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Mootness - Procedure. Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of two JRs, one which "challenged the validity of a report resulting from a regional assessment of offshore oil and gas exploratory drilling, conducted under the Impact Assessment Act" and the other to "quash a regulation made under the Act that exempts certain exploratory drilling activities from a number of impact assessment requirements".
Here the court sets out mootness procedures:[2] After our Court heard this appeal, the Supreme Court of Canada released its decision on the constitutionality of the Act: Reference re Impact Assessment Act, 2023 SCC 23 [IAA Reference]. The Supreme Court opined that the federal impact assessment scheme, consisting of the Act and its accompanying Physical Activities Regulations, S.O.R./2019-285 (Activities Regs), is unconstitutional in part.
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B. IAA Reference’s Effect on the Remaining Issues’ Mootness
(1) The Doctrine of Mootness
[63] Under the doctrine of mootness, courts may decline to hear a case when its decision will have no practical effects on the rights of the parties. Courts may nevertheless elect to hear a moot case if the circumstances warrant: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at 353 [Borowski]. Thus, the doctrine of mootness involves two steps.
[64] In the first step, a court decides whether the case is moot. A case is moot when no live controversy affects the rights of the parties: Borowski at 353–356; Peckford v. Canada (Attorney General), 2023 FCA 219 at para. 9 [Peckford].
[65] In the second step of the mootness analysis, the court decides whether to exercise its discretion to hear the case despite mootness. In Borowski, the Supreme Court formulated three factors to guide courts’ exercise of discretion:. The presence of an adversarial context;
. The concern for judicial economy; and
. The need for the court to be sensitive to its role as the adjudicative branch in our political framework.
(Borowski at 358–363; Peckford at para. 10) . Right to Life Association of Toronto v. Canada (Attorney General)
In Right to Life Association of Toronto v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered when mootness may be raised by a party:[8] The appellants submit that the Court should not entertain the respondent’s motion because the respondent could have raised mootness earlier and should not be permitted to raise this "“new issue”" for the first time on appeal. I disagree. While the desirability of addressing mootness at an early stage is obvious, mootness may be raised at any time. It may be raised by the Court if the parties do not raise it: Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67, [2021] F.C.J. No 286 (Q.L.) [CUPE]; Hakizimana v. Canada (Public Safety and Emergency Preparedness), 2022 FCA 33, 87 Imm. L.R. (4th) 175 [Hakizimana]. . Roberts (Re)
In Roberts (Re) (Ont CA, 2022) the Court of Appeal, hearing an NCR (not criminally responsible) case, noted that the Court of Appeal did not generally decide moot cases:[3] As a general principle, this court does not decide moot cases: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Abernethy (Re), 2021 ONCA 509, 2021 CarswellOnt 10355, at para. 4; Halat (Re), 2019 ONCA 112, 2019 CarswellOnt 1885, at paras. 7-9. This principle applies especially to Review Board cases. As this court noted in Halat, at para. 11, “because of the continuing jurisdiction of the Board over the appellant, it is important that this court only review dispositions of the Board where it can give a remedy for any reviewable error.” . Ontario (Provincial Police) v. Mosher
In Ontario (Provincial Police) v. Mosher (Ont CA, 2015) the Court of Appeal sets out the court procedure when a claim of mootness occurs:[30] The approach taken by a court confronted with a claim of mootness involves two steps. The first step requires a determination whether the essential tangible and concrete dispute – the lis inter partes – has disappeared and the issues have become academic. If the response at this first step is affirmative, the second step requires the court to decide whether it should exercise its discretion to hear the case: Borowski, at p. 353; Mental Health Centre, at para. 36.
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