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Mootness - Where Issue Denied Hearing (3). Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal found that a federal Lobbyist Act appeal was moot after statutory changes, and that the case did not merit hearing regardless:[1] The appellant, Democracy Watch, appeals from the judgment of Furlanetto J. of the Federal Court (the Federal Court) rendered on June 20, 2023 (2023 FC 825), which dismissed the appellant’s application for judicial review of two reports of the Commissioner of Lobbying of Canada (the Commissioner). In its reports, the Commissioner concluded that the Lobbyists’ Code of Conduct (former Code), developed pursuant to subsection 10.2(1) of the Lobbying Act, R.S.C., 1985, c. 44 (4th Supp.), was not breached by two registered lobbyists.
[2] Specifically, the Commissioner was tasked with determining whether the registered lobbyists had breached Rules 6 and 9 of the former Code–which related to conflicts of interest–by attempting to lobby the then Minister of International Trade after having conducted political activities on her behalf. The appellant alleges that the Federal Court erred by finding that the Commissioner’s interpretation and application of Rules 6 and 9 of the former Code were reasonable.
[3] It is noteworthy that a new version of the former Code came into force on July 1, 2023, (current Code).
[4] Namely, the current Code does not contain former Rules 6 and 9. In fact, they no longer exist. Current Rule 4.3 replaces former Rule 6 and current Rule 4.2 replaces former Rule 9 (see Office of the Commissioner of Lobbying of Canada, Renewing the Lobbyists’ Code of Conduct–Updated standards for ethical and transparent lobbying (Ottawa: OCLC, 2022) at 15–18).
[5] Given the coming into force of the current Code, this Court must now determine whether the appellant’s appeal has become moot and, if so, whether it should exercise its discretion to hear it. A matter becomes moot when there is no longer a live controversy affecting the rights of the parties (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), 57 D.L.R. (4th) 231, [1989] 1 S.C.R. 342 at 353 (Borowski)). A court must consider the following criteria when deciding to exercise its discretion to hear a moot matter: (i) whether there exists an adversarial context; (ii) whether deciding the matter would result in a waste of judicial resources; and (iii) whether the Court would exceed its proper role by deciding the issue (Borowski at 358–63).
[6] It is apparent that no live controversy exists in this case. The appellant acknowledged that it is not pursuing this appeal with the objective of finding the registered lobbyists in contravention of the former Code, but rather to seek guidance, "“going forward”", on the interpretation of specific expressions contained in the former Code (Memorandum of fact and law of the Appellant at para. 8). Although the appellant contends that some expressions contained in the former Code also appear in the current Code, their meaning remains to be informed by the entirety of the new text of the Sections or Rules of the current Code in which they appear. Hence, considering that: (i) the former Code, which contextualized these expressions, no longer exists; (ii) the issues that were before the Commissioner will not arise in the same way under the current Code; and (iii) the current Code was not before the Commissioner nor before the Federal Court, no live issue remains between the parties. This Court has consistently held that a "“mere jurisprudential interest fails to satisfy the need for a concrete and tangible controversy”" (Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67 at para. 7; see also Public Service Alliance of Canada v. Canada (Attorney General), 2021 FCA 90; Peckford v. Canada (Attorney General), 2023 FCA 219). We are therefore of the view that this appeal is moot.
[7] Neither has the appellant convinced us that we should exercise our discretion to hear the appeal. A weighing of the Borowski factors strongly opposes the hearing of the appeal as it would result in a waste of judicial resources and offend the principle of judicial economy. Further, the appellant has not persuaded us that the issues raised are elusive of review. It would be inappropriate for the Court to rule on the interpretation of expressions and rules contained in the former Code. Should these issues arise again; the appellant will have the opportunity to challenge the interpretation of these expressions in the context of the current Code and the Commissioner will provide its interpretation. In sum, the appellant is asking our Court to provide a legal opinion in the abstract, which is not our role, as ruling on these issues in the absence of a live controversy would lead the Court to overstep its adjudicative role. . Sinclair v. Canada (Attorney General)
In Sinclair v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal by a public servant who had been denied a JR of a decision by the Public Service Commission of Canada (PSC) in turn denying them permission to run as a candidate in a Yukon territorial election.
As the JR was filed after the election, the issue of mootness arose:[3] The Federal Court (per Sadrehashemi J., 2023 FC 750) found that Mr. Sinclair’s application was moot based on the test as set out in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, 57 DLR (4th) 231 (Borowski). The election for which he was seeking to be a candidate was held before he made his application for judicial review. In this appeal, Mr. Sinclair does not challenge the finding that his application was moot.
[4] In Borowski, the Supreme Court of Canada identified the relevant criteria to be considered by a court in deciding whether to exercise its discretion to decide a matter that is moot:(a) the existence of an adversarial relationship between the parties;
(b) the concern for judicial economy; and
(c)the need for the court to be sensitive to its adjudicative role. [5] The Federal Court Judge considered these factors and declined to exercise her discretion to decide the application for judicial review. Mr. Sinclair’s application was therefore dismissed. In this appeal, Mr. Sinclair challenges this decision of the Federal Court Judge to decline to exercise her discretion to decide his application for judicial review.
[6] In my view, the Federal Court Judge did not commit any error that would warrant our intervention in declining to exercise her discretion to decide Mr. Sinclair’s judicial review application, based on the record that was before her. This is sufficient to dismiss this appeal.
[7] Mr. Sinclair submitted that he is seeking statements of general principles from this Court that could be applied to any future decision of the PSC on an application by a public prosecutor for permission to be a candidate in an election.
[8] I would note that guidance has already been provided by this Court in Taman v. Canada (Attorney General), 2017 FCA 1 (Taman) on what is to be addressed, from an administrative law perspective, in a decision of the PSC regarding a request by a public prosecutor to be a candidate in an election.
[9] Guidance has also been provided by the Supreme Court in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Language, Culture and Employment), 2023 SCC 31 (CSFTNO) (and the other decisions of the Supreme Court referred to therein) concerning the application of Charter rights and values in administrative decisions.
[10] It was not contested in this appeal that decisions by the PSC refusing to grant public servants permission to seek elected office must be justified to the applicants (Taman at para. 47; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 95) and must reflect a proportionate balancing of their Charter rights or the values underlying them (CSFTNO at para. 73).
[11] It is far from clear what other general guidance could be provided by this Court. The Federal Court Judge, in paragraph 15 of her reasons, referred to three declarations that Mr. Sinclair was seeking:i) the PSC’s decision disproportionately impacted his Charter rights;
ii) with the exception of the DPP [Director of Public Prosecutions] and the Deputy Directors of Public Prosecutions, federal Crown prosecutors are presumptively permitted to seek nomination and/or run as candidates in federal, provincial, or territorial elections; and
iii) prior to issuing any decision contrary to that presumption, the PSC must refer that determination to this Court under subsection 18.3(1) of the Federal Courts Act, RSC, 1985, c F-7 on the issue of whether the PSC’s proposed disposition disproportionately impacts the prosecutor’s Charter rights. [12] The first declaration relates directly to the PSC decision that is the subject of Mr. Sinclair’s judicial review application. Since his application was moot and the Federal Court Judge did not exercise her discretion to decide his application even though it was moot, this requested declaration did not warrant any further consideration by the Federal Court Judge.
[13] Neither one of the other two declarations arise from the PSC decision nor are they identified as requested declarations in Mr. Sinclair’s notice of application. These requested declarations are general declarations that Mr. Sinclair is seeking to have applied in a future decision of the PSC. The Federal Court Judge found that these requested declarations were not appropriate and Mr. Sinclair has not established that the Federal Court Judge erred in making this finding.
[14] There is one matter that was raised in argument that warrants a comment. The PSC in its decision found that a sufficient mitigating factor could not be identified for two specified risks to the perception of political impartiality that could result from granting Mr. Sinclair’s request. In particular, the PSC referred to the risk stated as "“reputational concerns related to the role of Crown prosecutors”". It is not clear whether this statement is limited to Mr. Sinclair’s role as a Crown prosecutor in Whitehorse or to all Crown prosecutors.
[15] Any decision under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA) to grant or deny permission for a public servant, who is otherwise eligible to be a candidate in an election, is to be based on the facts and circumstances related to that particular person. A blanket prohibition on any Crown prosecutor seeking to be a candidate in an election would not be consistent with the purpose of Part 7 of the PSEA: "“to recognize the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service”" (section 112 of the PSEA).
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