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Mootness

Evidence - Relevance

R v Jackson (Ont CA, 2015)

In this case the Court of Appeal explained when mootness arises with respect to an issue, and when - despite the mootness - the court may proceed to consider the issue:
[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.

[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.
It also articulated some useful comments on the evidentiary concept of "relevance":
The Meaning of “Relevant” and “Relevance”

[119] The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions. We know them well enough to say several things about them without being critical in any way.

[120] Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.

[121] Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air: R. v. Luciano, 2011 ONCA 89 (CanLII), 267 C.C.C. (3d) 16, at paras. 204-5.

[122] Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise: R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at p. 731.

[123] The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally, marginally or doubtfully”, “tangentially” and “highly” that tag along for the ride from time to time.


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