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Mootness - Taylor v. Newfoundland and Labrador (SCC, 2026). Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the Supreme Court of Canada extensively revisits 'mootness' doctrine:(1) Discretion to Hear a Moot Appeal
[42] In Borowski, this Court explained that courts should generally decline to decide a case which raises a merely hypothetical or abstract question. Ordinarily, courts do not pronounce on the law when their decisions will have no practical effect on the rights of the parties. However, they will in exceptional circumstances.
[43] In deciding whether to hear a potentially moot appeal, courts must ask two questions (Borowski, at p. 353). First, is there a continuing live issue between the parties, or has the concrete dispute disappeared such that the issues have become academic? If there is no remaining live issue, the issue is moot. Second, despite the case’s mootness, should the court exercise its residual discretion to hear the appeal?
[44] The “Borowski criteria” guide that discretion. An appellate court should consider: (1) the existence of an adversarial context; (2) judicial economy; and (3) the need to limit courts to their proper adjudicative role. Exercising discretion requires consideration of each rationale in a process that recognizes that they “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” (Borowski, at p. 363; see also R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 39).
[45] All parties recognize this appeal is moot: the authorities eventually permitted Ms. Taylor to enter the province, and by the time this matter came before the Court of Appeal, the Travel Restrictions were no longer in effect. The Court of Appeal declined to exercise its discretion to hear the appeal.
[46] A discretionary judicial decision is owed deference on appeal (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 76-77). An appellate court may interfere, however, when a lower court errs in principle, makes a palpable and overriding factual error, acts arbitrarily, or reaches a conclusion that is clearly wrong (Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, at para. 32). With respect, the Court of Appeal erred in assessing the relevant considerations.
[47] Even had we found no error in the Court of Appeal’s exercise of discretion, this Court has a broad power under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S‐26, to hear a moot appeal and conduct its own analysis of the merits (see, by analogy, MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 S.C.R. 460, at p. 508; Roberge v. Bolduc, 1991 CanLII 83 (SCC), [1991] 1 S.C.R. 374, at pp. 392-93; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 21).
[48] The following analysis shows how the Court of Appeal erred in its approach to this matter and explains why we conclude the appeal before this Court meets all three of the Borowski criteria.
(2) Criteria to Hear a Moot Appeal
(a) The Existence of an Adversarial Context
[49] A court’s competence to resolve legal disputes is rooted in the adversarial system (Borowski, at p. 358). Our system of justice presumes that the best judicial outcomes emerge when courts hear contrasting points of view from parties who “present the evidence and relevant arguments fully and skillfully” (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 29; see also L. M. Sossin and G. Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada (3rd ed. 2024), at pp. 270-71). In the mootness context, this rationale is fulfilled if “despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail” (Borowski, at p. 359).
[50] In considering this factor, the Court of Appeal stated that the “adversarial context requires more than parties willing to present opposing positions” (para. 20). It was concerned that the parties disagreed on which questions they wanted decided and, “[m]ore importantly”, that the parties did not raise all the possible sources for a right to interprovincial travel (para. 24). Thus, according to the Court of Appeal, answering the questions that the parties wished to argue would not necessarily resolve the “real world questions” as to whether such a right exists and where that right is found (para. 24; see also paras. 19-23 and 25).
[51] With respect, the Court of Appeal erred in concluding that it was not equipped with a sufficient adversarial context to resolve the appeal. A sufficient adversarial context does not require complete overlap on the issues raised by the parties, nor does it demand that the parties provide all possible answers to a legal question. Rather, it will exist where the issues were “well and fully argued by parties who have a stake in the outcome” (Borowski, at pp. 358-59).
[52] The sophisticated parties to this appeal have vigorously presented considered and opposing arguments on the interpretation of s. 6 of the Charter. While the specific dispute between Ms. Taylor and the province may be moot, the legal question of whether the Charter protects a right to interprovincial travel is very much alive. The parties also differ in their proposed approach to s. 1 and the conclusion that should be reached.
[53] In any event, we are not persuaded that the parties “do not agree on the questions that they want this Court to decide” (C.A. reasons, at para. 23). With respect, there was unanimity over the questions asked of the court, and all parties want to have these questions answered. It follows that this criterion favours hearing the moot appeal.
(b) Judicial Economy
[54] Borowski noted the unfortunate reality that there is a need to ration scarce judicial resources among competing claims. Routinely adjudicating moot appeals could divert resources from proceedings that have an immediate, practical impact. Even so, there will be special circumstances where the nature of a moot case makes it worthwhile to apply the necessary resources to resolve it (p. 360).
[55] The concern for conserving judicial resources is partially answered if the court’s decision will have some practical effect on the rights of the parties, even if the precise controversy which gave rise to the action no longer exists. Another instance is when the legal issue in dispute is recurring in nature, but of brief duration: “In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly” (Borowski at p. 360; see also R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 2; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 17; R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at p. 136).
[56] The significance of the legal issue at stake is also a consideration when assessing whether a court should hear a moot appeal (G. J. Kennedy and L. Sossin, “Justiciability, Access to Justice and the Development of Constitutional Law in Canada” (2017), 45 Fed. L. Rev. 707, at p. 717). In Reference re Objection by Quebec to a Resolution to amend the Constitution, 1982 CanLII 219 (SCC), [1982] 2 S.C.R. 793, the question of the constitutionality of the patriation of the Constitution was rendered moot by its occurrence. In exercising its discretion to hear the appeal, this Court considered the importance of the constitutional issue and whether “it appears desirable that the constitutional question be answered in order to dispel any doubt over it” (p. 806).
[57] However, the mere presence of an issue of national importance, or the fact alone that a case is raising a point likely to recur, is not a reason for hearing a moot appeal — there must be “the additional ingredient of social cost in leaving the matter undecided” (Borowski, at p. 362).
[58] The Court of Appeal in this case was not convinced that it could provide helpful guidance on what travel restriction might be acceptable in a future public health emergency. Several other courts of appeal have considered challenges to emergency restrictions enacted to respond to COVID-19, many of which were moot by the time the appeal was heard. Courts have divided on whether to hear the moot appeals (see, e.g., Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, 99 B.C.L.R. (6th) 89; Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56, 484 D.L.R. (4th) 591; Harjee v. Ontario, 2023 ONCA 716; and Peckford v. Canada (Attorney General), 2023 FCA 219).
[59] In our view, judicial resources are well-spent in deciding this appeal. This is the first occasion where our Court has heard a constitutional challenge to an emergency measure adopted during COVID-19. It involves the application of a Charter right to an unprecedented provincial travel restriction. These are legal issues of manifest public importance. There is also a clear social cost in leaving the question of the constitutionality of state limitations on mobility unconsidered. As the Court of Appeal acknowledged, “the parties are perhaps correct in suggesting that the scientific evidence in the record suggests that another pandemic will happen in the future” (para. 30).
[60] Further, this appeal relates to an issue of a recurring but brief nature, that may otherwise evade review. Emergency public health measures are designed to be temporary. It is to be hoped that medical threats like a pandemic will be time limited. Questions around the legality of any resulting measures may become moot quickly, while a constitutional challenge can take years to reach appellate courts. We agree with the appellants that the transitory nature of these restrictions should not immunize them from judicial review.
(c) The Need to Limit Courts to Their Proper Adjudicative Role
[61] The last rationale from Borowski is grounded in Canada’s separation of powers, underscoring how courts must be sensitive to their adjudicative role and avoid intruding into the role of the legislative branch (p. 362).
[62] The Court of Appeal found that exercising its discretion to hear a moot appeal when the law giving rise to the litigation no longer exists would be outside the traditional role of the court. On this point, we note that while the Travel Restrictions were repealed, the CMOH still holds power under s. 28(1)(h) of the PHPPA to restrict travel into the province. It is in the public interest to address the merits of this case to settle the state of the law. This is not a request for an advisory opinion in the abstract or a discussion of Charter rights at large. Instead, this Court’s interpretation of s. 6 of the Charter and the rights it protects will have broader implications that immediately impact the parties and society. The courts have a duty to answer such questions (R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at para. 84; L. Sossin, “The Unfinished Project of Roncarelli v. Duplessis: Justiciability, Discretion and the Limits of the Rule of Law” (2010), 55 McGill L.J. 661). Determining whether the Travel Restrictions were constitutional is a judicial function that lies at the core of the Court’s jurisdiction and does not inappropriately encroach on the role of the legislature.
[63] This appeal meets the Borowski criteria for hearing a moot appeal. We now turn to the merits of the appeal.
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