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Appeals - Mootness

. Fontaine v. Canada (Attorney General)

In Fontaine v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered mootness in the context of an appeal:
[14] An appeal is moot where the factual substratum of the appeal has disappeared. This can occur where the order under appeal has been performed or is otherwise spent: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 354. Where an appeal is moot, the court may nevertheless exercise its discretion to hear the appeal, considering such factors as the ongoing adversarial context, concerns for judicial economy and sensitivity to the role of the courts: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17. The onus is on the party seeking to permit a moot appeal to proceed to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals: Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566, at para. 17.
. Hudson Bay Railway Company v. Rosner

In Hudson Bay Railway Company v. Rosner (Fed CA, 2021) the Federal Court of Appeal held that an appeal was not moot when it's resolution might avoid related compensation claims:
[23] I agree with HBR that the dispute is not moot. As Mr. Rosner has correctly noted, mootness applies when a decision will not resolve a controversy that might affect the rights of the parties (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at p. 353, 57 D.L.R. (4th) 231). However, the order sought by HBR from this Court would resolve a controversy, namely that of whether HBR should continue to be exposed to claims for compensation under the abovementioned provisions in the Act. Moreover, if the Agency’s decision is set aside, HBR’s legal exposure in relation to its failure to repair the line would cease, thereby affecting its legal rights with regard to potential claimants. For these reasons, I am satisfied that the dispute is not moot.
. R. v. Slingerland

In R. v. Slingerland (Ont CA, 2020) the Court of Appeal considered a criminal appeal rendered moot by the death of the defendant:
The Governing Principles

[8] The traditional view in Canada is that a criminal appeal ought never to survive the death of an accused. The death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved: R. v. Cadeddu (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless recognized some discretion to proceed to judgment despite the death of the accused: Cadeddu, at pp. 118-119.

[9] In Smith, where the accused was the appellant, the Supreme Court of Canada held that the appellant’s death rendered the appeal moot. But the court acknowledged a discretion to proceed with a moot appeal, provided the discretion was exercised in accordance with judicial principles. The court emphasized, however, that this discretion should be exercised only in exceptional circumstances where the appellant’s death is survived by a continuing controversy which requires resolution in the interests of justice: Smith, at paras. 4, 20.

[10] Three principal rationalia underlie the policy or practice governing the continuance of moot appeals and inform the exercise of the circumscribed discretion to determine the appeal despite the party litigant’s death:
i. the existence of a truly adversarial context;

ii. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve the issue; and

iii. the respect shown by courts to limit themselves to their proper adjudicative role, as opposed to making freestanding legislative-type pronouncements.
See Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 358; Smith, at para. 39.

[11] The Borowski court outlined a two-step approach to the hearing of moot appeals. The first step involves an inquiry and determination whether the required tangible and concrete dispute has disappeared and the issues have become academic. If the case ascends the first step, the court should then determine whether it should exercise its discretion to hear the case: Borowski, at p. 353; Smith, at para. 33.

[12] In the end, the general test an appellate court should apply when considering whether to proceed with an appeal rendered moot by the death of an accused, is whether there exist special circumstances that make it “in the interests of justice” to proceed: Smith, at para. 50.
. Khan v. Allstate Insurance Company of Canada

In Khan v. Allstate Insurance Company of Canada (Div Ct, 2020) the Divisional Court engaged in an interesting mootness consideration in an appeal context:
[3] Mr. Khan’s statutory accident benefits claim was settled on September 20, 2019, so that there is longer a live controversy between the parties. Nonetheless, the appellant argues that the court should exercise its discretion to decide whether the LAT [edit: Licence Appeals Tribunal] has jurisdiction to grant interim statutory benefits.

[4] The appellant argues that the issue of interim statutory benefits is “evasive of review” because ordinarily it becomes moot by the time it can be heard in this court. Mr. Khan argues that the issue is of public importance because it “may have a practical impact on a group of insureds with disabilities of whom Mr. Khan is representative, but not unique: insureds with disabilities who urgently require care or income and whose safety or livelihood cannot sustain a prolonged wait for a final decision.”[1][5] An appeal is “moot” when it raises only hypothetical questions. A court exercising its discretion whether to entertain a moot appeal considers the following factors, which are set out in the Supreme Court of Canada’s decision in Borowski v. Attorney General for Canada[2]:
I. The court’s competence to resolve “legal disputes is rooted in the adversary system.” It is important that parties having a direct interest in the outcome, or the collateral consequences of the outcome, provide the court with the necessary adversarial context.[3]

II. Wise and efficient use of judicial resources. Ordinarily, this is a reason not to decide cases where there is no live controversy between the parties, but sometimes “the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it.”[4]

III. The Court’s awareness of its proper law-making function. “The court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the right of parties may be viewed as intruding into the role of the legislative branch.”[5]
[6] Under the third factor set out in Borowski, this court must be mindful of its proper role and the proper role of the administrative process below. The decision of the adjudicator is not binding on other adjudicators. It does not preclude another claimant from seeking interim benefits in a proper case. If a future claim for interim benefits is made and denied, it will be open to that claimant to seek an expedited judicial review in this court. Not all claimants will settle their underlying claims, as Mr. Khan did, with the effect of rendering the application for interim benefits moot. Only if it could be shown that all claims for statutory benefits will be adjudicated on their merits before judicial review can be held over a denial of interim benefits would it be established that the issue in this case is “evasive of review”. That has not been shown on the record before us.

[7] The Ontario Court of Appeal in Mental Health Centre Penetanguishene v. Ontario[6] (MHCP) considered whether to exercise its discretion to decide on “the duty of the [Ontario Review] Board to include directions as to the interim custody, and available interim privileges, in a disposition that involves the transfer of a detainee from one hospital to another”[7] when the detainee has been found not criminally responsible on account of mental of disorder. In that case, the detainee had already been transferred.

[8] After finding that there was no live controversy, the court applied Borowski[8] and found that any issue concerning the failure of the Board to provide for interim or residual custody of a detainee would remain “live only for a short period in appellate time and thus is largely evasive of appellate review.”[9] On this basis, the court exercised its discretion to hear the appeal.

[9] The appellant submits that this case is similar to MHCP in that the issue of interim disbursements remains live only for a short period of appellate time, and the issue has far-reaching consequences that require adjudication.

[10] I do not accept this submission. The circumstances in MHCP are significantly different from the facts of this case. In MHCP, the appellant was ordered to be transferred to CAMH with various privileges. However, the transfer to CAMH did not take place for six months after the disposition was issued. While the detainee remained at MHCP, the detainee was not provided with any privileges, even though the treating physiatrist expressed the view that the detainee should receive the same discretionary privileges at MHCP during the time between disposition and transfer. The Board did not grant such privileges. The period of review time between disposition and transfer in other like cases could be very short: perhaps two months or less.

[11] Here, the period of time for review is significantly longer. In the case at bar, the period between the denial of interim benefits and settlement of the underlying claim was about four months. The applicant did not seek an expedited hearing in Divisional Court – hearings that are readily available in an appropriate case. There was no evidence before the court to indicate that the period of time for a hearing in this court makes the issue of interim benefits “evasive of review.” In short, it is not established that the issue before this court is “evasive of review” in a manner comparable to the circumstances in MHCP.

[12] Further, the issue in MHCP had “a practical impact on a group of mental disorder detainees…subject to custodial dispositions and hospital transfers.”[10] The interests at stake – constraints on the liberty of persons in custody over a period of months – merited using scarce judicial resources to adjudicate.

[13] The question of the LAT’s jurisdiction to grant interim benefits does not have a similar effect on all persons claiming accident benefits. Claimants can seek an expedited LAT hearing where they claim their need for benefits is urgent. Claimants can recoup their costs of interim benefits in the final adjudication of their claim. Only a subset of claimants may be faced with a failure of immediate material compensation arising from delay in LAT’s claims process.

[14] This is not to suggest that the issue of interim benefits is unimportant or affects very few people. There is no record before this court to support such conclusions. On the facts of the one case that is before us, there is no basis to conclude that the substance of the Adjudicator’s interim ruling will create a situation where material harm could inevitably result to an identifiable group of people. A future case, which is not moot, may provide a better factual foundation for review in this court.
. R v Monney

In R v Monney (Ont CA, 2020) the Court of Appeal the court commented as follows on mootness and the death of the appellant in a criminal appeal:
The Governing Principles

[6] The traditional view in Canada is that a criminal appeal ought never to survive the death of an accused. The death of the accused causes the appeal to abate whether the accused is the appellant or respondent, and abatement occurs even if the appeal has been argued and the decision reserved: R. v. Cadeddu (1983), 3 C.C.C. (3d) 112 (Ont. C.A.), at p. 114; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 11. Under this traditional rule, the courts nonetheless have recognized some discretion to proceed to judgment despite the death of the accused: Cadeddu, at pp. 118-119.

[7] In Smith, where the accused was the appellant, the Supreme Court of Canada held that the appellant’s death rendered the appeal moot. But the court acknowledged a discretion to proceed with a moot appeal, provided the discretion was exercised in accordance with judicial principles. The court emphasized, however, that this discretion should be exercised only in exceptional circumstances where the appellant’s death is survived by a continuing controversy which requires resolution in the interests of justice: Smith, at paras. 4, 20.

[8] Three principal rationalia underlie the policy or practice governing the continuance of moot appeals and inform the exercise of the circumscribed discretion to determine the appeal despite the party litigant’s death:

1. the existence of a truly adversarial context;

2. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve the issue; and

3. the respect shown by courts to limit themselves to their proper adjudicative role, as opposed to making freestanding legislative-type pronouncements.

See Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 358; Smith, at para. 39.

[9] The Borowski court outlined a two-step approach to the hearing of moot appeals. The first step involves an inquiry and determination whether the required tangible and concrete dispute has disappeared and the issues have become academic. If the case ascends the first step, the court should then determine whether it should exercise its discretion to hear the case: Borowski, at p. 353; Smith, at para. 33.

[10] In the end, the general test an appellate court should apply when considering whether to proceed with an appeal rendered moot by the death of an accused, is whether there exist special circumstances that make it “in the interests of justice” to proceed: Smith, at para. 50.
. R. v. Poulin

In R. v. Poulin (SCC, 2019) the Supreme Court of Canada set out factors to be considered when deciding that an appeal was moot because of the death of a party:
[19] In R. v. Smith, 2004 SCC 14 (CanLII), [2004] 1 S.C.R. 385, this Court set out five (non-exhaustive) factors for determining whether there are exceptional circumstances warranting the adjudication of an appeal rendered moot by the accused’s death. These factors are:
1. whether the appeal will proceed in a proper adversarial context;

2. the strength of the grounds of the appeal;

3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:

(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;

(b) a systemic issue related to the administration of justice;

(c) collateral consequences to the family of the deceased or to other interested persons or to the public;

4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;

5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the Court in free-standing, legislative-type pronouncements more properly left to the legislature itself. [para. 50]


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