Today’s decision in Mental Health Centre Penetanguishene v.
[35] The doctrine of mootness is one aspect of a general practice of courts to decline deciding a case that raises only a hypothetical or abstract question: see Borowski v.
[36] The courts enforce this general policy in moot cases. But the general rule is not unyielding. A court may exercise its discretion to depart from its policy or practice by considering two questions:
i. Has the tangible and concrete dispute disappeared, leaving only academic issues?
ii. If the answer to the above question is “yes”, should the court exercise its discretion to hear the case?
The answer to the first question, whether a live controversy exists, determines the issue of mootness. The answer to the second question is only required where mootness has been established: Borowski at p. 353.
[37] Several factors may induce the disappearance of the live controversy. The contentious issues may be of brief duration. The circumstances of the parties may eliminate the tangible nature of a dispute. The governing statute or controlling legal principle may change. An exhaustive list eludes composition: Borowski at p. 358.
[38] An examination of the rationalia underlying the general rule informs the formulation of guidelines for the exercise of discretion in departing from the general rule against hearing and determining issues that are moot inter partes. To the extent that a particular foundation upon which the rule is grounded is absent or its grip is tenuous, the reason for its enforcement vanishes or diminishes: Borowski at p. 358.
[39] One such rationale underlying the rule prohibiting forensic scrutiny of moot issues is that a court’s competence to resolve legal disputes requires an adversarial context. An adversarial context encourages the parties to put their best foot forward. Parties must frame their cases, adduce evidence, and advance available arguments. However, this requirement may also be satisfied where the necessary adversarial relationships survive the end of a live controversy. Collateral consequences of the outcome may provide the essential adversarial context: Borowski at pp. 358-359.
[40] A second important and broad rationale upon which the mootness doctrine is founded is the concern for judicial economy. Judicial resources must be rationed among competing claimants. Live controversies, not academic endeavours, should attract these scarce resources. The academic debate can occur elsewhere.
[41] But judicial economy is a two-way street. Sometimes, in cases that have become moot, a court’s decision will have some practical effect on the rights of the parties, even though it will not have the effect of determining the underlying controversy itself: Borowski at p. 360. The expenditure may also be warranted in cases in which, while the immediate controversy is moot, the circumstances are likely to recur but be of brief duration. The mootness doctrine should not be strictly applied that important questions that might independently evade review go unheard and undetermined by the court: Borowski at p. 360.
[42] The mootness doctrine may also be shunted to the sidelines when the issues raised are of public importance and their resolution is in the public interest. In these cases, what is required is a delicate balancing of the economics of judicial involvement, on the one hand, and the social cost of legal uncertainty, on the other: Borowski at p. 361.
No comments:
Post a Comment