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Mootness - Test. R (H.C.) v. Ontario Special Education Tribunal
In R (H.C.) v. Ontario Special Education Tribunal (Ont CA, 2026) the Ontario Court of Appeal considered the Borowski mootness test:[17] The test for mootness is set out in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342. The first prong is to determine whether there is any live controversy among the parties. This reflects the principle that courts do not adjudicate abstract questions that fail to resolve an actual dispute. Subsequent events may affect the relationship of the parties such that the question before the appeal court is hypothetical and no longer affects their rights.
[18] The second step is to determine whether this court should exercise its discretion to hear the issue notwithstanding its mootness. The exercise of the court’s discretion is guided by consideration of: (i) whether the issues can be 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: Borowski, at pp. 358-63. See also Dagg v. Cameron Estate, 2017 ONCA 366, 136 O.R. (3d) 1, at para. 32. . McLaughlin v. 369967 Ontario Limited
In McLaughlin v. 369967 Ontario Limited (Ont Div Ct, 2025) the Ontario Divisional Court sets out the standard 'mootness' test:[13] There are times when an appeal court will exercise its discretion and hear an appeal that is moot. The test was set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342.
[14] The two-step analysis in Borowski is as follows:a. Does there remain a live controversy in the case?
b. If not, should the court exercise its discretion to hear the case? The three underlying rationales to consider in determining whether to exercise discretion are:
i. the existence of a truly adversarial context;
ii. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;
iii. the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative-type pronouncements.
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