Mootness

The doctrine of mootness provides that a court may decline to decide a case which raises merely a hypothetical or abstract question.  It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.  In other words, if the decision of the court will have no practical effect on the rights of the parties, then the court will decline to decide the case.  This essential ingredient must be present not only when the action or proceeding is commenced, but also at the time of the trial or hearing.

As the Supreme Court of Canada (the “Supreme Court“) noted in Borowski v. Canada (Attorney General) if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.  In Borowski, the Supreme Court articulated a two-step analysis to determining whether a court should decline to hear a case because of mootness.  First, a court must determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.  Second, if the response to the first question is affirmative, then the court must decide whether it should exercise its discretion to nonetheless hear the case.  Relevant factors include whether the dispute is rooted in the adversarial system, whether hearing the case would be judicially economical, the need for courts to be sensitive to their role, and the effectiveness of judicial intervention.

The issue of mootness recently arose in the immigration context in Grapendaal v. Canada.  There, an immigration officer denied a Russian lady a temporary resident visa to visit Canada.  The Russian lady had sought to visit Canada primarily for the purpose of watching an international ice hockey tournament, as well as to visit Canada.  She applied for judicial review of the decision to deny her a visa.  Prior to the hearing, the Department of Justice (the “DOJ“) filed a motion to strike the matter on the grounds that the issue was moot.  The DOJ argued that because the hockey tournament was over, then the primary purpose of the applicant’s desire to visit Canada no longer existed. Accordingly, they argued that there was no longer a live controversy.

Justice Mosley disagreed.  He found that there continued to be a live issue between the parties as the applicant still wished to visit Canada and the dispute was clearly adversarial. Furthermore, if the case was dismissed for mootness without a determination of the merits of the case, then it was likely that the applicant would apply for a new visa, and that the whole issue would arise again.  Finally, Justice Mosley found that the court would not be extending its jurisdiction beyond its normal scope in hearing the case because the Federal Court’s work is dedicated to reviewing the decisions of immigration officers.  Justice Shore in Shakeri v. Canada (Citizenship and Immigration) reached a similar conclusion.

Another arguably more contentious issue of whether the doctrine of mootness applies is whether a failed refugee claimant’s application for judicial review becomes moot where the Canada Border Services Agency removes the failed refugee claimant.  Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that a refugee claimant must be outside of their country of origin.  IRPA s. 97 further provides that an application for protected person status can only be made inside Canada.  As such, a plain reading of the legislation would suggest that a judicial review of a failed refugee claimant becomes moot if the refugee claimant is removed.  There is something unsettling about this, however, and as such in Molnar v. Canada (Citizenship and Immigration), Justice Fothergill certified the following question of general importance:

Is an application for judicial review of a decision of the Refugee Protection Division moot where the individual who is the subject of the decision has involuntarily returned to his or her country of nationality, and, if yes, should the Court normally refuse to exercise its discretion to hear it?

The answer shall be posted here when the Federal Court of Appeal publishes its decision of the matter.


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