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Mootness - Defined. Humberplex Developments Inc. v. Ontario (AG)
In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants."
Here the court found that considerations of mootness were factually premature:VI. Mootness
[82] As a preliminary issue, the Attorney General submits that the applicants’ judicial review application should be dismissed as moot, without otherwise considering its merits. The basis for that position is that since O. Reg. 303/19 (as amended by O. Reg. 382/19) has been repealed, that regulation has no practical effect on the rights of the parties. The Attorney General further notes that if the appeals were remitted to the Tribunal for redetermination, O. Reg. 350/21 made under s. 29(2) of the OLTA would require the Tribunal to follow the same Bill 139 regime that applied to the applicants’ appeals: see O. Reg. 350/21, ss. 1(1)5, 1(2), 1(3)1.
[83] In Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353, the Supreme Court confirmed that the doctrine of mootness applies “when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.” The rationale is that “[c]ourts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems”: Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 13. Repeal or amendment of legislation is a well-established category of mootness: Borowski, at p. 354.
[84] As a general principle, courts do not decide moot cases: Borowski, at p. 353; Tamil, at para. 13; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at paras. 23-41. The onus falls to the party seeking to have the matter decided to justify a departure from this principle: Tamil, at para. 17; Mayfair, at para. 32. In assessing whether to exercise discretion to hear a moot case, courts will consider:a. The presence or absence of the necessary adversarial context;
b. The concern for judicial economy; and
c. The need for the court to be sensitive to its role as the adjudicative branch in our political framework: Borowki, at pp. 358-63; Maystar, at para. 43. [85] In order to determine whether the mootness principle applies in this case, the difficulty I have is that is necessary to delve into the merits to a significant extent. This is not a situation in which the dispute between the parties has necessarily become academic. If the applicants were correct that O. Reg. 382/19 violated the applicants’ substantive rights that vested upon filing amended notices of appeal, it may have been open to the court to direct a rehearing of the appeal in accordance with the Bill 108 regime. Even if O. Reg. 350/21 by its terms would have precluded that outcome, it would remain open to the applicants to raise any challenge they had to that regulation and its applicability at a subsequent hearing. O. Reg. 350/21 was not before us to be adjudicated. In any event, since I have concluded that O. Reg. 303/19, as amended by O. Reg. 382/19, was in fact inter vires and did not offend vested substantive rights, it becomes unnecessary to consider the mootness issue further. . Leandro v. New Tecumseth (Town of)
In Leandro v. New Tecumseth (Town of) (Div Court, 2023) the Divisional Court considers (and allows) an appeal from a denied application for a declaration that a cannabis operation was allowed under a zoning by-law.
In this quote the court cites the essence of mootness:[36] As the Supreme Court of Canada made clear in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at para. 15:[T]he doctrine of mootness is part of a general policy that a court may decline to decide a case which merely raises a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. ....
[37] One consideration that drives the doctrine of mootness is a concern for scarce judicial resources. In this case, the result of the application judge’s decision is to force Mr. Leandro to pursue two proceedings in two forums that make up part of the Ontario justice system (which, broadly defined, does include administrative tribunals) when the premise for proceeding in those forums may not exist. If the Zoning By-law does not prohibit the activity at issue, there is no need for a rezoning amendment or a finding that the activity is a “normal farming practice.” A rational use of the justice system’s resources would dictate that the first thing to do is to determine if the Zoning By-law does prohibit the activity. Again, it is conceded that this can only be done by the court. . Kozoubenko v. Gosk
In Kozoubenko v. Gosk (Ont CA, 2023) the Court of Appeal considered basic law of mootness:[15] An appeal is moot where the “tangible and concrete dispute has disappeared”, that is, when there is no live controversy that requires resolution between the parties: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. The court may nevertheless exercise its discretion to hear a moot appeal. One factor to consider is whether the court’s decision on the appeal will have a practical effect on the rights of the parties: Borowski, at p. 360. . Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al
In Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al (Fed CA, 2022) the Federal Court of Appeal considered mootness:[38] A moot case is one which will not have the effect of resolving a live controversy which will or may affect the rights of the parties to the litigation (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 (Borowski)). ... . Thales DIS Canada Inc. v. Ontario
In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court considers basic mootness principles:The Applicable Principles
[58] The doctrine of mootness reflects a general policy of the courts to decline to decide cases where their decisions would have no practical effect on the rights of the parties. A case is moot when there is no longer a concrete legal dispute between the parties: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. If the decision of the court will have no practical effect on the rights of the parties, a court will generally decline to decide the case. The discretion to hear moot cases exists for “exceptional” circumstances: Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 13.
[59] Once mootness has been established, however, the onus is on the party seeking to have matter heard to demonstrate why the court should depart from its usual practice of refusing to hear moot cases: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 14. . Ontario (Provincial Police) v. Mosher
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. . R v Jackson
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. . Public Service Alliance of Canada v. Canada (Attorney General) [wasteful of resources]
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.
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