Le
Dain,
J
(concurred
in
by
Pratte
and
Urie,
JJ):—This
is
an
appeal
from
a
judgment
of
the
Trial
Division
striking
out
a
Statement
of
Claim
and
dismissing
an
action
for
declaratory
relief.
The
circumstances
out
of
which
the
proceedings
arise
are
set
out
in
the
reasons
for
judgment
in
the
appeal
between
the
same
parties
(Court
Number
A-485-75)
from
a
judgment
of
the
Trial
Division
dismissing
an
originating
notice
of
motion
for
relief
in
the
nature
of
prohibition,
mandamus,
injunction
and
certiorari.
The
appellants’
action,
instituted
after
the
judgment
and
appeal
in
that
case,
seeks
declarations
to
the
general
effect
that
the
filter
tip
portion
of
a
cigarette
should
be
included
in
determining
its
length
for
purposes
of
duty
under
the
Excise
Act,
RSC
1970,
c
E-12.
The
respondent
Benson
&
Hedges,
supported
by
the
other
respondents,
brought
a
motion
to
strike
the
appellants’
statement
of
claim
on
the
ground
that
the
appellants
did
not
have
a
cause
of
action
and
that
the
action
was
frivolous
or
vexatious
and
an
abuse
of
the
process
of
the
Court.
The
respondents
contended
that
the
appellants
were
not
aggrieved
by
the
action
complained
of
and
had
no
status
to
take
the
action,
in
that
other
proceedings
with
similar
conclusions
were
before
the
court
(namely,
the
application
for
relief
in
the
nature
of
prohibition,
mandamus,
injunction,
and
certiorari,
referred
to
above),
and
in
that
the
conclusions
of
the
statement
of
claim
were
not
those
of
an
action
for
declaratory
relief
but
conclusions
for
an
executory
judgment.
The
trial
judge
struck
out
the
Statement
of
Claim
and
dismissed
the
action
with
costs
on
the
ground
that
the
action
was
an
abuse
of
the
process
of
the
Court.
He
reasoned
that
the
action
for
declaratory
relief
raised
identical
issues
to
those
which
were
before
the
Court
on
the
originating
notice
of
motion
for
relief
in
the
nature
of
prohibition,
mandamus,
injunction
and
certiorari,
and
that
no
relief
could
be
obtained
by
the
action
that
could
not
be
obtained
by
the
originating
notice
of
motion.
He
held
that
the
appellants
had
put
nothing
additional
before
the
Court
to
support
their
claim
to
status
or
locus
standi,
except
a
departmental
memorandum
confirming
the
change
of
policy
complained
of,
which
did
not
add
anything
to
their
case,
and
he
concluded
that
“it
may
be
inferred
(1)
that
the
plaintiffs
have
an
ulterior
motive,
mainly
to
seek
to
frustrate
competition
from
the
Corporate
defendants,
and
they
seek
to
do
so
by
a
redundancy
of
actions;
and
(2)
that
they
have
suffered
no
damages”.
The
policy
memorandum
referred
to
is
dated
August
7,
1975
from
W
M
Horner,
Chief,
Excise
Duty
to
regional
directors
and
reads
as
follows:
The
Department
has
changed
its
policy
regarding
excise
duty
assessment
on
cigarettes.
.
P
®
’
?
policy
required
that
the
filter
attached
to
a
cigarette
was
to
be
included
in
the
determination
of
the
length
of
a
cigarette,
ie
exceeding
or
not
exceeding
four
inches,
and
in
determining
the
weight
per
thousand
cigarettes,
ie
exceeding
or
not
exceeding
three
pounds
per
M.
The
new
policy
will
exclude
the
filter
when
determining
the
length
or
weight
of
cigarettes
for
duty
purposes.
Attached
is
a
copy
of
the
revised
Circular
ED
209-9
that
will
be
published
and
distributed
in
the
near
future.
Please
ensure
that
excise
officers
and
licensees
in
your
region
are
advised
of
this
change.
As
the
learned
trial
judge
says,
this
memorandum
adds
nothing
of
significance
to
the
circumstances
before
the
Court
in
the
other
appeal
which
involves
the
originating
motion
for
relief
in
the
nature
of
prohibition,
mandamus,
injunction
and
certiorari.
It
merely
confirms
in
writing
the
change
of
administrative
policy
that
was
the
basis
of
the
other
proceedings.
I
cannot
agree,
however,
that
the
appellants
do
not
seek
by
their
action
for
a
declaration
any
relief
that
could
not
be
obtained
by
the
other
proceedings.
An
action
for
a
declaration
may
lie
where
certiorari,
prohibition,
mandamus
or
injunction
may
not
lie,
and
this
is
particularly
true
where
servants
of
the
Crown
are
involved.
Under
the
Rules
declaratory
relief
cannot
be
sought
by
originating
motion
but
only
by
an
action.
Thus,
with
respect
to
some,
at
least,
of
the
objections,
other
than
the
lack
of
status
or
locus
standi,
against
the
forms
of
relief
sought
in
the
other
proceedings,
it
cannot
be
said
that
the
action
for
a
declaration
is
frivolous
or
vexatious
or
an
abuse
of
the
process
of
the
Court.
What
is
fatal
to
it,
I
believe,
and
sufficient
to
justify
the
conclusion
reached
by
the
trial
judge
is
the
principal
ground
for
dismissing
the
other
proceedings—that
the
appellants
lack
Status
or
focus
standi.
It
is
sufficient,
on
this
issue,
to
refer
to
the
reasons
for
judgment
in
the
other
appeal.
The
requirement
of
focus
standi
for
an
action
for
a
declaration
is
not
less
strict,
in
a
case
such
as
this,
than
it
is
for
injunction.
Cowan
v
CBC,
[1966]
2
OR
309.
I
would
accordingly
dismiss
the
appeal
with
costs.
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