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Mootness - Where Issue Denied Hearing (3). Ontario Place for All Inc. v. Ontario Ministry of Infrastructure
In Ontario Place for All Inc. v. Ontario Ministry of Infrastructure (Div Court, 2024) the Divisional Court holds that a moot issue not be heard nonetheless:[19] The respondents also resist the request for the court to hear the request for a declaration that the government’s conduct was unlawful prior to the passage of ROPA. They submit the question is moot and the court should not exercise its discretion to hear this issue. The applicant does not agree the issue is moot and, in any event, states the court should exercise its discretion to allow the judicial review to proceed.
[20] The question of whether the respondents acted unlawfully in failing to obtain an environmental assessment before the passage of ROPA is moot. A moot case is one in which “no present live controversy exists which affects the rights of the parties,” or “the required tangible and concrete dispute has disappeared and the issues have become academic”; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. Because I have concluded s. 9 unequivocally exempts the redevelopment of the West Island from the EAA, a declaration would serve no practical purpose.
[21] Borowski provides that a court may exercise its discretion to hear a case even if it finds it to be moot. In my view, the court should not do so here. Greenpeace Canada (2471256 Canada Inc.) v. Minister of the Environment, 2019 ONSC 670, which the applicant relies on, is distinguishable. There, the Minister argued he was not required to comply with the public consultation process under the Environmental Bill of Rights with respect to an environmental regulation because the recent Ontario election had been a substantially equivalent process of public consultation. While the regulation was subsequently revoked, the consultation provisions in the Environmental Bill of Rights remained the law. The court decided the application was not moot because there remained a live issue: The Minister could take the same view in the future about the provincial election being “substantially equivalent” to public participation in respect of other environmental policies or regulations.
[22] Here, there is no similar concern. The situation is fact-specific and unlikely to recur. Second 3 of the EAA as it read at the time the application was started has been revoked. Any interpretation of whether and how it applies to the circumstances of this case therefore will have little public interest value.
[23] Further, the court’s conclusion in this case would be highly fact-dependent. To determine whether the redevelopment of the West Island constituted an “undertaking” to which a Category C Public Work Class Environmental Assessment applied before ROPA, the applicant has requested production of the “Lease and any other contractual arrangements with Therme, along with any business case for the Spa and West Island Redevelopment.” It alleges the lease and contractual arrangements with Therme contain terms making it clear the West Island redevelopment was not a private undertaking. In other words, the applicant’s case relies on the specific relationship between the parties and other details of the business case. Any declaration issued by the court would be fact-specific and would not address any identifiable principles for future cases.
[24] One of the factors for the court to consider in exercising its discretion is whether deciding the issue would be inconsistent with the institutional role of the court: Borowski, at pp. 362-363. In my view, it would overstep the court’s role to decide the issue of a declaration when there is no ongoing live dispute and no principle that is likely to recur. . Grey v. Leblanc
In Grey v. Leblanc (Ont CA, 2024) the Ontario Court of Appeal considered the frequent mootness issues that can arise when treatment and/or MH admission determinations are 'spent' well-before a CCB appeal can be heard:[2] The appellant has a long history of mental illness and hospital admissions, both voluntary and involuntary. The involuntary admission that is the subject of this appeal occurred on August 20, 2020, when the appellant was brought to and admitted as an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”). On September 4, 2020, the respondent issued a Form 4 (Certificate of Renewal) to renew the appellant’s involuntary status certificate, relying on both Box A and Box B criteria under s. 20 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). The Board confirmed the respondent’s decision to hold the appellant as an involuntary patient at CAMH. On September 23, 2020, CAMH discharged the appellant.
[3] Amicus curiae concedes that the appeal is moot but submits that the appeal judge erred in not exercising his discretion to hear the appeal. Amicus argues that the legitimacy of the appeal process requires the appeal to be heard. If appeals are not heard after appellants have been discharged, amicus submits that the appeal right becomes illusory and procedural fairness could be undermined. Further, she contends that the treatment administered to the appellant and whether the appellant experienced clinical improvement during her involuntary admission can be considered in the future as part of the Box B criteria under s. 20 (1.1) (a) and (b) of the MHA. Finally, she submits that appellate guidance would be welcome on the evidentiary thresholds related to the Box B criteria. The appellant also made submissions that the Board’s determination is relevant to her future courses of treatment because her involuntary admission is tied to a diagnosis of schizoaffective disorder that she disputes.
[4] We also see this appeal as moot and decline to hear the appeal for the reasons expressed by the appeal judge.
[5] A court will generally decline to exercise its discretion to hear an appeal where there is no live controversy between the parties unless the court decides there is good reason to do so: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342. Recently, this court declined to hear appeals from the Board’s decisions because there was no live controversy between the parties and no special circumstances warranting the exercise of the court’s discretion to hear the appeal or practical effect of the Board’s decision on the appellant’s rights: see Adsett v. Labelle, 2024 ONCA 366; Kozoubenko v. Gosk, 2023 ONCA 802.
[6] That is the case here. There is no live controversy. The certificate of involuntary admission has expired, and the appellant is no longer detained at CAMH: see e.g., E.S. v. Joannou, 2017 ONCA 655, at para. 35. There are no outstanding proceedings involving the parties or the Board.
[7] Moreover, we see no prejudice to the appellant if her appeal is not heard, nor any impact on her future rights. If it ever arises in the future, the question of involuntary status will have to be decided afresh on the basis of new evidence at the time of the admission: Elder v. Klukach, 2017 ONSC 2637, at paras. 6-7. Further, a successful appeal from the Board’s confirmation of the appellant’s most recent involuntary admission would not eradicate her historical medical record of treatments and diagnoses. We also agree with the appeal judge’s observation that “[i]f a future board is called upon to make findings about the appellant’s past treatments, the appellant will have all the same arguments available to her about the sufficiency and quality of the evidence on which that future board may act.”
[8] We do not accept amicus’s submission that appeals from the Board’s decisions are evasive of review. The case law does not reflect amicus’s concern that the denial of the right of appeal upon discharge renders the right of appeal empty in all but the lengthiest admissions. For example, in E.S., this court decided to hear the appeal because of the constitutional issues raised in that case, notwithstanding that it was moot as a result of the appellant’s discharge. Rather, all appeals are subject to review by the Superior Court of Justice and then by this court. Determining whether an appeal will be heard notwithstanding that it is moot requires the reviewing court to assess whether its discretion should be exercised given the particular circumstances of the case.
[9] Nor are we persuaded that discharges could or would be strategically used to avoid the appeal process. Any such an abuse of process would be subject to appellate review. We see no evidence of any such abuse of process in this case or systemic problems that warrant appellate intervention in an otherwise moot appeal.
[10] Finally, we do not agree that this court should hear the appeal on the basis that appellate guidance is needed on the interpretation of the Box B criteria. This case raises no novel issue and amicus has not taken us to any conflicts in the existing case law that require clarification.
[11] The appeal is therefore dismissed on the basis that it is moot. . 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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