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Mootness - Factors to Still Hear (+)


Part 2

. McCauley v. the Ontario Parole Board

In McCauley v. the Ontario Parole Board (Div Ct, 2021) the Divisional Court considered when a moot matter should still be heard:
[4] In Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court explained that the doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case that raises a merely hypothetical or abstract question. This principle applies when the decision of the court will not resolve a controversy that affects or might affect the rights of the parties. In this case, while the applicant will remain incarcerated for another 13 days before she is released, from a practical perspective success on this application will have no value to her. She cannot benefit from an order of this court quashing the decision of the Chair’s delegate refusing to order a new hearing of the applicant’s application for a temporary absence permit. A live controversy no longer exists that affects the rights of the applicant or the respondent. Counsel for the applicant and the respondent agree that this application is moot. But that is not the end of the matter. Despite the absence of a live controversy, a court may elect to hear and address a moot issue if the circumstances warrant it.

[5] The onus is on the applicant to satisfy the Court that this matter should proceed despite its mootness. In deciding whether this court should exercise its discretion to hear this matter, we must consider three factors:
(1) there must be an “adversarial context” within which the parties have a full stake in the outcome;

(2) the Court must be mindful of judicial economy. The special circumstances of the case, typically that the case raises an important question of a recurring nature but of brief duration making it elusive of review, or a matter of public importance, the resolution of which is in the public interest; and

(3) the Court must maintain an awareness of its proper law-making function and avoid intruding into the role of the legislative branch.
. Simone v. 1312733 Ontario Inc.

In Simone v. 1312733 Ontario Inc. (Div Ct, 2020) the Divisional Court cited the test for when a moot issue should still be decided:
[7] The Court of Appeal for Ontario has emphasized that it is only in “exceptional cases” that a court should exercise its discretion to hear a moot appeal: Tamil Co-Operative Homes Inc. v. Arulappah, 2000 CanLII 5726 (ON CA), 49 OR (3d) 566 (C.A.), at para. 13. The three criteria courts consider in deciding whether to hear a moot appeal are: 1) the presence of an adversarial context, 2) the concern for judicial economy, and 3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 43.
. Elementary Teachers Federation of Ontario v. York Region District School Board

In Elementary Teachers Federation of Ontario v. York Region District School Board (Div Ct, 2020) the Divisional Court reviewed basics of mootness:
[61] In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court articulated the test as follows. First, the court must determine whether the case is moot. Second, if the matter is moot, the court may nevertheless choose to exercise its discretion to hear the case on the merits.

[62] The first branch of the Borowski test asks if there remains a live controversy. Is there a tangible and concrete dispute, or is the issue purely academic? The second branch requires the court to consider whether it should exercise its discretion to hear an otherwise moot appeal. Borowski set out three underlying rationales. These were summarized in R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 39:
(a) the existence of a truly adversarial context;

(b) the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases; [and]

(c) the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
. R. v. Smith

In R. v. Smith (SCC, 2004) the Supreme Court of Canada set out when it was appropriate to hear a moot appeal:
D. The Test for the Exercise of Discretion

39 Borowski identified three principal “underlying rationalia” for the “policy or practice” governing the continuance of moot appeals:
(a) the existence of a truly adversarial context;

(b) the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;

(c) the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
The Court indicated that these three “rationales” are not exhaustive (p. 358), nor is their application a “mechanical” process (p. 363), but the Court must exercise its discretion “judicially . . . with due regard for established principles” (p. 358).

40 In Adams, supra, the Court exercised its discretion to proceed with the moot appeal because, per Sopinka J., at p. 719, it was “in the public interest” to do so.

41 Jetté, supra, made no reference to Borowski or Adams or to the more general principles developed to deal with moot appeals, but the factors mentioned by the Quebec Court of Appeal are compatible with those principles, namely:
1. that there are serious grounds of appeal;

2. that the verdict carried with it significant consequences for the party seeking to continue the proceedings;

3. that it is in the interests of justice to do so.
The fundamental criterion is “the interests of justice”. The two preliminary Jetté factors can be subsumed in the “interests of justice”, which is a broad and flexible concept, and deliberately chosen on that account. Borowski supplies the principled framework within which “the interests of justice” can be evaluated.

42 It is apparent that if there are no “serious grounds of appeal”, the appeal should be abated. Equally, under the second Jetté factor, where a verdict carries no significant consequences for the party seeking to continue it, a court should not exercise its discretion in favour of continuing the appeal. However, this factor will, in most cases, be self-fulfilling. If there were no significant consequences for the survivors, they would be unlikely to resist the Crown’s motion to quash the appeal.

43 The second Jetté factor is nevertheless a useful reminder of the need to differentiate between the potential benefits of the appeal to the original appellant, who can no longer be comforted, and the collateral consequences or potential benefits, if any, to those who have survived him or her, and to the public.

44 Reference to the “significant consequences for the party seeking to continue the proceedings” may, in some senses, be both too narrow and too broad. It may be too narrow because the consequences to the public may be as important, if not more so, as those motivating the survivors of the deceased appellant seeking to continue the appeal: R. v. Yarema (1991), 1991 CanLII 7098 (ON CA), 3 O.R. (3d) 459 (C.A.).

45 Viewed in another light, the second Jetté factor could also be seen as too broad, because any criminal conviction potentially carries significant consequences in a subjective sense in the eyes of the executor, or personal representative, and members of the family of the deceased. In the present appeal, for example, counsel for the appellant argues that murder is the most serious of criminal offences and carries with it a stigma that imposed a burden not only on the deceased but on his family. Yet most serious crimes carry a stigma, and if that, combined with serious grounds of appeal, were sufficient, the continuation of the appeal of a dead appellant would become the rule rather than the exception in criminal matters. Conviction of almost any offence involving sexual abuse or fraud, for example, attracts stigma, and could also be expected to agitate a supportive family.

46 It is “the interests of justice” on which Wells C.J.N.L. laid his emphasis, and I think he was correct to do so. This was clearly the primary consideration of Fish J.A. in Jetté. The “interests of justice” test captures the flexibility urged by Sopinka J. in Borowski (at p. 358). It signals the need not to be too dogmatic about the various criteria for its application. The exercise of the court’s discretion should turn on a consideration of all the relevant circumstances, keeping in mind the general rule that in the overwhelming number of cases the death of the appellant abates his or her appeal leaving the conviction intact.

47 In Jetté, the “interests of justice” test was clearly satisfied. The grounds of appeal were not only serious, but overwhelming. The Quebec Court of Appeal was confronted with fresh evidence that suggested the factual innocence of the convicted offender. The opportunity to clear the name of the deceased appellant was of major significance to his family, and their determination to establish his factual innocence supplied the adversarial context. In the presence of such an apparent miscarriage of justice, “scarce judicial resources” could seldom be a disqualifying consideration. The issues surrounding the perjured testimony were quintessentially for the courts, not the legislature, to resolve. For the court to have declined to look into a serious abuse of its own process would clearly not have been “in the interests of justice”.

48 Jetté raised issues of broad public importance concerning police conduct and a potential systemic failure in the justice system, as well as the spectre of a serious injustice to the deceased and his family. In other words, continuance of the appeal had important collateral consequences above and beyond the potential impact on the verdict itself.

49 The existence of such collateral consequences for the administration of justice, quite apart from the interest of the particular convicted individual or his family, is an important consideration. In Morin v. National SHU Review Committee, [1985] 1 F.C. 3 (C.A.), for example, a legal point arose which recurs with some frequency but, due to the nature of the proceedings in which it generally arises, is ordinarily evasive of appellate review. In such cases, assuming the existence of a proper adversarial context, a court may consider it to be a good use of judicial resources to resolve the legal controversy if it is otherwise “in the interests of justice” to proceed. Such was the case in Adams, supra, where the Court dealt with an appeal of revocation of a publication ban in the knowledge that such bans are frequently spent before appeals can be exhausted. A moot appeal may also raise questions about systemic failures in the justice system, as with the allegation of police brutality in Jetté, which transcend the interests of the immediate parties, and may justify the continuation of the appeal provided the appropriate adversarial context exists.

50 In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive. Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:
1. whether the appeal will proceed in a proper adversarial context;

2. the strength of the grounds of the appeal;

3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:

(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;

(b) a systemic issue related to the administration of justice;

(c) collateral consequences to the family of the deceased or to other interested persons or to the public;

4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;

5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
51 What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.


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