Simon's Megalomaniacal Legal Resources

Mootness - Factors Still to Hear (2)

. Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General)

In Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General) (Div Court, 2024) the Divisional Court allows a employee's association JR of a arbitrator's decision relating to an alleged racially-motivated 'shove' in the workplace.

Here the court weighs whether a matter is moot:

Judicial Review Application is Not Moot

[24] The respondent argued the application for judicial review was moot because the arbitrator had labelled the investigation as procedurally flawed, directed the respondent not to rely upon the investigation report, and ordered the respondent to pay the grievor monetary damages. After hearing the parties’ submissions on this issue, the court determined the application was not moot with reasons to follow. These are the reasons.

[25] A proceeding is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. A “live controversy” must be present not only when the action or proceeding is commenced, but also when the court is called upon to reach a decision: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

[26] In Borowski, at p. 353, the Supreme Court of Canada adopted a two-step analysis to determine whether a matter should be dismissed as moot: “[f]irst, it is necessary to determine whether the required tangible and concrete dispute has disappeared, and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.”

[27] On a plain reading of the arbitrator’s decision, it is readily apparent there remains a tangible and concrete dispute between the parties as to whether the respondent’s workplace investigation was tainted by anti-Black bias. One of the remedies sought by the grievor was damages for discrimination. Damages for procedural flaws, the removal of the investigation report from the grievor’s personnel file, and the direction by the arbitrator that the contents of the report not be relied upon for any purpose are not a substitute for damages for discrimination.

[28] The issues of procedural fairness and discrimination are distinct and there remains a live controversy between the parties. The application for judicial review is not moot.

. Whitstone v. Onion Lake Cree Nation

In Whitstone v. Onion Lake Cree Nation (Fed CA, 2023) the Federal Court of Appeal considered the criteria for hearing a moot matter:

[10] The parties appear to agree that the criteria for consideration in the exercise of discretion to hear a moot case are as set out in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 18 (Doucet-Boudreau), citing Borowski at 358-363:

(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.

[11] I will address each of these criteria in turn.

[12] I accept that there is an adversarial context in this case. All sides have made their arguments with vigour. No party disputes that this first criterion is satisfied.

[13] The second criterion, the concern for judicial economy, requires consideration of the following factors:

(i) whether the court’s decision will have some practical effect on the rights of the parties,

(ii) whether the issues in dispute are of a recurring nature but brief duration, which may be evasive of review, and

(iii) the public importance of resolving the debate between the parties.

(Borowski at 360-362)

[14] As alluded to above, the “practical effects” cited by the appellants concern the hope of repairing their respective reputations and recovering lost salary and benefits. However, the repair that this Court could make to the appellants’ respective reputations is notional at best. As indicated above, it is not this Court’s role to reweigh the merits of Ms. Blois’s appeal, and we would do no more than remit the matter to the Tribunal for a new determination. Further, if this Court were to allow the present appeal on the basis that Ms. Blois’s appeal should not have been considered in the first place, it is unlikely that this Court would consider the Tribunal’s findings that have reputational effects on the appellants (the allegations of monetary obligations and libel/slander). Moreover, given the passage of time, it is difficult to imagine that either the OLCN (as the funding source) or the Tribunal would want to devote resources to an appeal that could have no direct effect on the governance of the OLCN. Accordingly, regardless of the merits of the present appeal, it is unlikely that the Tribunal’s findings that concern the appellants would be replaced.

[15] It is also unlikely that the appellants could recover lost salary and benefits. As the Federal Courts Act, R.S.C. 1985, c. F-7, does not contemplate relief of this nature in judicial review, it is not within this Court’s jurisdiction to order such recovery: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 at para. 52. Moreover, as discussed in the previous paragraph, the Tribunal is unlikely to deal with the matter.

[16] Though I acknowledge that there remains a possibility that a decision by this Court in the present appeal could have marginal positive reputational or financial effects for the appellants, I find that those effects are outweighed by the consideration of whether the issues in dispute are of a recurring nature but brief duration, which may be evasive of review. The term of the elections in issue was four years, and hence not of brief duration. Several events contributed to the delays that resulted in Ms. Blois’s appeal taking over three years to decide, and the present appeal being held after the next OLCN Council election had taken place. Key among these events were (i) the effort by the OLCN Chief and Council in January 2019 (later reversed: see Blois v. Onion Lake Cree Nation, 2020 FC 953) to stop the process, which delayed the matter for over 20 months until October 2020, and (ii) the COVID-19 pandemic, which significantly constrained many activities from March 2020 onward. These two events explain most of the delay in the Tribunal’s work and are unlikely to recur. The issues the appellants seek to raise in this appeal are not evasive of review.

[17] The last of the judicial economy considerations identified above is the public importance of resolving the debate between the parties. I accept that the legal issues the parties address in the present appeal, which relate to governance, are of public importance. That said, I am mindful that the OLCN Election Law and the OLCN Appeals Regulation intend that these issues be decided within the OLCN community and not by this Court. This Court serves merely a supervisory role. This fact is particularly important in this case, which concerns indigenous self-government: see Pastion v. Dene Tha’ First Nation, 2018 FC 648, [2018] 4 F.C. 467 at paras. 22-23, cited in Porter v. Boucher-Chicago, 2021 FCA 102 at para. 27. This consideration does not assist the argument for hearing this moot appeal.

[18] I come now to the third of the criteria identified in Doucet-Boudreau for consideration in the exercise of discretion to hear a moot case: the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. I accept that hearing the present appeal would not necessarily take this Court outside of its adjudicative role. However, as discussed in the previous paragraph, I believe that this Court should hesitate before becoming involved in a matter of indigenous self-government where the intent of the governing legislation is that the dispute should be dealt with by the Tribunal. It is the Tribunal’s role to interpret and apply the applicable provisions of the OLCN Election Law and the OLCN Appeals Regulation. This Court’s role should be deferential and limited to determining whether such interpretation and application was fair and reasonable.

. International Union of Operating Engineers, Local 793 v. Aecon Group Inc.

In International Union of Operating Engineers, Local 793 v. Aecon Group Inc. (Div Court, 2023) the Divisional Court considered the test for hearing a moot issue, regardless of it's mootness:

[23] 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.[13] 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.

...

[25] Given these circumstances and the Applicant’s concession, I find that the Application is moot. I turn now to whether there are special circumstances that warrant the Court exercising its discretion to hear the application.
Should the Court Exercise its Discretion to Hear the Application?

[26] In considering whether to exercise discretion to hear an application, 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:

i. “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 action”;

ii. 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

iii. the case raises an issue of sufficient “public importance” that “a resolution is in the public interest” despite the cost of judicial involvement.[14]

[27] In Canada (National Revenue) v. McNally, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.”[15]

. R v Jackson

In R v Jackson (Ont CA, 2015) the Court of Appeal explains when a moot issue may be heard:

[51] From time to time, the doctrine of mootness surrenders, admitting of a discretion to depart from rigid application to permit a court to hear and determine a case in which the lis inter partes has dissolved: Borowski, at p. 353; Mental Health Centre, at para. 36.

[52] When one party urges mootness and seeks to disentitle another party to a hearing or decision, a court must determine first whether the essential tangible and concrete dispute – the lis inter partes – has disappeared and the issues have become academic. An affirmative response at this first step requires the court to determine next whether it should exercise its discretion to hear and decide the case: Borowski, at p. 353; Mental Health Centre, at para. 36.

[53] To decide whether to exercise its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present:

i. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

. Ontario (Provincial Police) v. Mosher

In Ontario (Provincial Police) v. Mosher (Ont CA, 2015) the Court of Appeal sets out when a moot issue may be heard:

[31] ... An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

[32] Three basic rationalia underpin the mootness doctrine:

i. that a court’s competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

[33] The first rationale may be satisfied where the live controversy has ceased but the essential adversarial relationship nevertheless prevails. Collateral consequences may provide the necessary adversarial context: Borowski, at pp. 358-9.

[34] The second rationale – the concern for judicial economy – may be met in cases which are at once moot but of a recurring nature and brief duration. A flexible application of the mootness doctrine ensures that important questions, which might independently evade review, are heard and decided by the court: Borowski, at p. 360.

[35] A somewhat more amorphous basis to justify the deployment of limited judicial resources arises in cases that involve issues of public importance of which a resolution is in the public interest. The economies of judicial involvement are balanced against the social cost of continued legal uncertainty: Borowski, at p. 361.

[36] In exercising its discretion to hear and determine an appeal that is moot, a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present. The process is not mechanical. The principles may point in opposite directions. The absence of a third may overbear the presence of one or two. And vice versa: Borowski, at p. 363.

. Slate Management Corporation v. Canada (Attorney General)

In Slate Management Corporation v. Canada (Attorney General) (Ont CA, 2017) the court repeats the test for deciding when a moot issue may be decided:

[28] Once a court determines that an appeal is moot, it is necessary to decide whether the court should nonetheless exercise its discretion to hear the case: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at p. 353. Three factors are relevant in determining whether a court should entertain a moot appeal: (i) the presence of an adversarial context that will ensure that the issues are well and fully argued; (ii) concern for judicial economy; and (iii) awareness of the court’s proper law-making function: Borowski, pp. 358-363.

. Dagg v. Cameron Estate

In Dagg v. Cameron Estate (Ont CA, 2017) the court repeats the test for hearing a moot issue:

[32] The exercise of that discretion is guided by a consideration of the presence or absence of the three rationales underpinning the mootness doctrine: (i) whether the issues can be well and fully argued by parties who have a stake in the outcome; (ii) the concern for judicial economy; and (iii) the need for the court to remain alive to the proper limits of its law-making function in order to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-63; Ontario Provincial Police Commissioner v. Mosher, 2015 ONCA 722 (CanLII), 330 C.C.C. (3d) 149, at paras. 31-32. The interplay amongst the three rationales was described in Borowski at p. 363:

In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

. Halat (Re)

In Halat (Re) (Ont CA, 2019) the court cited law on when a moot issue may be heard:

[7] The seminal case from the Supreme Court of Canada on the question of when a court should exercise its discretion to hear a moot case or appeal is Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, where the court mandated a two-step process for the analysis. The first step is to decide whether the case or appeal is moot, i.e. whether there remains a live controversy that affects the rights of the parties. If there is not and the case or appeal is therefore moot, the general rule is that the court will not hear the matter.

[8] However, the court must decide whether it should exercise its discretion to hear and decide the case or appeal in any event, considering three factors: 1) whether the necessary adversarial context remains, which may be provided by collateral consequences of the resolution of the issue between the parties; 2) despite the concern for judicial economy, whether special circumstances justify applying scarce judicial resources to the case because, for example, the case raises an important issue that will always be moot by the time it reaches appeal, or an issue that is a matter of public importance and in the public interest to resolve; 3) the need for the court to be aware of its proper law-making function and the extent to which it may be departing from its traditional role by hearing the case or appeal: Borowski, at pp. 358-63.

. Hakizimana v. Canada (Public Safety and Emergency Preparedness)

In Hakizimana v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2022) the Federal Court of Appeal considered mootness:

[11] It is trite that the application of the mootness doctrine involves a two-step analysis. The first step requires an assessment of whether the tangible and concrete dispute between the parties has disappeared. The Court must determine whether there is still a "“live controversy”". If there is no longer a live controversy between the parties, the second step of the analysis requires the Court to decide whether it should nevertheless exercise its discretion to hear the case (Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited, 2021 FCA 26, [2021] F.C.J. No. 172 (QL/Lexis) at para. 74, citing Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 at 353 (Borowski)).

....

[20] Having decided that the present matter is moot, the issue is now whether the Court should nevertheless exercise its discretion and decide the case, which is what the appellants are urging the Court to do. This issue requires the consideration of the following factors: (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 reserved for Parliament (Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67, [2021] F.C.J. No. 286 (QL/Lexis) at para. 9 (CUPE); see also Borowski at 358-363).

. Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board

In Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022) the Divisional Court considered the law of mootness (see judge joke at end of para 36):

[33] 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, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

[34] The doctrine of mootness is an aspect of general policy or practice that a court may decline to decide an application if it raises mere hypothetical or abstract questions that will not resolve an ongoing controversy affecting the rights of the parties. In spite of this policy, however, courts may exercise discretion to consider moot applications. The Applicant bears the onus of establishing that its moot application ought to proceed.

[35] In deciding whether to exercise its discretion, this Court must consider the following three factors established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC):

1. that a court’s competence to resolve legal disputes is rooted in the adversarial system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

2. the Court must be mindful of the need for 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. (See also Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 at paras. 28, 41-43 (Div. Ct.); McCauley v. the Ontario Parole Board, 2021 ONSC 1874 at paras. 4-5 (Div. Ct.)).

[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.”