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Mootness - Where Issue Heard. International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal considered a mootness issue, here where it heard it anyway:IV. Mootness
[58] With the foregoing background in mind, I turn now to consider the first set of questions that arise in this application, namely, the issue of whether the application is moot and, if so, whether this Court should nonetheless exercise its discretion to decide the application as both parties have urged us to do.
[59] Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 1989 CanLII 123 [Borowski] is the seminal case governing mootness. There, the Supreme Court of Canada held that a case is moot if, subsequent to the commencement of the proceeding, events occur such that there is no longer a live controversy between the parties. In Borowski, the Supreme Court held that the substratum of the appeal in that case had disappeared because the provision the appellant was challenging had been struck down in a previous case.
[60] In the present case, there is likewise no longer a live controversy between the parties because the strike that gave rise to the Order has ended and the parties have entered into a new collective agreement. Like in Borowski, the substratum of the litigation has disappeared in this application because there is no longer any possibility of an ongoing strike.
[61] A court has discretion to hear an otherwise moot case. In Borowski, the Supreme Court of Canada held that factors relevant to the exercise of such discretion include: the ongoing presence of an adversarial context between the parties; consideration of whether deciding the case accords with the proper role of the court; and any special circumstances that warrant hearing of an otherwise moot case. The Supreme Court noted that special circumstances would include where : (1) the case will have a practical effect on the rights of the parties; (2) the case raises reoccurring issues that are dealt with quickly and therefore seldom have an opportunity for review; or (3) hearing the case is in the public interest or raises an issue of public importance: Borowski at 358–62. . Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation
In Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against two decisions against a First Nation in a residential schools system class action proceeding, the first a motion to intervene and the second to be added as a class to the action.
Here the court, while finding the appeal moot (and thus dismissing the appeal), heard it regardless as salutory:Whether the appeal is moot
[34] The first question to be determined is whether the appeal is moot since the settlement approval hearing has taken place, the settlement has been approved, the approval order is final and has not been appealed, and the settlement has been implemented.
[35] A matter is moot where there is no longer a live controversy which affects the rights of the parties (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at 353 [Borowski]). That is the case here. The settlement funds have been settled in the trust and the settlement approval order has not been stayed. The Attorney General has no further role in the proceeding.
[36] There are, however, a number of reasons why this Court should exercise its discretion and entertain the appeal. Borowski provides that a court, in determining whether to hear a case that is moot, can consider the existence of an adversarial context, the concern for the judicial economy and the role of the court as an adjudicative branch in the political framework (at 358-363). Here, there is a robust adversarial relationship between the parties and the issues have been fully argued before us. Judicial economy is not in play, as the mootness argument was essentially woven into the fresh evidence motion and the substantive questions on appeal. These factors aside, it is in the interests of justice that the Court consider the substantive issue. As the circumstances here demonstrate, there is value in giving appellate guidance to judges considering whether to approve class action settlements.
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Conclusion
[64] As noted, the settlement funds have been transferred to the trust and no interim relief was sought to stay the settlement approval decision or the implementation of the settlement pending Salt River’s appeal. Apart from the Federal Court’s limited continuing supervisory jurisdiction over its administration, the action is at an end and the judge is functus. Despite the errors identified, there is no executory order that this Court can issue which would rectify the judgment of the Federal Court and I would therefore dismiss the appeal without costs. La Presse inc. v. Quebec
In La Presse inc. v. Quebec (SCC, 2023) the Supreme Court of Canada considered the (temporary) pre-jury-empanelment application of the CCC s.648 prohibition on publication of any criminal proceedings conducted in the absence of a jury (the 'automatic publication ban'). In these quotes the court applies basic mootness doctrine to the case before it:[17] Both appeals are also moot because, at this point, neither presents a live controversy. The trials have concluded and s. 648(1) no longer prohibits the publication of any information from them. This Court was aware of the possibility of mootness when it granted leave to appeal.
[18] The considerations in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, suggest that this Court should exercise its discretion to hear and decide the appeals, even though they are moot (see also Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 16-22). The parties have provided a clear adversarial context, presenting their arguments capably and with dedication. The operation of s. 648(1) results in automatic publication bans that are often of brief duration relative to the typical timeline of an appeal to this Court, and the issue of its proper interpretation is one that is “capable of repetition, yet evasive of review” (Borowski, at p. 364). Given the judicial division on this issue across the country without the possibility of appellate guidance other than from this Court, the concern for judicial economy justifies resolving the issue, especially considering the importance of the rights and interests in play. Lastly, resolution of this issue calls for straightforward statutory interpretation, a task well within the institutional competence of the Court. . Société Radio-Canada v. Canada (Attorney General)
In Société Radio-Canada v. (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal (on consent) from a CRTC ruling which found that the SRC (the French counterpart of the CBC) had used offensive language, being the racist 'N'-word. The appeal ground was "that the CRTC exceeded its jurisdiction and failed to take into account the applicable legal framework as well as the SRC’s freedom of expression as guaranteed by the Charter" [para 19]. In these quotes the court allows an important Charter s.2(b) issue to be raised despite it's mootness:Are these issues moot?
[39] It is appropriate to first recall that an appellate court does not usually address issues that have become moot. In this case, although the SRC has put in place the four measures imposed by the decision under appeal, neither the amicus nor the parties ask that the motion brought by the Attorney General be dismissed on this ground, presumably because they share the view that there remains a live controversy between the parties or that the Court should exercise its discretion to dispose of the motion despite its mootness in light of the importance of the issues (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 [Borowski], at 353; Right to Life Association of Toronto v. Canada (Attorney General), 2022 FCA 220, para. 8).
[40] I agree. Setting aside the decision would have a practical effect on the SRC’s rights since it would do away with the ongoing requirement flowing from the fourth measure imposed by the CRTC (see para. 14 above). In any event, the jurisdictional and constitutional issues raised by the Attorney General are sufficiently important to warrant this Court’s involvement even if they were found to be moot (Borowski at 358–62; Amgen Canada Inc. v. Apotex Inc., 2016 FCA 196, 487 N.R. 202, para. 16). . McCotter v. Canada (Attorney General)
In McCotter v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR dismissal for mootness. In these quotes the court considers and assesses the facts of the case regarding the mootness test:[8] In deciding whether to exercise discretion to hear a case that is moot, a court should consider the factors discussed by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at 358-363 (Borowski). The factors are (i) whether an adversarial context remains, (ii) the concern for judicial economy, and (iii) respect for the proper law-making function of the Court. Of course, for the purpose of the present motion for an extension of time, the focus is on whether Mr. McCotter has demonstrated merit to his argument that the Federal Court should not have dismissed his judicial review application. The threshold for “some merit” is low.
[9] I accept that the subsequent PBC decision rendered the underlying judicial review application moot in that it eliminated the live controversy between the parties. However, considering the factors in Borowski, there is a genuine possibility that a court might exercise its jurisdiction to hear the application. In my view, Mr. McCotter deserves the opportunity to argue that the Federal Court erred in refusing to exercise its discretion in this regard.
[10] There clearly remains an adversarial context between the parties. Mr. McCotter continues to be denied parole and he remains incarcerated. He come before this Court because he seeks his liberty.
[11] With regard to judicial economy, it is relevant to consider (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. Many of the issues that Mr. McCotter seeks to raise relate not only to the impugned January 20, 2021 PBC decision, but also to other PBC decisions involving Mr. McCotter. Accordingly, it appears that a decision by the Federal Court could have some practical effect on Mr. McCotter’s rights. In addition, given how this matter has come to this Court, the issues in dispute may be of a recurring nature but brief duration, and evasive of review. It is difficult at this stage to determine the public importance of resolving the debate between the parties, but the factor of judicial economy does not appear to be an obstacle to the exercise of discretion to hear the underlying judicial review application despite its mootness.
[12] The final of the factors identified in Borowski, respect for the proper law-making function of the Court, likewise does not appear to be an obstacle to the exercise of discretion.
[13] Based on the low threshold applicable to the question of merit on a motion for an extension of time, I accept that Mr. McCotter has met his burden here. . Kilian v. CPSO
In Kilian v. CPSO (Div Court, 2023) the Divisional Court considered an appeal of a motion to set aside a stay in a JR which had already been determined, and was thus moot. The moving party argued that a mootness exception applied:[28] The CPSO advances the view that the stay of the Applications Judge is spent because the judicial review application has been determined. However, the CPSO argues that the Court should still hear the appeal of the stay because the test in Borowski v. Canada 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 has been met.
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[31] If the dispute between the parties has disappeared, then a reviewing Court still has the discretion to hear the appeal. As described in Dagg v. Cameron Estate 2017 ONCA 366, (2017) 136 O.R. (3d) 1 at para 32, the exercise of that discretion is guided by the three rationales that underpin the mootness doctrine:a) Whether the issues can be well and fully argued by parties who have a stake in the outcome;
b) The concern for judicial economy; and,
c) 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. [32] The first factor is easily disposed of. Both parties were fully represented on the hearing of the appeal, and both parties vigorously contested the merits of the appeal.
[33] This brings me to the second factor, judicial economy. The question of whether a stay of a section 87 application should be granted while a judicial review application is pending is likely to come up again and is going to be evasive of review. I reach this conclusion because, as this case demonstrates, it is likely that any related judicial review application concerning an ongoing investigation will be disposed of by the Divisional Court before any issues in respect of a section 87 application can make their way to this Court. The process for appealing this type of order (unlike the judicial review application) requires a leave to appeal application to the Divisional Court. It is the same type of costly multi-stage appeal process as existed in Dagg. This is a concern that supports this Court considering the issue even if it is moot.
[34] I also note that there is a dispute between the parties as to whether the stay is spent. The fact that the parties cannot agree on whether the stay is spent is another good reason to consider the issue when the question of judicial economy is considered.
[35] Finally, as was the case in Dagg, we are not being asked to decide an abstract question and thereby intrude into the legislative sphere. Instead, we are being asked to decide a concrete question about when and under what circumstances the Courts should exercise their powers to temporarily stay a proceeding.
[36] For all of these reasons, I am of the view that the appeal should be determined on its merits even if it is moot. . Hummel Properties Inc. v. Niagara-on-the-Lake (Town) [repealed law, but still relevant to additional part of case]
In Hummel Properties Inc. v. Niagara-on-the-Lake (Town) (Ont CA, 2022) the Court of Appeal considered a Municipal Act, 2001 s.273 application to quash a interim control by-law for illegality. One issue was whether the challenged by-law, having been since repealed, rendered the application moot:(1) Was the legality of the interim control by-laws a moot issue because the challenged by-laws had been repealed?
[13] The application judge took the position that the legality issues were moot because the challenged by-laws had been repealed. He nonetheless addressed the issues in some measure, albeit inadequately, perhaps in view of his mootness ruling. The application judge erred in this mootness ruling. The application continued to have relevance to the appellant’s outstanding civil claim for damages, like the situations in Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.), at paras. 3-4, TRG-KFH (Lakeside) Inc. v Muskoka Lakes (Township), 2019 ONCA 443, 89 M.P.L.R. (5th) 181, at paras. 18-23.
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