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Legal Topics in the Works




MOOTNESS


1. Mootness Generally
2. Procedure on Claim of Mootness
3. When A Moot Issue May be Heard

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1. Mootness Generally

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.
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.

2. Procedure on Claim of Mootness

In Ontario (Provincial Police) v. Mosher (Ont CA, 2015) the Court of Appeal sets out the court procedure when a claim of mootness occurs:
[30] The approach taken by a court confronted with a claim of mootness involves two steps. The first step requires a determination whether the essential tangible and concrete dispute – the lis inter partes – has disappeared and the issues have become academic. If the response at this first step is affirmative, the second step requires the court to decide whether it should exercise its discretion to hear the case: Borowski, at p. 353; Mental Health Centre, at para. 36.

3. When A Moot Issue May be Heard

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.
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.
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.
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.

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