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Mootness - Where Issue Denied Hearing (4). Brick v. Canada (Attorney General)
In Brick v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal of a JR, here brought against "a decision of the Parole Board of Canada – Appeal Division (Appeal Division) maintaining the continued detention of the appellant" [the paragraph numeration is misapplied as per the Canlii original].
The court considers the discretionary hearing of a moot issues in 'exceptional circumstances', here where the sought remedies were for declarations - which are two matters similar in nature:[2] The parties agree that the controlling authority on the issue of mootness is the Supreme Court’s decision in Borowski (reaffirmed in Taylor v. Newfoundland and Labrador, 2026 SCC 5 at para. 44 (Taylor); Mackinnon v. Canada (AG), 2026 FCA 78 at para. 10) and there is no dispute that the Court may decline to decide a case if it raises only a hypothetical question that will have no practical effect on the parties’ rights. As stated, Mr. Brick concedes that the matter is now moot as there is no longer a live issue between the parties. Therefore, it appears that assessing the reasonableness of the Appeal Division’s decision or returning the matter to the Appeal Division for reconsideration would serve no purpose and have no practical effect. However, Mr. Brick contends that this Court should nonetheless exercise its discretion to determine the issues, if only for the purposes of issuing the two declarations he seeks. In this regard, it bears noting that "“ordinarily, courts do not pronounce on the law when their decisions will have no practical effect on the rights of the parties. However, they will in exceptional circumstances”": Taylor at para. 42; L. Sossin & G. Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed (Toronto: Thomson Reuters, 2024) at p. 246.
[3] The three factors guiding the Court’s discretion to hear an otherwise moot case are (1) the existence of an adversarial context, (2) whether there is any practical utility in deciding the matter or if doing so would be a waste of judicial resources and (3) whether the Court would be exceeding its proper role by making law in the abstract, a task that is reserved for Parliament (Taylor at para. 44; Right to Life Association of Toronto v. Canada (Attorney General), 2022 FCA 220 (Right to Life) at para. 20; Canada (National Revenue) v. McNally, 2015 FCA 248 (McNally) at para. 4).
[4] In addition, a declaration should only be granted where the party seeking it demonstrates that the question is real and not theoretical, that they have a genuine interest in its resolution, and that the declaration will have practical utility by settling a "“live controversy”" between the parties (Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para. 11; Right to Life at para. 13). Underlying the exercise of discretion is the need for restraint. As stated by Justice Stratas in McNally, at paragraph 5, "“[w]hile Borowski and cases that apply it do not forbid courts in appropriate circumstances from determining a proceeding after the real dispute has disappeared, this underlying rationale reminds us that the discretion to do so must be exercised prudently and cautiously.”"
[5] Having considered the parties’ submissions, I am of the view that the criteria relevant to the Court’s exercise of discretion militates against hearing this matter.
[6] First, I am not satisfied an adversarial context still exists between the parties: Mr. Brick no longer has a "“stake in the outcome”" as he has completed his sentence and has been reimbursed the amount charged to him when the Service faxed the disclosure documents to his hearing assistant. Moreover, I have not been convinced of any collateral consequences to support a continuing adversarial context (Borowski at pp. 358–59). There is no evidence that Mr. Brick was held in custody beyond his warrant expiry date or that his current circumstances would support such a claim. As there is no evidence, any argument that he may be prejudiced in future administrative proceedings or detention hearings by the Board’s decision remaining on his record may be mere speculation.
[7] While a declaration that the Charter was breached may under certain circumstances constitute a live controversy (Right to Life at para. 13), in this case, the practical utility of the declarations Mr. Brick seeks has not been made out.
[8] I recognize that Mr. Brick’s arguments on the jurisdiction issue involve statutory interpretation, and that those regarding the disclosure issue are arguments of principle. However, understanding the Service’s role and functions under the Act—particularly concerning the jurisdiction issue—and the nature and extent of any purported breach—regarding the disclosure issue—are factors the Court may consider when exercising its discretion to hear the matter that is now moot and to issue the declarations Mr. Brick seeks. What Mr. Brick is requesting is essentially for the Court to issue declarations in somewhat of a factual vacuum.
[9] Regarding concerns over judicial economy, Mr. Brick has not demonstrated any special circumstances that would justify the allocation of scarce judicial resources to resolve the issues he raises (Borowski at pp. 359–61). He is not challenging the constitutionality of any provisions of the Act, and as noted earlier, neither of the declarations he seeks would go to resolving any live issue between the parties. Additionally, I do not consider this to be a case where the issues are evasive of review (Borowski at pp. 360–61). As stated by the Supreme Court, "“an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration.”": Borowski at p. 360 (emphasis added). The mootness of this case is primarily due to the specific calculation of Mr. Brick’s eligibility dates—namely, his statutory release date and warrant expiry date—within the context of his determinate sentence. However, even if were to accept the jurisdiction issue is somewhat evasive of review, the fact remains that the other factors weigh against hearing the appeal. In any event, I am not satisfied the issue is of a recurring nature since Mr. Brick acknowledges that the jurisdiction issue only arises when a change in sentence has occurred and the statutory release date was in the past, what Mr. Brick concedes to be a "“rare event”".
[10] As stated by the Supreme Court in Borowski, at page 361, it "“is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved”"; I am not convinced that such circumstances exist in this case.
[11] Furthermore, as regards the jurisdiction issue, there is no evidence regarding the procedures the Service follows when undertaking recalculation or how it assesses whether a detention referral is warranted. Additionally, as regards the disclosure issue, there is no information about which disclosure documents Mr. Brick’s hearing assistant had—or did not have—prior to the detention hearing that could support the declaration he seeks under section 7 of the Charter. Nor is there any evidence regarding what the Service considered when implementing its disclosure policy, nor whether that policy is still in effect, given that Mr. Brick had been reimbursed the fax charges. In short, there is no evidence that the disclosure process caused Mr. Brick any prejudice.
[12] I recognize that considerations of judicial involvement are weighed against the social cost of continued uncertainty in the law (Borowski at p. 361). However, introducing a novel argument does not necessarily generate uncertainty in the law. In any event, hearing the moot appeal is unlikely to settle the law regarding "“recalculation.”" On judicial review, the court usually does not perform a de novo analysis to determine the correct interpretation of a disputed provision: Vavilov at para. 124. Mr. Brick has not persuaded the Court that there is a single reasonable interpretation of "“recalculation”" under subsection 129(3.1). In fact, Mr. Brick’s notice of appeal acknowledges that there is "“ambiguity present in s. 129(3.1).”" As indicated earlier, sending the matter back to the Appeal Division would serve no purpose.
[13] Furthermore, any assertion that this Court should hear the appeal, risking the decisions below becoming binding precedent, implies that the only remaining interest in pursuing this case is purely jurisprudential. Such an interest alone is insufficient to justify maintaining an otherwise moot appeal, as a purely jurisprudential concern does not meet the requirement for a concrete and tangible controversy (Right to Life at para 24; Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67 at para. 7; Borowski at p. 353). Consequently, I am not convinced that this is a case where it is in the public interest to address the issues.
[14] Finally, I am mindful of the risk of overstepping the Court’s institutional role by issuing judgments in the absence of a dispute affecting the parties (Borowski at pp. 362–63). This consideration further weighs against exercising discretion to hear this case under the circumstances. Given the paucity of evidence to support the relief Mr. Brick seeks, he is essentially asking this Court to make law in the abstract, something this Court cannot do.
[15] As none of the Borowski factors favour hearing this appeal, I would dismiss the appeal for mootness. As no costs were requested by the Attorney General, no costs should be awarded. . Benbella v. Law Society of Ontario
In Benbella v. Law Society of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a decision by the Law Society of Ontario (“LSO”) to close a complaint he made against a lawyer".
In this brief case the court, while finding (and applying to dismiss) 'mootness', apparently ignored the second stage of the Borowski process - that of considering it's discretion to hear the matter regardless, this despite there being useful issues involved:[1] Dr. Hocine Benbella has brought an application for judicial review of a decision by the Law Society of Ontario (“LSO”) to close a complaint he made against a lawyer. Dr. Benbella takes the position that the LSO is required to file a record of proceedings in accordance with s. 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”). The LSO disagrees and submits that the closing of the complaint was not a “statutory power of decision” within the meaning of s. 1 of the JRPA, therefore it is not required to file a record of proceedings. Following a case conference, Nakatsuru J. directed that this issue be determined on a motion made in writing. Both parties filed factums and records on the motion.
[2] Having reviewed the material filed on the motion, it is evident that the LSO’s motion record contains everything the moving party sought to have provided in a record of proceedings, thereby rendering the motion moot.
[3] The moving party’s request, as set out in his factum, is for:... materials that were before the decision-maker when the Applicant’s complaint was screened and closed, including the complaint, any attachments, submissions, correspondence, summaries, or information received from any source and considered at the screening stage, subject to any valid claims of privilege. [4] In its record filed on this motion, the responding party included an affidavit from Neil Foley, the Team Manager of the Intake and Resolution Department in the Professional Regulation Division of the LSO, which described the process whereby complaints are screened. Complaints are initially reviewed by law clerks working under the supervision of Team Managers. The clerk considers whether the complaint is within the LSO’s jurisdiction and raises issues with a licensee’s conduct. If not, the clerk can recommend that the complaint be closed. Otherwise, the complaint is assigned to Intake and Resolution Counsel.
[5] The affidavit described how the moving party’s complaint was processed:The Applicant’s complaint was assigned to Naqeeb Ahmad, Law Clerk at Intake & Resolution. As a law clerk, Mr. Ahmad conducted a review of the Applicant’s complaint and the supporting materials he provided to make an initial determination whether it raised issues with the Licensee’s conduct and whether it was within the Law Society’s jurisdiction. As part of this review, Mr. Ahmad would have considered relevant rules of professional conduct and related commentary.
....
At the end of the review, it was determined that the Law Society would not take further action on the complaints.
In its factum on the motion, the responding party continued to take the position that it was not required to produce a record, but confirmed that if it was required to do so, “the extent of the record of proceedings is that which has been provided to the moving party.” [6] In his reply factum, the moving party indicates that he is not satisfied with the contents of the Foley affidavit, which he submits is a “litigation-generated narrative describing the process after judicial review has been commenced” rather than “an identifiable, contemporaneous description of the decision-making inputs themselves.” He continues to seek an order requiring the responding party to identify the material that was before the decision-maker, or “if no such materials exist beyond the complaint package, confirm that fact by affidavit sworn by a person with direct knowledge.”
[7] In my view, the Foley affidavit provides exactly what the moving party asked for. It confirms that no materials beyond the complaint package were before the decision maker, except for relevant Rules of Professional Conduct, which are easily accessible. Assuming, without deciding, that the responding party is required to comply with s. 10 of the JRPA, it has done so.
[8] In the result, the motion is dismissed as the moving party already has what he seeks.
[9] While the responding party was successful and seeks costs, it could have provided the material in the motion record far sooner while reserving its right to take the position that there has been no statutory power of decision, which may have obviated the need for this motion. The responding party also advanced various detailed arguments about privilege despite the moving party having clearly stated that he was not seeking privileged material. In all the circumstances, there will be no order as to costs.
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