Appellants factum - Woodward & Company

34by the evidence, then the Court can make a declaration of rights in narrowerterms than those requested.Indeed a court may grant a declaration, even if no declaration is requested in thestatement of claim. If a court has that power, then clearly a court can grant adeclaration in narrower terms than those requested. 2152. The Trial Judge’s reliance on Biss117. Notwithstanding this broad discretion to grant declaratory relief, the Trial Judgerelied on the English Court of Appeal’s judgment in Biss for the proposition that “theplaintiff must make up his mind and set out in his pleadings exactly what declaration heseeks”. 216 This statement was made by Harman L.J. in the Biss decision. 217118. The plaintiffs in Biss sought declarations that 72 acres or alternatively 35 acresof a property were eligible for a caravan site licence as an “existing site” for thepurposes of the governing legislation. The trial judge held that 9 acres constituted an“existing site”, but this was overturned on appeal as an invention of the trial judge. 218The English Court of Appeal held that there was no evidence to support finding 9 acres,or any other portion of the property, qualified as an “existing site”. 219 The appeal wasdecided on this basis.119. Harman L.J. proceeded to suggest that the plaintiff would have been barred fromdeclaratory relief to any portion of the property other than the pleaded 35 or 72 acresbecause “he who seeks a declaration must make up his mind and set out in his pleadingwhat the declaration is”. 220 These comments were obiter.215 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470, [1993] 5 W.W.R. 97 (B.C.C.A.), paras. 872-73[underscore added] and authorities cited therein; see also Macfarlane J.A. (Taggart J.A. concurring) for themajority, para. 27 [“This is not a case in which the plaintiffs seek a declaration narrower in terms than thoserequested at trial …”].216 Trial Decision, para. 128 [underscore added].217 Quoted in the Trial Decision, at para. 127.218 Biss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (C.A.).219 Biss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (C.A.) at pp. 552-54 (per Harman L.J.), pp. 558-59(per Davies L.J.), p. 560 (per Russell L.J.).220 Biss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (C.A.) at 553-554.