Simon's Legal Resources

Mootness - Standard of Review

. Detre v. Canada (Attorney General)

In Detre v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against an order "which dismissed his application for judicial review due to mootness" where "the underlying decisions of the Canada Employment Insurance Commission (Commission) finding that Mr. Detre was not entitled to Employment Insurance (EI) benefits had since been reconsidered in his favour".

Here the court considers the SOR for mootness issues:

[3] Our Court has stated that the determination that a case is moot is a question of law: Plato v. Canada (National Revenue), 2015 FCA 217 (Plato) at para. 4; David Suzuki Foundation v. Canada (Fisheries and Oceans), 2012 FCA 40 (Suzuki) at para. 57; Peckford v. Canada (Attorney General), 2023 FCA 219 (Peckford) at para. 18, leave to appeal to SCC dismissed in 2024 CanLII 80713 (SCC), 2024 CanLII 80711 (SCC), 2024 CanLII 80702 (SCC).

[4] Once it is established that a case is moot, the judge has discretion to hear the matter or not, by weighing the criteria established in Borowski: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 (Borowski) at 353; Suzuki at para. 57 and 59; Plato at para. 4; Peckford at paras. 18–19. It is well established that an application for judicial review may be dismissed on the ground that it is moot: Gravel v. Canada (Attorney General), 2024 FCA 155 (Gravel) at para. 3; Lukács v. Canada (Transportation Agency), 2016 FCA 227 at para. 6; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250 at paras. 47–48.

[5] Moreover, this Court has held that the standard of review applicable to the exercise of discretion by the Federal Court as to whether or not to hear a moot matter is palpable and overriding error, absent an extricable error of law, in which case the standard of correctness applies: Gravel at para. 3; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79, relying on Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. A palpable error is one that is obvious, whereas an overriding error is one that goes to the very core of the outcome of the case: Qualizza v. Canada, 2025 FCA 222 (Qualizza) at para. 9. The standard of palpable and overriding error is highly deferential and is not easily met: Qualizza at para. 9; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2021 FCA 24 at para. 11.

. Peckford v. Canada (Attorney General)

In Peckford v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered four related appeals from dismissed JRs against requirements that "air and rail travellers to be vaccinated against COVID-19", which were dismissed for mootness as the policy was spent.

In this quote the court addressed the SOR for mootness issues:

[19] Even on the issues that are properly before this Court for consideration, the appellants’ written arguments generally fail to recognize that we must apply the appellate standards of review. Except on pure questions of law, we will not interfere with the Federal Court’s decision in the absence of a palpable and overriding error. This is a highly deferential standard. As stated in Plato v. Canada (National Revenue), 2015 FCA 217 at para. 4:

The identification of the legal factors to determine if a case is moot is a question of law reviewable under the standard of correctness (Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40, [2013] 4 F.C.R. 155, at paragraph 57). Once it is established that a case is moot, the Judge has a broad discretion to hear the matter or not, but must properly weigh the criteria established in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, (Borowski). This fine exercise of balancing is a mixed question of facts and law. Deference is owed to that decision.

. DeGroot v. Licence Appeal Tribunal

In DeGroot v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered an appeal from a matter that the tribunal below had deemed moot as a matter of discretion, and held that a deferential standard of review applied:

[33] As it relates to the question of mootness, the decision of whether to hear and decide a moot issue is one which is an exercise of discretion. This court must therefore defer to the exercise of the LAT’s discretion unless the decision of the Adjudicator was unreasonable; was based on irrelevant or extraneous considerations; was based on a wrong principle, or where no weight had been given to a relevant consideration. - See Canadian Pacific Ltd. v. Matsqui Indian Band 1995 CanLII 145 (SCC), [1995] 1 SCR 3 at paras. 39 and 112; Volochay v. College of Massage Therapists of Ontario 2012 ONCA 541 at para. 52; Strickland v. Canada (Attorney General) 2015 SCC 27 at para. 39; and Ball v. McAulay 2020 ONCA 481 at paras. 118 and 124.