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Mootness - Factors Still to Hear (3). Hussein v. Qazi
In Hussein v. Qazi (Ont CA, 2026) the Ontario Court of Appeal considers when the court may heard an issue despite it being moot:[8] It is exceptional for the court to hear moot issues in an appeal. The onus lies with the party seeking a determination on the merits to show “why the court should depart from its usual practice of refusing to hear moot appeals”: Tamil Co-Operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 17. In deciding whether to exercise this discretion, the court will be guided by such factors as the presence of an ongoing adversarial context, concerns for judicial economy, and the need for the court to be sensitive to its proper adjudicative role: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 18. These factors are neither rigid nor exhaustive, and discretion must be exercised with a view to the circumstances of each case: Tamil Co-Operative Homes, at para. 17. With respect to judicial economy, it may be necessary to devote scarce judicial resources to a moot question, for example, where there is a sufficiently high “social cost in leaving the matter undecided”: Borowski, at p. 362. This may occur where the issues in dispute are of significant public importance, or where they are “recurring in nature, but of brief duration” and therefore evade review: Taylor v. Newfoundland and Labrador, 2026 SCC 5, 510 D.L.R. (4th) 195, at paras. 55-56. . Mackinnon v. Canada (Attorney General)
In Mackinnon v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal considered when the court may consider argument even though the matter is moot:[4] As is always the case where a question of mootness arises, we must address two issues. The first is whether the appeal has indeed become moot. In the event that we determine that to be the case, we must then go on to decide whether to exercise our discretion to hear the matter, notwithstanding its mootness: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.
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[7] We agree with the respondent and the interveners that this appeal has indeed become moot. As noted in the appellants’ Notice of Appeal, they sought to challenge the decision of Prime Minister Trudeau to advise the Governor General to prorogue the 44th Parliament. That has already occurred and the 45th Parliament has been in session for months. There is thus no live controversy as to whether the 44th Parliament should be prorogued.
[8] That said, the parties and interveners all contend that we should exercise our discretion to hear and decide this appeal, as it raises important legal issues of significant public interest that are generally evasive of review. They further agree that it is important that there be appellate guidance regarding the role, if any, that the Courts should play in overseeing advice provided to Governors General by Prime Ministers with respect to the exercise of the prorogation power.
[9] The fact that the litigants agree that we should exercise our discretion to hear this matter, notwithstanding the fact that it has become moot, does not mean that we should simply "“rubber stamp”" their agreement and direct that the appeal proceed to a hearing on its merits. The Supreme Court tells us that courts should generally decline to hear cases that raise hypothetical or abstract questions that will have no practical effect: Borowski, above at p. 353. Thus, we must determine for ourselves whether exceptional circumstances arise in this case that would justify the exercise of our discretion to hear the appeal.
[10] The Supreme Court’s most recent pronouncement on the issue of mootness appears in Taylor v. Newfoundland and Labrador, 2026 SCC 5. There the Court reaffirmed that the "“""Borowski criteria”" continue to guide the exercise of a court’s discretion to hear a matter that has become moot: at para. 44. In determining whether to exercise its discretion to hear a moot appeal, the Court should consider whether an adversarial context continues to exist, whether the issues raised by the matter justify the use of scarce judicial resources, and the need for courts to stick to their proper adjudicative role. The Supreme Court recognized that each of these factors may not lead to the same conclusion and that "“[t]he presence of one or two of the factors may be overborne by the absence of the third, and ""vice versa”": Taylor at para. 44, citing Borowski at p. 363.
[11] We are satisfied that an adversarial context continues to exist in this matter. The parties and interveners have filed their memoranda of fact and law, the competing arguments have been carefully and skilfully fleshed out, and it appears that the appeal will be well and fully argued: Borowski, at pp. 358–359. As was the case in Taylor (at para. 52), while the specific dispute underlying this appeal may be moot, the legal questions it raises remain very much alive.
[12] Insofar as the question of judicial economy is concerned, we are satisfied that the circumstances of this case are such as to make it worthwhile to devote scarce judicial resources to resolve it. The case raises important questions as to the justiciability and reviewability of a Prime Minister’s advice to a Governor General to prorogue Parliament, and it appears that the Federal Court’s decision in this matter is the only consideration of these questions by a Canadian court. Appellate guidance on these questions would thus be helpful, and there is a social cost to leaving the issues unresolved.
[13] In addition, even though prorogation is a regular and important feature of our Parliamentary system, prorogation periods are typically of short duration. Indeed, the uncontested evidence before the Federal Court was that the average prorogation period is approximately 40 days. This short time period makes the important legal and constitutional issues raised by this case evasive of appellate review.
[14] This evasiveness of review is illustrated by what happened in this case. The Federal Court rendered its decision on March 6, 2025, and Mark Carney was sworn in as Prime Minister by the Governor General on March 14, 2025. On March 23, 2025, Prime Minister Carney advised the Governor General to dissolve the 44th Parliament, and it was dissolved that same day: Proclamation Dissolving Parliament, March 23, 2025, SI/2025-57, Canada Gazette, Part II, Volume 159, No. 3. The appellants filed their Notice of Appeal with this Court on April 4, 2025.
[15] This Court always endeavours to be responsive to the needs of litigants and will do its best to deal with urgent matters in a timely manner: see, for example, Canada (Commissioner of Competition) v. Rogers Communications Inc., 2023 FCA 16. That said, no amount of speed on the Court’s part could have allowed this matter to be heard before it became moot: it had become moot before the Court was even seized with the appeal.
[16] Finally, without opining in any way as to whether a Prime Minister’s advice to a Governor General with respect to the prorogation of Parliament is reviewable or justiciable, we are nevertheless satisfied that the determination of these issues comes within the accepted role of courts to decide contested legal issues, including those with respect to the division of responsibilities between the branches of government.
[17] Consequently, we are satisfied that this Court should deal with the merits of this appeal, notwithstanding its mootness. The case will be referred to the Office of the Judicial Administrator to schedule a date for the hearing of the appeal, with the costs associated with this hearing to be determined by the panel hearing the appeal. . Naus v. Kennedy
In Naus v. Kennedy (Ont CA, 2025) the Ontario Court of Appeal considered a (second) appeal, this from "an order of the Superior Court of Justice confirming a decision of the Consent and Capacity Board (the “Board”) that he is incapable of consenting to treatment and that he should be subject to a community treatment order requiring him to take antipsychotic medication".
Here the court decides to hear an issue despite it's mootness:[32] The community treatment order is also moot because it has not been in effect since February of 2024. An appeal from the community treatment order will have no practical effect on Mr. Naus’s treatment: Dickey v. Alexander, 2016 ONCA 961, at para. 8; A.N. v. Guimond, 2020 ONSC 6751, at para. 14; Capano v. Geagea, 2017 ONSC 2983, at para. 49; Carty v. Levy, 2015 ONSC 2200, at paras. 44 and 52.
(2) The court should exercise its discretion to decide the appeal from the community treatment order
[33] In order to decide whether to hear a moot appeal, the court is to consider 1) whether there remains an adversarial context, 2) concerns over judicial economy and 3) the court’s adjudicative role: Borowski, at pp. 358-63. The court is to consider the extent to which all three rationales are present. This is not meant to be a mechanical process.
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[35] However, I agree with Mr. Naus that this court should exercise its discretion to hear the appeal from the community treatment order. As mentioned, there remains an adversarial context. In addition, the appeal from the community treatment order raises an important issue regarding how s. 15(1.1) of the Mental Health Act is applied in the context of community treatment orders: specifically, whether successful treatment prior to a current hospitalization is required before the Board can make a community treatment order or whether successful treatment during the hospitalization is sufficient. Notably, it appears that the Board’s own jurisprudence is inconsistent on this issue: see, for example, V.M. (Re), at pp. 12-13, holding that treatment received on a first hospital admission leading up to the hearing was not “previous treatment”, in contrast with L.B. (Re), 2012 CanLII 62547, at p. 14, and H.S. (Re), 2021 CanLII 141803, at p. 9, both holding that “previously” could refer to treatment that occurred during the current hospitalization. In A.P. (Re), 2021 CanLII 24677, at p. 14, the Board registered the inconsistency and noted that “[t]his question has not been definitively settled in a court of law.” This issue is elusive of review because community treatment orders are only valid for a period of six months: s. 33.1(11) of the Mental Health Act. As this case illustrates, it would be exceptional for an appeal to reach this court within that time period.
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