[13] There are times when an appeal court will exercise its discretion and hear an appeal that is moot. The test was set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342.
[14] The two-step analysis in Borowski is as follows:
a. Does there remain a live controversy in the case?
b. If not, should the court exercise its discretion to hear the case? The three underlying rationales to consider in determining whether to exercise discretion are:
i. the existence of a truly adversarial context;
ii. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;
iii. the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
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