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Mootness - Where Issue Denied Hearing


Part 2

. Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks)

In Regional Municipality of York v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2023) the Divisional Court considered a unique JR application brought by a municipality against Ontario. After a prolonged delay in responding to the municipality's wastewater infrastructure approval request [under the Environmental Assessment Act (EAA)] - and the consequent filing of a mandamus JR by the municipality to compel the statutorily-required response [EAA s.10] - the province "enacted the YRWA (SS: 'York Region Wastewater Act, 2021') which provided for the establishment of an “advisory panel” to study the wastewater management options available and to make recommendations. The JR was then argued, with the court reserving their decision (through no 'YRWA advisories' had yet been issued). While the parties were awaiting the court decision the province repealed the YRWA [via the 'SGA' (Supporting Growth and Housing in York and Durham Regions Act, 2022)], with additional statutory provisions that the municipality's EA approval was 'deemed' withdrawn, that the municipality was required to implement the province's preferred wastewater plans, and giving the province immunity from any related causes-of-action. As a consequence the municipality withdraw it's mandamus request, but still sought a declaration of constitutional invalidity that the YRWA and the SGA infringed the s.96 constitutional Superior Court authority.

The current case is the reasons for decision on this re-focussed JR, which has still been reserved after this legislative fuss. In it, the court held that they had jurisdiction to hear the JR as now sought by the municipality [since the legislation constituted a "refusal to exercise a statutory power" under JRPA 2(1)2], but that the court would not exercise it's JR discretion to hear it as it was moot.

In these quotes, the court considered this mootness issue:
[22] The remaining issue is whether this court should nevertheless exercise its discretion to decide the issues raised in this application. In so doing, we are guided by the three main factors established in the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342:
(a) the presence of an 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.
[23] Additional considerations include whether the case is one suitable for the court’s review, and whether it is in the public interest to deal with the merits of the original dispute in order to settle the state of the law.

[24] York Region bears the onus of satisfying the court that it should exercise its discretion to hear this matter in accordance with the Borowski test.

[25] In its decision in Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265 (CanLII) the Court of Appeal for Ontario instructed that the test in Borowski is to be applied flexibly. It therefore is not strictly necessary for an applicant to satisfy all three factors of the test. At the same time, it was emphasized that the discretion to hear and decide a moot issue is to be reserved for exceptional cases only.

[26] We are of the opinion that the applicable test, even if applied flexibly to the facts as established, does not operate to persuade us that our discretion to decide a question that is now moot ought to be exercised in this case.

[27] We agree with counsel for Ontario’s submission that the Borowski factors favour our declining to hear this application for declaratory relief, particularly insofar as constitutional invalidity has been asserted by York Region (see: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy, 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97). We are also of the opinion that judicial resources should not be allocated to deal with an issue that is no longer in dispute, a challenge to legislation that will have little or no practical effect on the future conduct of the parties with respect to the subject matter.

[28] In a similar vein, we consider the use of judicial resources to hear what is, effectively, a “private reference” is not appropriate (see: Tamil Co-Operative Homes Inc. v. Arulappah, 2000 CanLII 5726 (Ont. C.A.)).

[29] We acknowledge the importance of the issues raised by York Region in its application, but these are now no longer of practical effect. Despite our concerns about the timing and purpose of the legislation enacted and the way in which it may be said to have circumvented the environmental assessment process and to have removed the statutory decision-making obligation of the Minister in this case, we have been provided with very little by way of evidence or argument to shed light on the factors that prompted this approach or the impact on the competing interests involved. It is conceivable that those with interests most directly affected by the choice of the Lake Ontario wastewater discharge option are not parties to this proceeding. If the issues raised on this application are of a nature that may arise again in the future, we view it as preferable for the court to address them at that time on the specific prevailing law, a more complete record of evidence before it, and with the benefit of a truly adversarial context in the presence of all proper parties affected.
. Guillaume v. Chief Animal Welfare Inspector

In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered a motion to stay [under CJA s.106] administrative decisions from the PAWS Animal Care Review Board (ACRB), pending a JR.

In these quotes the court considers (and accepts and applies) the respondent CAWI's submissions that the JR is moot since the PAWS statute [at s.35(4)(b)] conveys ownership of the subject animals to the CAWI once an animal-care 'Statement of Account' (SOA) is in default:
[7] The Respondent takes the position that the motion for a stay of the Decision is moot. The Respondent submits that in this case, the animals were forfeited by operation of statute, long before the Applicant sought a stay. As a result, they are no longer the property of the Applicant.

[8] Under s. 35(1) of the Act, an owner or custodian is liable for expenses incurred by an inspector or the CAWI when necessaries are provided to relieve an animal of distress. Pursuant to s. 35(4), if the owner or custodian does not pay a SOA that has been varied or confirmed after an appeal to the ACRB, the animals are forfeited to the Crown. Under s. 1(2) of O. Reg. 447/19, the prescribed time period for payment of a SOA is ten business days.

[9] Since the ACRB dismissed the underlying appeals and confirmed the SOA, payment of the SOA was due ten business days later, or on August 18, 2023. The Applicant has made no payments to date. Nor has she negotiated an arrangement with the CAWI. Therefore, by operation of s. 35(4)(b) of the Act, the animals that were removed have been forfeited to the Crown. Forfeiture occurs by statute and is not subject to any further action by the Crown or CAWI. Once animals are forfeited to the Crown, they become the property of the Crown and the previous owner/custodian ceases to have any rights of ownership or possession over the animals. Subsection 63(1) of the Act provides that the CAWI is authorized by the Crown to “deal with the animal as if the [CAWI] were the owner[.]”

[10] Because the cats were forfeited to the Crown on August 18, 2023, they are no longer her property, and the issue of a stay is moot. While the Applicant submits that she served a notice of appeal within the 10-day period, and it was always clear that she intended to challenge the Decision, the Applicant did not take any of the available steps in relation to the SOA. Moreover, the Applicant was advised by Matheson J. in her direction dated August 21, 2023 that there was no automatic stay pending the outcome of a judicial review application. The Applicant did not bring her motion for stay until September 5, 2023.
. Michael v. Koehler [denied hearing, no factors favouring]

In Michael v. Koehler (Div Court, 2023) the Divisional Court considered mootness and whether the case should still be heard nonetheless (it wasn't):
[19] The doctrine of mootness provides that absent issues that engage the public interest, the court should not decide an issue that is no longer live between the parties: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342. The general principle 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. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.


Should the Court Exercise its Discretion to Hear the Appeal?

[21] In considering whether to exercise discretion to hear a matter, the Court must consider whether there are “special circumstances” that warrant the Court’s discretion to expend “scarce judicial resources” and hear a matter. These “special circumstances” require the Court to consider whether:
a. “the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the matter”;

b. the dispute is of a recurring nature and is of a brief enough duration that “the dispute will have always disappeared before it is ultimately resolved”; and

c. the case raises an issue of sufficient “public importance” that “a resolution is in the public interest despite the cost of judicial involvement.[3]
[22] None of these factors are present in this appeal. Accordingly, the appeal is dismissed on the basis that it is moot and there are no special circumstances to warrant hearing the matter.
. Al-Turki v. R. [denied hearing]

In Al-Turki v. R. (Div Court, 2022) the Divisional Court considered a JR application where an otherwise successful applicant before the HRTO challenged an interim HRTO order that ruled that it did not, in the circumstances, have jurisdiction to hear a Charter argument. In this quote to court deals with the mootness issue, and whether it would hear the matter regardless:
Applicable Legal Framework

[22] In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353 the Supreme Court of Canada confirmed that “the doctrine of mootness is an aspect of a general policy or practice that a court may decline to hear a case which raises merely a hypothetical or abstract question” the resolution of which does not or will not affect the rights of the parties. In this case the controversy between the parties that affected their rights has been resolved. The Applicant has the licence he was seeking and the Ministry has revised the impugned policy.

[23] If this is the case Borowski confirms that a court has a residual discretion to hear the case. It sets out the factors that a court should consider in deciding whether to exercise this discretion. It does so in the context of a discussion of the rationales that animate the court’s reluctance to hear moot cases. They are:
(1) “[A] court’s competence to resolve disputes is rooted in the adversary system” (p. 358). In certain cases, while the main dispute between the parties may have disappeared, the adversarial context still exists. Two examples of this that the Supreme Court gives are a case where there were collateral consequences to the parties that would be determined by the resolution of the issue before the court and a case where the dispute had been resolved between the applicant and the respondent, but there were intervenors who still had an interest in the outcome. Their presence was found the provide the necessary adversarial context.

(2) There is a need for judicial economy driven by the fact that judicial resources are scarce. This concern may be less where the court’s decision will still have some impact on the rights of the parties (as in a case where determining the validity of a by-law would determine the outstanding prosecutions against the appellant for violations of the by-law) or in a case where the case (although moot) is “of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly” (p. 360). The example given by the Court was a case where the issue was the validity of an interlocutory injunction prohibiting certain strike action. By the time the issue reached the Supreme Court the strike had been settled, which flowed from the temporary nature of such injunctions. Thus, as put by the Court, “If the point was ever to be tested, it almost had to be in a case that was moot.”

(3) The third “rather ill-defined basis” for a court to exercise its discretion to hear a moot case is a case “which raises[s] an issue of public importance of which a resolution is in the public interest.” In such cases “[t]he economics of judicial involvement are weighed against the social cost of continued uncertainty in the law.” (p. 361) Acting on this third rationale involves the court being sensitive to the law-making function it has to play within our constitutional framework.
Application of the Criteria to this Case

[24] In this case the Applicant submitted three arguments in support of his request that this Court exercise its discretion to hear a case that is moot.

[25] First, he argued that there were other “similarly situated parties” who, while not intervenors in this litigation, might come before the Tribunal in the future to argue that the Tribunal has jurisdiction to hear free-standing Charter claims. According to the Applicant, this reality is underlined by the fact that the Tribunal has issued a number of decisions on this issue.

[26] Second, he submitted that the fact that the Tribunal has issued a number of decisions on this issue and it had never been squarely addressed by the Divisional Court was illustrative of the fact that the issue was evasive of review.

[27] Third, he stated that pronouncing on this issue was part of this Court’s law-making function.

[28] In making his first argument the Applicant primarily relied on three cases – Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357; R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234 and Forget v. Quebec (A.G.), 1988 CanLII 51 (SCC), [1988] 2 S.C.R. 90. Skapinker was one of the cases referred to in Borowski. In that case the Court exercised its discretion to hear the case because there was an intervenor whose rights would be affected by the decision and who would provide the necessary adversarial context. In Mercure, the issue was the right of people charged with provincial offences to have a trial in French in Saskatchewan. Prior to the matter being heard, the Appellant died. Again, the Court granted the intervenor associations the right to continue the appeal as principal parties. One of those intervenors was the Attorney General of Alberta, which, the Court noted, was in a similar situation as Saskatchewan. The decision in Forget concerned whether a provincial requirement for a knowledge of French appropriate to practise a profession in Quebec was unconstitutional. By the time the matter reached the Supreme Court, the impugned regulation had been amended, but not repealed. Because of that amendment and because of the way the individual respondent in that case had framed her claim, she could no longer obtain the remedy she was seeking. Five of the judges decided that the case should be heard anyway because it raised an important point of law and there were other professional candidates whose rights could be affected by the decision.

[29] In the case at bar, there are no intervenors who could provide the necessary adversarial context and whose rights would be affected by our making a decision on the substantive issue. Thus, this case is distinguishable from Skapinker and Mercure. There is no party whose rights will be affected by the decision in front of us to provide the necessary adversarial context. With respect to Forget, while the case at bar may raise an important point of law, it is a totally academic point of law, which may or may not affect the rights of similarly situated people. For example, the Applicant was able to obtain the remedy he needed by relying on the definition of discrimination in the Human Rights Code. We do not know and are not in a position to decide whether there is a case where the definition of discrimination in the Code would not cover an instance of discrimination and the Charter would. As the Court of Appeal noted in Tamil Cooperative Homes Inc. v. Arulappah, 2000 CanLII 5726 (ON CA), [2000] 49 OR (3d) 566:
[13] Courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems.


[24] The importance of a legal issue raised in a proceeding is a relevant consideration in determining whether the court should hear a moot appeal. It is not, however, determinative. There are an almost infinite number of important legal issues lurking in the myriad of rules and regulations governing the citizenry upon which those interested in the issue would appreciate the opinion of an appellate court. If the importance of an issue is enough to overcome concerns associated with hearing moot appeals, the doctrine has little value. It means no more than that the court should not waste its time and resources deciding unimportant legal issues in cases where there is no longer a live dispute between the parties.
[30] The Applicant also submitted that this case is evasive of review. I do not accept that this is true. If the Applicant’s Code claim had failed, the question of his right to bring a stand- alone Charter challenge would not be moot. The Applicant argues that there have been a number of decisions where the HRTO has decided the question of its jurisdiction to hear stand-alone Charter challenges and yet there has never been a judicial review of those decisions. As Sopinka J. pointed out in Borowski at p. 361:
The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.
[31] This is not a situation that is analogous to a temporary injunction in a strike situation where the dispute will always have disappeared before it is resolved. As noted above, if an applicant’s Code claim is dismissed and the Tribunal has ruled against them on the right to bring a stand-alone Charter claim, that issue will not be moot and can be reviewed by this court.

[32] As Borowski points out at p. 362, in deciding whether to hear an otherwise moot application a court must be sensitive to “its role as the adjudicative branch in our political framework.” This involves demonstrating “some sensitivity to the effectiveness or efficacy of judicial intervention.” Deciding an abstract question risk intruding “on the right of the executive to order a reference…” and represents “a marked departure from the traditional role of the Court.”(p. 365)

[33] The onus is on the Applicant to persuade the court to exercise its discretion to hear an otherwise moot application (Tamil Cooperative Homes at para. 16). In view of the lack of adversarial context, the abstract and academic nature of the question at issue and the fact that the issue raised is not evasive of review, that onus has not been satisfied.
. Right to Life Association of Toronto v. Canada (Attorney General) [denied, unlikely to be useful in future]

In Right to Life Association of Toronto v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered when a court may hear a moot issue regardless of it's mootness:
II. Should the Court hear this moot appeal?

[20] I now turn to consider whether the Court should nevertheless hear the appeal, having regard to the following factors from Borowski at 358-363:
(i) the absence or presence of an adversarial context;

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

(iii) whether the Court would be exceeding its proper role by making law in the abstract, a task that is reserved for Parliament.

See also CUPE at para. 9. No one factor is determinative.

[23] ... Even if the appellants were to succeed on this appeal, in my view this is not a case in which this Court should make a declaration on the assumption that the circumstances as they existed in 2018 may exist again in the future: Fibrogen, Inc. v. Akebia Therapeutics, Inc., 2022 FCA 135, 471 D.L.R. (4th) 746 at para. 43. If, as the appellants contend, the application process is amended every year, this Court would be deciding an issue in the absence of an existing factual matrix: Hakizimana at para. 19.

[24] The appellants also assert that this Court should hear the appeal because, if it does not, the decision of the Federal Court below will be binding precedent immune from appellate review. This proposition suggests the appellants’ interest in the appeal is jurisprudential, which is insufficient to sustain an otherwise moot appeal: CUPE at para. 7. Moreover, that argument might be advanced in any circumstance where an appellate court is faced with deciding whether to hear a moot appeal. Although perhaps a relevant consideration, it cannot be determinative on its own for, if it were, the doctrine of mootness would be significantly weakened. In any event, as I have explained above, a decision in this case may have no jurisprudential impact, as future programs may be based on different criteria.

[25] As previously observed by this Court, raising a constitutional question is not sufficient to justify hearing the appeal unless it can be demonstrated that the social cost of legal uncertainty outweighs the economy of judicial resources; on many occasions, this Court has refused to rule on questions that have become theoretical despite the importance they could assume: Abel v. Canada (Citizenship and Immigration), 2021 CAF 131 (CanLII), 2021 FCA 131, [2021] A.C.F. No. 668 at para. 22. Given the nature of the CSJ program and the issues raised on this appeal, I am not convinced that the social cost here outweighs the economy of judicial resources.
. Canadian Union of Public Employees (Air Canada Component) v. Air Canada [denied, wasteful of judicial resources; not evasive of review]

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.


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