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Mootness Generally

. Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al

In Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al (Fed CA, 2022) the Federal Court of Appeal considered mootness:
[38] A moot case is one which will not have the effect of resolving a live controversy which will or may affect the rights of the parties to the litigation (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 (Borowski)). ...
. Thales DIS Canada Inc. v. Ontario

In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court considers basic mootness principles:
The Applicable Principles

[58] The doctrine of mootness reflects a general policy of the courts to decline to decide cases where their decisions would have no practical effect on the rights of the parties. A case is moot when there is no longer a concrete legal dispute between the parties: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. If the decision of the court will have no practical effect on the rights of the parties, a court will generally decline to decide the case. The discretion to hear moot cases exists for “exceptional” circumstances: Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 13.

[59] Once mootness has been established, however, the onus is on the party seeking to have matter heard to demonstrate why the court should depart from its usual practice of refusing to hear moot cases: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 14.
. Hakizimana v. Canada (Public Safety and Emergency Preparedness)

In Hakizimana v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2022) the Federal Court of Appeal considered mootness:
[11] It is trite that the application of the mootness doctrine involves a two-step analysis. The first step requires an assessment of whether the tangible and concrete dispute between the parties has disappeared. The Court must determine whether there is still a "“live controversy”". If there is no longer a live controversy between the parties, the second step of the analysis requires the Court to decide whether it should nevertheless exercise its discretion to hear the case (Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited, 2021 FCA 26, [2021] F.C.J. No. 172 (QL/Lexis) at para. 74, citing Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 at 353 (Borowski)).

....

[20] Having decided that the present matter is moot, the issue is now whether the Court should nevertheless exercise its discretion and decide the case, which is what the appellants are urging the Court to do. This issue requires the consideration of the following factors: (i) the absence or presence of an adversarial context; (ii) whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and (iii) whether the Court would be exceeding its proper role by making law in the abstract, a task reserved for Parliament (Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67, [2021] F.C.J. No. 286 (QL/Lexis) at para. 9 (CUPE); see also Borowski at 358-363).
. Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board

In Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022) the Divisional Court considered the law of mootness (see judge joke at end of para 36):
[33] The doctrine of mootness provides that, absent issues that engage the public interest, the court should not decide an issue that is no longer live between the parties: Borowski v. Canada, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

[34] The doctrine of mootness is an aspect of general policy or practice that a court may decline to decide an application if it raises mere hypothetical or abstract questions that will not resolve an ongoing controversy affecting the rights of the parties. In spite of this policy, however, courts may exercise discretion to consider moot applications. The Applicant bears the onus of establishing that its moot application ought to proceed.

[35] In deciding whether to exercise its discretion, this Court must consider the following three factors established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC):
1. that a court’s competence to resolve legal disputes is rooted in the adversarial system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

2. the Court must be mindful of the need for judicial economy. The special circumstances of the case, typically that the case raises an important question of a recurring nature but of brief duration making it elusive of review, or a matter of public importance, the resolution of which is in the public interest; and

3. the Court must maintain an awareness of its proper law-making function and avoid intruding into the role of the legislative branch. (See also Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 at paras. 28, 41-43 (Div. Ct.); McCauley v. the Ontario Parole Board, 2021 ONSC 1874 at paras. 4-5 (Div. Ct.)).
[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.”
. Ontario (Provincial Police) v. Mosher

In Ontario (Provincial Police) v. Mosher (Ont CA, 2015) the Court of Appeal defines mootness and it's role in the court:
[28] The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises a hypothetical or abstract question. This general principle applies when a court’s decision will not, ineffect, resolve some controversy that affects or may affect the rights of the parties. As a general rule, courts decline to decide cases in which their decision will have no practical effect on the parties. This essential element – a lis inter partes – must exist not only when the proceeding commences, but also when the court is assigned the task of deciding it: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197 (CanLII), 260 O.A.C. 125, at para. 35.
. R v Jackson

In R v Jackson (Ont CA, 2015) the Court of Appeal states this on the definition of mootness:
[50] The doctrine of mootness, of general but not unyielding application, is an aspect of a general policy or practice that a court may decline to decide a case that raises a hypothetical or abstract question. The doctrine applies when a court’s decision will not, in effect, resolve some controversy that affects or may affect the rights of the parties. A lis inter partes must exist not only when the proceedings commence, but also when the court is assigned the task of deciding it: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197 (CanLII), 260 O.A.C. 125, at para. 35.



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