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When A Moot Issue May be Heard

. Taylor v. Hanley Hospitality Inc.

In Taylor v. Hanley Hospitality Inc. (Ont CA, 2022) the Court of Appeal considered mootness where a party sought a not-yet-necessary declaration:
[45] The parties are now essentially seeking a standalone declaration of the meaning of s. 50.1 of the ESA and O. Reg. 228/20. Divorced from any factual foundation, the issue is academic at this stage of these proceedings because it would not resolve the fact-driven dispute between the parties: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at para. 15. As a result, it is at this court’s discretion whether the issue should be entertained and determined at this stage: Borowski, at para. 16. I would refrain from interpreting the provision and regulations. Not only was this remedy not sought in the parties’ respective pleadings, but for the reasons stated above, this panel has neither the record nor the submissions that would permit us to carry out a proper analysis of s. 50.1 of the ESA and O. Reg. 228/20.
. Public Service Alliance of Canada v. Canada (Attorney General)

In Public Service Alliance of Canada v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal (Stratas JA) commented on the modern approach to mootness:
[6] An issue is moot if the tangible and concrete dispute between the parties has disappeared and the issue has become academic: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 at 353 S.C.R. Mootness in judicial reviews has assumed new prominence in light of the recent encouragement given to reviewing courts to avoid needless hearings: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paras. 139-142; see Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67 at para. 14.

[7] This application is moot for two reasons. First, the grievance and the corrective action requested in it have been accepted by the employer; there is no longer any dispute to adjudicate. And second, the collective agreement under which this grievance is brought expired in June, 2018 and "“will soon be replaced by a new agreement”", if it has not already been replaced: Board decision at para. 31.

[8] The union says the application is not moot because it wants a declaration that the Treasury Board breached the collective agreement. But a mere declaration would not have any practical effects in this case. At best, it has a mere jurisprudential interest and that does not meet the threshold of a tangible and concrete dispute: Canada (National Revenue) v. McNally, 2015 FCA 248, 477 N.R. 389; Canadian Union of Public Employees (Air Canada Component), above. In fact, before the Board, the union submitted this case was not a precedent with broader effect: Board decision at para. 20.

[9] The union also says the grievance is not moot because the Treasury Board’s corrective action has been insufficient. The union says some of its members had not received their printed agreements at the time of the Board hearing. This is of no moment. The union brought a grievance, and the employer accepted that grievance. Recourses are available for any failure by the employer to abide by its acceptance of the grievance, such as a new grievance based on continued or additional failure to provide copies of the collective agreement.

[10] This is not a case where the Court should exercise its discretion to decide the moot issue. Deciding the issue would be a waste of judicial resources and impermissible law-making in the abstract: Borowski; see also Canadian Union of Public Employees (Air Canada Component) at para. 9, citing Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196, 487 N.R. 202 at para. 16.
. Canadian Union of Public Employees (Air Canada Component) v. Air Canada

In Canadian Union of Public Employees (Air Canada Component) v. Air Canada (Fed CA, 2021) the Federal Court of Appeal considered issues of mootness and whether the matter should still be heard:
[2] As will be explained below, this matter was moot in the Federal Court. It is also moot in this Court and we should not determine it on its merits: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231.

....

[8] Although we have a discretion to hear a moot case, we should not do so here.

[9] Three considerations guide this discretion:
the absence or presence of an adversarial context;

whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and

whether the court would be exceeding its proper role by making law in the abstract, a task reserved for Parliament.
(See Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196, 487 N.R. 202 at para. 16 citing Borowski.)

[10] The first consideration weighs in favour of deciding the moot issue. We do have an adversarial context: both sides, represented by counsel, take opposing positions.

[11] The second consideration strongly weighs in favour of not deciding the moot issue. Deciding it would waste judicial resources. The appeals officer’s decision does not impose obligations on either party and does not have any practical consequences.

[12] As well, the jurisprudential issues are not evasive of review: Air Canada says similar proceedings are under way between the parties. As well, Parliament has amended the statutory definition of "“danger”" since these proceedings began: Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40, s. 176. Future cases will turn on the new definition.

[13] As for the third consideration, gratuitously interpreting the former wording of the provision in issue, in a case with no practical consequences, just to create a legal precedent, would be a form of law-making for the sake of law-making. That is not our proper task.

[14] The mootness issue assumes greater significance following Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. There, the Supreme Court underscored that courts must consider expediency and cost-efficiency when considering applications for judicial review and should not grant remedies when they serve no useful purpose: at para. 140, citing Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 55.
. McCauley v. the Ontario Parole Board

In McCauley v. the Ontario Parole Board (Div Ct, 2021) the Divisional Court considered when a moot matter should still be heard:
[4] In Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court explained that the doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case that raises a merely hypothetical or abstract question. This principle applies when the decision of the court will not resolve a controversy that affects or might affect the rights of the parties. In this case, while the applicant will remain incarcerated for another 13 days before she is released, from a practical perspective success on this application will have no value to her. She cannot benefit from an order of this court quashing the decision of the Chair’s delegate refusing to order a new hearing of the applicant’s application for a temporary absence permit. A live controversy no longer exists that affects the rights of the applicant or the respondent. Counsel for the applicant and the respondent agree that this application is moot. But that is not the end of the matter. Despite the absence of a live controversy, a court may elect to hear and address a moot issue if the circumstances warrant it.

[5] The onus is on the applicant to satisfy the Court that this matter should proceed despite its mootness. In deciding whether this court should exercise its discretion to hear this matter, we must consider three factors:
(1) there must be an “adversarial context” within which the parties have a full stake in the outcome;

(2) the Court must be mindful of 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.
. Simone v. 1312733 Ontario Inc.

In Simone v. 1312733 Ontario Inc. (Div Ct, 2020) the Divisional Court cited the test for when a moot issue should still be decided:
[7] The Court of Appeal for Ontario has emphasized that it is only in “exceptional cases” that a court should exercise its discretion to hear a moot appeal: Tamil Co-Operative Homes Inc. v. Arulappah, 2000 CanLII 5726 (ON CA), 49 OR (3d) 566 (C.A.), at para. 13. The three criteria courts consider in deciding whether to hear a moot appeal are: 1) the presence of an adversarial context, 2) the concern for judicial economy, and 3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 43.
. Elementary Teachers Federation of Ontario v. York Region District School Board

In Elementary Teachers Federation of Ontario v. York Region District School Board (Div Ct, 2020) the Divisional Court reviewed basics of mootness:
[61] In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court articulated the test as follows. First, the court must determine whether the case is moot. Second, if the matter is moot, the court may nevertheless choose to exercise its discretion to hear the case on the merits.

[62] The first branch of the Borowski test asks if there remains a live controversy. Is there a tangible and concrete dispute, or is the issue purely academic? The second branch requires the court to consider whether it should exercise its discretion to hear an otherwise moot appeal. Borowski set out three underlying rationales. These were summarized in R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 39:
(a) the existence of a truly adversarial context;

(b) the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases; [and]

(c) the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
. R. v. Smith

In R. v. Smith (SCC, 2004) the Supreme Court of Canada set out when it was appropriate to hear a moot appeal:
D. The Test for the Exercise of Discretion

39 Borowski identified three principal “underlying rationalia” for the “policy or practice” governing the continuance of moot appeals:
(a) the existence of a truly adversarial context;

(b) the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;

(c) the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
The Court indicated that these three “rationales” are not exhaustive (p. 358), nor is their application a “mechanical” process (p. 363), but the Court must exercise its discretion “judicially . . . with due regard for established principles” (p. 358).

40 In Adams, supra, the Court exercised its discretion to proceed with the moot appeal because, per Sopinka J., at p. 719, it was “in the public interest” to do so.

41 Jetté, supra, made no reference to Borowski or Adams or to the more general principles developed to deal with moot appeals, but the factors mentioned by the Quebec Court of Appeal are compatible with those principles, namely:
1. that there are serious grounds of appeal;

2. that the verdict carried with it significant consequences for the party seeking to continue the proceedings;

3. that it is in the interests of justice to do so.
The fundamental criterion is “the interests of justice”. The two preliminary Jetté factors can be subsumed in the “interests of justice”, which is a broad and flexible concept, and deliberately chosen on that account. Borowski supplies the principled framework within which “the interests of justice” can be evaluated.

42 It is apparent that if there are no “serious grounds of appeal”, the appeal should be abated. Equally, under the second Jetté factor, where a verdict carries no significant consequences for the party seeking to continue it, a court should not exercise its discretion in favour of continuing the appeal. However, this factor will, in most cases, be self-fulfilling. If there were no significant consequences for the survivors, they would be unlikely to resist the Crown’s motion to quash the appeal.

43 The second Jetté factor is nevertheless a useful reminder of the need to differentiate between the potential benefits of the appeal to the original appellant, who can no longer be comforted, and the collateral consequences or potential benefits, if any, to those who have survived him or her, and to the public.

44 Reference to the “significant consequences for the party seeking to continue the proceedings” may, in some senses, be both too narrow and too broad. It may be too narrow because the consequences to the public may be as important, if not more so, as those motivating the survivors of the deceased appellant seeking to continue the appeal: R. v. Yarema (1991), 1991 CanLII 7098 (ON CA), 3 O.R. (3d) 459 (C.A.).

45 Viewed in another light, the second Jetté factor could also be seen as too broad, because any criminal conviction potentially carries significant consequences in a subjective sense in the eyes of the executor, or personal representative, and members of the family of the deceased. In the present appeal, for example, counsel for the appellant argues that murder is the most serious of criminal offences and carries with it a stigma that imposed a burden not only on the deceased but on his family. Yet most serious crimes carry a stigma, and if that, combined with serious grounds of appeal, were sufficient, the continuation of the appeal of a dead appellant would become the rule rather than the exception in criminal matters. Conviction of almost any offence involving sexual abuse or fraud, for example, attracts stigma, and could also be expected to agitate a supportive family.

46 It is “the interests of justice” on which Wells C.J.N.L. laid his emphasis, and I think he was correct to do so. This was clearly the primary consideration of Fish J.A. in Jetté. The “interests of justice” test captures the flexibility urged by Sopinka J. in Borowski (at p. 358). It signals the need not to be too dogmatic about the various criteria for its application. The exercise of the court’s discretion should turn on a consideration of all the relevant circumstances, keeping in mind the general rule that in the overwhelming number of cases the death of the appellant abates his or her appeal leaving the conviction intact.

47 In Jetté, the “interests of justice” test was clearly satisfied. The grounds of appeal were not only serious, but overwhelming. The Quebec Court of Appeal was confronted with fresh evidence that suggested the factual innocence of the convicted offender. The opportunity to clear the name of the deceased appellant was of major significance to his family, and their determination to establish his factual innocence supplied the adversarial context. In the presence of such an apparent miscarriage of justice, “scarce judicial resources” could seldom be a disqualifying consideration. The issues surrounding the perjured testimony were quintessentially for the courts, not the legislature, to resolve. For the court to have declined to look into a serious abuse of its own process would clearly not have been “in the interests of justice”.

48 Jetté raised issues of broad public importance concerning police conduct and a potential systemic failure in the justice system, as well as the spectre of a serious injustice to the deceased and his family. In other words, continuance of the appeal had important collateral consequences above and beyond the potential impact on the verdict itself.

49 The existence of such collateral consequences for the administration of justice, quite apart from the interest of the particular convicted individual or his family, is an important consideration. In Morin v. National SHU Review Committee, [1985] 1 F.C. 3 (C.A.), for example, a legal point arose which recurs with some frequency but, due to the nature of the proceedings in which it generally arises, is ordinarily evasive of appellate review. In such cases, assuming the existence of a proper adversarial context, a court may consider it to be a good use of judicial resources to resolve the legal controversy if it is otherwise “in the interests of justice” to proceed. Such was the case in Adams, supra, where the Court dealt with an appeal of revocation of a publication ban in the knowledge that such bans are frequently spent before appeals can be exhausted. A moot appeal may also raise questions about systemic failures in the justice system, as with the allegation of police brutality in Jetté, which transcend the interests of the immediate parties, and may justify the continuation of the appeal provided the appropriate adversarial context exists.

50 In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive. Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:
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.
51 What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.
. R v Jackson

In R v Jackson (Ont CA, 2015) the Court of Appeal explains when a moot issue may be heard:
[51] From time to time, the doctrine of mootness surrenders, admitting of a discretion to depart from rigid application to permit a court to hear and determine a case in which the lis inter partes has dissolved: Borowski, at p. 353; Mental Health Centre, at para. 36.

[52] When one party urges mootness and seeks to disentitle another party to a hearing or decision, a court must determine first whether the essential tangible and concrete dispute – the lis inter partes – has disappeared and the issues have become academic. An affirmative response at this first step requires the court to determine next whether it should exercise its discretion to hear and decide the case: Borowski, at p. 353; Mental Health Centre, at para. 36.

[53] To decide whether to exercise its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present:

i. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.
. Ontario (Provincial Police) v. Mosher

In Ontario (Provincial Police) v. Mosher (Ont CA, 2015) the Court of Appeal sets out when a moot issue may be heard:
[31] ... An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

[32] Three basic rationalia underpin the mootness doctrine:

i. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

[33] The first rationale may be satisfied where the live controversy has ceased but the essential adversarial relationship nevertheless prevails. Collateral consequences may provide the necessary adversarial context: Borowski, at pp. 358-9.

[34] The second rationale – the concern for judicial economy – may be met in cases which are at once moot but of a recurring nature and brief duration. A flexible application of the mootness doctrine ensures that important questions, which might independently evade review, are heard and decided by the court: Borowski, at p. 360.

[35] A somewhat more amorphous basis to justify the deployment of limited judicial resources arises in cases that involve issues of public importance of which a resolution is in the public interest. The economies of judicial involvement are balanced against the social cost of continued legal uncertainty: Borowski, at p. 361.

[36] In exercising its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present. The process is not mechanical. The principles may point in opposite directions. The absence of a third may overbear the presence of one or two. And vice versa: Borowski, at p. 363.
. Slate Management Corporation v. Canada (Attorney General)

In Slate Management Corporation v. Canada (Attorney General) (Ont CA, 2017) the court repeats the test for deciding when a moot issue may be decided:
[28] Once a court determines that an appeal is moot, it is necessary to decide whether the court should nonetheless exercise its discretion to hear the case: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. Three factors are relevant in determining whether a court should entertain a moot appeal: (i) the presence of an adversarial context that will ensure that the issues are well and fully argued; (ii) concern for judicial economy; and (iii) awareness of the court’s proper law-making function: Borowski, pp. 358-363.
. Dagg v. Cameron Estate

In Dagg v. Cameron Estate (Ont CA, 2017) the court repeats the test for hearing a moot issue:
[32] The exercise of that discretion is guided by a consideration of the presence or absence of the three rationales underpinning the mootness doctrine: (i) whether the issues can be well and fully argued by parties who have a stake in the outcome; (ii) the concern for judicial economy; and (iii) the need for the court to remain alive to the proper limits of its law-making function in order to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-63; Ontario Provincial Police Commissioner v. Mosher, 2015 ONCA 722 (CanLII), 330 C.C.C. (3d) 149, at paras. 31-32. The interplay amongst the three rationales was described in Borowski at p. 363:
In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.
. Halat (Re)

In Halat (Re) the court cited law on when a moot issue may be heard:
[7] The seminal case from the Supreme Court of Canada on the question of when a court should exercise its discretion to hear a moot case or appeal is Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, where the court mandated a two-step process for the analysis. The first step is to decide whether the case or appeal is moot, i.e. whether there remains a live controversy that affects the rights of the parties. If there is not and the case or appeal is therefore moot, the general rule is that the court will not hear the matter.

[8] However, the court must decide whether it should exercise its discretion to hear and decide the case or appeal in any event, considering three factors: 1) whether the necessary adversarial context remains, which may be provided by collateral consequences of the resolution of the issue between the parties; 2) despite the concern for judicial economy, whether special circumstances justify applying scarce judicial resources to the case because, for example, the case raises an important issue that will always be moot by the time it reaches appeal, or an issue that is a matter of public importance and in the public interest to resolve; 3) the need for the court to be aware of its proper law-making function and the extent to which it may be departing from its traditional role by hearing the case or appeal: Borowski, at pp. 358-63.


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