that “a Minister of the Crown” includes “ his … deputy”. Finally, Zuber J. dismissed the quantum meruit claim on the basis that the Ministry was not unjustly enriched at Edgar’s expense since in its civil suit against Amway it had merely recovered what was lawfully owing to it. [15] Although he dismissed all of Edgar’s claims, Zuber J. did direct his mind to the question of damages. He stated that if the quantum meruit claim had succeeded, an award of $200,000 would have been appropriate. He also indicated that if the negligence claim had succeeded, he would have assessed damages for Edgar’s lost opportunity to obtain a decision from the Minister at $25,000. [16] On the issue of costs, Zuber J. did not order Edgar to pay the Ministry’s costs because “she could have been treated a little better by the Ministry than she has been” (Reasons, at p. 22). However, he did not accept Edgar’s argument that the Ministry should pay her costs of the action because this was not “one of those rare cases in which the loser should receive costs” (Reasons, at p. 24). [17] Edgar appeals Zuber J.’s judgment. She does not challenge his conclusions on the breach of contract or breach of warranty of authority issues. However, she maintains that Zuber J. erred in not allowing her to recover damages based on the negligence of the Ministry and on the equitable doctrine of quantum meruit. She also appeals the trial judge’s decision not to award her the costs of the action even though she was the losing party. B. Legal Issues [18] The issues which must be addressed on this appeal are: (1) Did the trial judge err in finding that s. 3(1) of the Customs and Excise Award Payment Regulations did not require the Minister himself to authorize or refuse a payment to the appellant? (2) If the answer to Question (1) is Yes”, what is the consequence of the Minister’s failure to make a decision with respect to a possible award to the appellant? (3) Did the trial judge err in refusing to award Edgar her costs of the action? C. Analysis (1) Who was required to make the decision? [19] Edgar dealt with several people within the Government of Canada in her attempt to obtain an award for her assistance in the Amway matter. She received $31,000 from the RCMP for her assistance in the criminal case, so obviously she had dealings with personnel in that institution. With respect to the civil action, Edgar had discussions with St. Louis, an employee of the Ministry of National Revenue, about an award. She made her first formal request for an award in a letter to Edward Sojonky, Q.C., senior counsel in the Department of Justice. Her request was referred to, and considered by, James Johnston, the Director of Investigations in the Department of Customs; he rejected her claim. However, Edgar pursued her claim higher in the Ministry. Ultimately, the Deputy Minister, Ruth Hubbard, met on at least two occasions with an agent for Edgar’s solicitor; she too rejected Edgar’s claim. [20] It is obvious that several people within the Government of Canada were involved in the consideration of whether Edgar should receive an award. The trial judge concluded that the final decision was made by the Deputy Minister, Ruth Hubbard. In my view, he was correct. [21] The question which arises from this conclusion is: could the Deputy Minister make the decision concerning an award to Edgar? Or was this decision one that had to be made by the Minister personally? [22] The starting point for analysis on this central issue is s. 3(1) of the Customs and Excise Award Payment Regulations which, for ease of reference, I set out again: 3.(1) Subject to these Regulations, where (a) it is shown to the satisfaction of the Minister that information or other aid received from any person has contributed substantially to the detection of a violation of the customs laws or the Excise Act, and (b) in the opinion of the Minister an award is merited, the Minister may, in his sole discretion, authorize payment of an award in an amount that he considers appropriate. [Emphasis added.] [23] Edgar contends that the words “in his sole discretion” require the Minister to make decisions about awards personally. The Ministry’s position is that the Minister’s decision in this domain, as in most domains, is one that can be properly made by the deputy minister. [24] There is in public law a principle known as “the Carltona principle”. It takes its name from the famous decision of the English Court of Appeal in Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), a wartime case dealing with the requisition by the government of a factory that manufactured food products. Carltona stands for the proposition that decisions entrusted by statute to a Minister of the Crown can also be made by the Minister’s representatives or officials if properly authorized to do so. The reason for this is that in modern government there are simply so many decisions to be made that the wheels of government would grind to a halt if they all had to be made by the Minister personally. As expressed by Lord Greene, M.R., at p. 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. [25] In Canada, the Carltona principle has been affirmed by statute and in the case law. At the federal level, the statutory affirmation is found in s. 24(2) of the Interpretation Act which provides: 24(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include … (c) his or their deputy [26] The leading case affirming the Carltona principle in the context of Canadian government is Regina v. Harrison, [1977] 1 S.C.R. 238. In that case, Dickson J. stated, at pp. 245-46: [W]here the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. [27] Neither s. 24(2) of the Interpretation Act nor the case law establishes the Carltona principle as an absolute rule. Thus, s. 3(1) of the Interpretation Act potentially qualifies s. 24(2): 3. (1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act. [Emphasis added.] [28] With respect to the case law, the leading Canadian authorities establish that several factors must be considered before determining whether the general maxim delegatus non potest delegare, or the Carltona exception to this maxim, applies in a particular situation. In Harrison, supra, Dickson J. identified those factors as “the language, scope or object of a particular administrative scheme” (at p. 245). In Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375 at 381, Pratte J. said: In R. v. Harrison, my brother Dickson, speaking for the court said, at p. 245, that “a power to delegate is often implicit in a scheme empowering a Minister to act.” Whether such power exists however or, in other words, whether it may be presumed that the act will be performed not by the Minister but by responsible officers in his Department will depend on the intent of Parliament as it may be derived from, amongst other things, the language used in the statute as well as the subject matter of the discretion entrusted to the Minister. [Emphasis added.] [29] With respect to the language of the statute, the pivotal words in s. 3(1) of the regulation are “the Minister may, in his sole discretion”. There is no doubt that if s. 3(1) said simply “the Minister may”, a decision could be made by the Minister and by the Deputy Minister. Both s. 24(2) of the Interpretation Act and the case law would support this result. However, s. 3(1) of the regulation employs the additional words “in his sole discretion”. What do the words mean? [30] A good starting point is the dictionary. In The New Oxford Dictionary of English (1998), the adjective ‘sole’ is defined as “one and only” or “belonging or restricted to one person or group of people.” The adverb ‘solely’ is defined as “not involving anyone or anything else; only” (at p. 1771). It seems to me that these definitions strongly support the appellant’s contention that the words “in his sole discretion” in s. 3(1) require the Minister personally to make the decision. [31] There is also strong case authority supporting the appellant’s contention. In Ramawad v. Minister of Manpower and Immigration, supra, the Supreme Court of Canada interpreted the words “in the opinion of the Minister” in the Immigration Act as requiring that only the Minister or someone specifically authorized elsewhere in the statute could make a deportation order. It is worth noting that s. 3(1) of the regulation in issue in the present appeal contains not only the words “in his sole discretion”; in s. 3(1)(b) there are also the words “in the opinion of the Minister.” These latter words are identical to the words interpreted by the court in Ramawad. [32] An equally strong case supporting the appellant’s position is Attorney General (Quebec) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831. In that case a Deputy Minister of Social Affairs in the Government of Quebec declared that a company’s asphalt and crushing plants were a public nuisance under the Public Health Act, R.S.Q. 1964, c. 161. One of the bases on which he purported to act was s. 55 of the Act which provided: 55. The Minister may himself exercise directly the powers vested in the municipal authorities by sections 46 to 55, in the cases which he deems to be urgent. [33] The Attorney General of Quebec supported the order made by the Deputy Minister of Social Affairs. Before the Supreme Court of Canada he referred to “the general principles of the common law, according to which the powers of a Minister of the Crown are allegedly delegated by implication to a Deputy Minister” (at p. 837). [34] In a unanimous decision, the Supreme Court rejected this submission. In its per curiam reasons, the court said, at p. 838: Section 55 provides that, in cases which he deems to be urgent, the Minister may exercise directly the powers vested in the municipal authorities by ss. 46 to 55, but he must then exercise them himself. When questioned at the hearing on the meaning and scope of the word “himself”, counsel for the appellant answered that this was a redundancy. We cannot agree. The legislator does not speak in vain. … [W]e feel that he can only exercise the emergency powers conferred by s. 55 if he is exercising them himself, that is, in person. This is the usual meaning and the one generally given to it by dictionaries. [35] Turning to the second factor mentioned in Ramawad v. Minister of Manpower and Immigration, supra, namely “the subject matter of the discretion entrusted to the Minister”, the subject matter of s. 3(1) of the regulation is awards to individuals who help the government recover unpaid customs and excise duties. This is an important matter, but is it one requiring the personal attention of the Minister? [36] In my view, it is impossible to answer this question in the abstract. In many instances, if an individual’s assistance leads to the recovery of a small or even modest recovery of unpaid duties, common sense would suggest that the Minister should not have to be involved in the award decision. [37] On the other hand, it is worth recalling s. 4(1)(c) of the regulations which provides for potential awards of $2,000 plus 10 percent of the amount by which the net proceeds exceed $10,000. In cases where the government makes a substantial recovery of unpaid duties, thus giving rise to the possibility of a substantial award, common sense might suggest that a Minister of the Crown should make the decision because it involves public funds. The present case might fit within this category. The government recovered $16,184,294 in “net proceeds” from Amway. Accordingly, Edgar is eligible for a maximum potential award of more than $1.6 million. [38] In the end, however, I do not suggest that s. 3(1) of the regulation should be interpreted in a variable fashion, requiring the Minister to make decisions when a large amount of money is at stake and letting the Deputy Minister make the decisions with respect to small or modest amounts. Rather, I conclude that “the subject matter of the discretion entrusted to the Minister”, the second factor in Ramawad, supra, is a neutral factor in the present appeal. [39] The respondents’ argument on this issue is that the interpretation of s. 3(1) of the regulation as requiring the Minister to make the decision about an award to Edgar could lead to an anomalous result. That is because s. 8(2) of the Excise Act during the time in question provided: 8(2) The Minister may authorize the Deputy Minister to exercise on his behalf any of the powers conferred on the Minister by this Act. [40] Based on this provision, the respondents make this argument in their factum: 39. Given that the Awards Regulations in effect applied to both the Customs Act and the Excise Act, if the Carltona principle as codified in subsection 24(2) of the Interpretation Act was not applied so that the term “Minister” in the Regulations extended to include the Deputy Minister, it is respectfully submitted that an anomaly would have resulted: claims of individuals who detected a violation of the Customs Act would have been entitled to consideration by the Minister personally whereas claims arising out of the detection of a violation of the Excise Act could properly be considered and determined by the Deputy Minister. It is submitted that there was nothing in the Awards Regulations or the two statutes themselves which indicated that this was intended by Parliament. [41] My response to this is a simple one. Although the potential for an anomalous result was present, in fact none was created. The Customs and Excise Award Payment Regulations, promulgated under both the Customs Act and the Excise Act, authorized, in s. 3(1), the Minister “in his sole discretion” to make decisions concerning awards. The regulation is silent about a role for the Deputy Minister. Hence the anomaly that might have been created if the government had acted pursuant to s. 8(2) of the Excise Act did not arise. [42] In conclusion, the Interpretation Act provides that “Minister” includes “his or their deputy” (s. 24(2)). However, this is subject to a limitation: “unless a contrary intention appears” (s. 3(1)). [43] The leading cases establish that a contrary intention does appear when Parliament uses language that modifies the basic words “the Minister may”. In Ramawad v. Minister of Manpower of Immigration, supra, the Supreme Court of Canada held that the words “in the opinion of the Minister” require the Minister personally (or someone else specifically authorized by the statute) to make the decision. Those precise words are also present in s. 3(1) of the regulation in issue in the present appeal. In Attorney General (Quebec) v. Carrières Ste-Thérèse Ltee, supra, the court held that the word “himself” qualifying Minister meant “in person”. It is difficult for me to see any logical difference between “himself” and “in his sole discretion” which is the second set of relevant words in s. 3(1). Both, in common parlance, suggest exclusivity. [44] Accordingly, on the first issue my conclusion is that the trial judge did err in finding that s. 3(1) of the Customs and Excise Award Payment Regulations did not require the Minister himself to authorize or refuse a payment to the appellant. (2) Consequences of Minister’s failure to make a decision [45] The appellant contends that the Minister’s failure to make a decision about an award for Edgar constitutes negligence. In other words, the government had a duty to ensure that a decision was made by the appropriate person, it breached that duty, and Edgar was injured through the ‘lost opportunity’ to receive an award. [46] I disagree with these propositions. Throughout the 1980s and 1990s it appears that all parties were unaware of the relevant regulation. In fact it was repealed in 1986, long after the facts giving rise to Edgar’s claim arose, but before her application for an award. Edgar and the Ministry placed the matter before various officials in government including, ultimately, the Deputy Minister of National Revenue. Edgar played a full and active role in this process. She did so without objection. In such circumstances, it would be wrong, in my view, to enunciate an absolute rule to the effect that a decision unintentionally made by the wrong person in a government department constitutes negligence. [47] The appellant also contends that the government was unjustly enriched by not making an award to Edgar and that, therefore, the trial judge erred in not compensating her on a quantum meruit basis. [48] Again, I disagree. The problem with this submission is that it misses the point that an award to Edgar was only a possible award; it depended on the exercise of the decision-maker’s discretion. The Minister, the lawful decision-maker, could have decided to make no award to Edgar. [49] At this juncture, the situation is this: Edgar’s legal claims grounded in breach of contract, breach of warranty of authority, negligence and unjust enrichment are without foundation. However, Edgar has never received what in law she was entitled to receive – a decision by the Minister concerning her formal application for an award under the regulations in force at the relevant time. In light of this unusual conjunction of entitlements and non-entitlements, the ultimate question is: what should be done? [50] The first option, advanced by the respondents, is to dismiss the appeal. This option has the conceptual advantage of conforming to the way the action was pleaded since Edgar chose to proceed by way of action rather than by judicial review of the decision made by Hubbard. [51] The obvious downside of this option is that a 70-year-old woman who clearly helped the government 20 years ago and was involved in negotiations with the government for almost 15 years and in litigation for six years will have to commence litigation again. And what is the probable result of the new litigation grounded in judicial review? In light of the analysis in part (1) of this section, it can be presumed that the result would be reversal of the Hubbard decision on jurisdictional grounds and a declaration that the award decision must be made by the Minister. In short, a straight dismissal of this appeal would be both unfair and an unnecessary waste of judicial resources. [52] The second option, flowing from the logic of the appellant’s quantum meruit claim, is that this court should exercise its discretion and, based on the record, fix the amount of an award for Edgar. [53] The primary attraction of this option is that it brings to an end a 20-year saga. Unfortunately, it suffers from several defects. First, and dramatically, it is inconsistent with the conclusion reached on the principal issue in the appeal. If this court concludes that the award decision is the Minister’s “in his sole discretion”, it would be startling to make the decision ourselves before the Minister has had a chance to exercise his discretion. [54] Second, there is an evidentiary problem. This court has before it a record in a legal action. That record may be very different from the material that would be placed before a Minister called upon to make a decision in person. [55] Third, there is a conceptual problem with this option. The courts cannot, as a general rule, issue mandatory injunctions against the Crown. Yet, if this court were to act “as if it were a properly informed Minister” it would, in effect, be issuing just such an order. The court would be saying that the Minister’s discretion must be exercised in this way and take into account these factors and that the government must therefore pay this amount of public money to this person. In other words, the court would be doing indirectly what it could not do directly. [56] For these reasons, grounded in administrative law and Crown immunity principles, this option seems to be an unwarranted interference with the separation of powers between government and the courts, and especially with the Minister’s jurisdiction to make an award decision “in his sole discretion.” [57] The third option, the appellant’s ‘fallback’ submission, is that the court should simply declare that the Minister must personally make the decision concerning an award to Edgar. [58] In my view, this is the best of the three options. Legally, it is permitted by s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43. As to whether a declaration should be made in this case, the parameters for issuing a declaratory order were stated succinctly by Dickson J. in Solosky v. Canada, [1980] 1 S.C.R. 821 at 832 (quoting from Hudson, “Declaratory Judgments in Theoretical Cases: The Reality of the Dispute” (1977), 3 Dal. L. J. 706): The declaratory action is discretionary and the two factors which will influence the court in the exercise of its discretion are the utility of the remedy, if granted, and whether, if it is granted it will settle the questions at issue between the parties. [59] Both these factors are present in this appeal. The remedy is both useful and necessary in that it settles conclusively the crucial issue of who must make a decision respecting Edgar’s claim. It informs everyone, including the Minister (who is a party to the action) that, under the Customs and Excise Award Payment Regulations, only he can decide the appellant’s claim and that he has not in fact done so in the past. Thus, in my view, the issuance of the declaration is logically and legally defensible; it strikes a proper balance between the privileged position of a Minister of the Crown and the unusual, perhaps exceptional, facts of this appeal. (3) The costs issue at trial [60] The trial judge held that this was not “one of those rare cases in which the loser should receive costs” (Reasons, at p. 24). Although this issue is moot in light of the disposition I propose for this appeal, I want to record that I agree with the trial judge’s analysis on this point. Disposition [61] The appeal is allowed. It is declared that only the Minister can make a decision under s. 3(1) of the Customs and Excise Award Payment Regulations. It is further declared that the Minister has not yet made a decision with respect to the application for an award submitted by the appellant, Dorothy Edgar. [62] I add this postscript. Ms. Edgar is now 70 years old. Her activities which were of assistance to the government took place in 1979 and 1980. She applied for an award in 1986. The Ministry’s decision not to make an award to her was not made until 1990. Litigation was commenced in 1993. The trial decision was rendered in 1997; the appeal decision is rendered in November 1999. This chronology invites the suggestion – I put it no higher – that steps be taken within the Ministry of National Revenue to place all of the relevant material before the Minister so that he, in the midst of a busy schedule and onerous duties, can exercise “his sole discretion” as expeditiously as possible. [63] The appellant is entitled to her costs of the appeal and the trial. Released: December 2, 1999 “J.C. MacPherson J.A.” “I agree J.J. Carthy J.A.” “I agree Austin J.A.” _______________________________ 1 Date format is yyyymmdd 2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS