Death of an appellant and mootness

Simon Fraser University v. Noble, 2011 BCCA 334 deals with the death of a party to litigation and mootness.  Professor David Noble was involved in freedom of information litigation with Simon Fraser.  He had appealed a decision against production to the British Columbia Court of Appeal.  While the appeal was pending Professor Noble died; an application was brought to substitute others form Professor Noble so the legal issue could be resolved. The Court held that was not appropriate and the matter was moot:

 

[1]               These appeals arise from a request made by the late David Noble, pursuant to ss. 4 and 5 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, [FIPPA], for copies of documents said to be in the custody or under the control of Simon Fraser University (“SFU”).  A delegate of the Information and Privacy Commissioner held that those documents are in the control of SFU, but her decision was set aside by a judge of the Supreme Court of British Columbia on judicial review.  Two appeals were taken from the judge’s order.  Professor Noble died prior to the hearing of those appeals and, as a result, applications were brought to substitute two persons to take his place as an appellant.  However, this Court dismissed those applications and the appeals as moot, all with reasons to follow.  As SFU did not seek costs of the appeals, this Court made no order as to costs.

…

 

[16]           It is clear from R. v. Smith, 2004 SCC 14 (CanLII), 2004 SCC 14, [2004] 1 S.C.R. 385, that when an appeal has been rendered moot by the death of the appellant, an appellate court has the discretion to substitute a “live” appellant and resolve the matters in dispute.  However, as stated by Mr. Justice Binnie (in para. 4):

 

[T]he discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.

 

[17]           In discussing the approach an appellate court should take in deciding to substitute a “live” appellant and carry on with an appeal, Binnie J. stated:

 

[50]      In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed.  That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive.  Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:

 

1.   whether the appeal will proceed in a proper adversarial context;

 

2.   the strength of the grounds of the appeal;

 

3.   whether there are special circumstances that transcend the death of the individual appellant/respondent, including:

 

(a)  a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;

 

(b)  a systemic issue related to the administration of justice;

 

(c)  collateral consequences to the family of the deceased or to other interested persons or to the public;

 

4.   whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;

 

5.   whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.

 

[51]      What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.

 

[18]           In British Columbia (Securities Commission) v. Eilers, 2010 BCCA 134 (CanLII), 2010 BCCA 134, 317 D.L.R. (4th) 407, this Court declined to allow the husband of a deceased appellant to carry on with her appeal from a finding by the British Columbia Securities Commission that she had violated the Securities Act, R.S.B.C. 1985, c. 418.  In reaching that conclusion, Mr. Justice Chiasson stated:

 

[35]      The Supreme Court of Canada has made it very clear that moot appeals should be continued only in “rare and exceptional” circumstances.  In Smith the Court was alive to the desire of the deceased’s family to clear the deceased’s name.  This must be true in many cases like the present, but more is required.  There must be evidence of some effect on the estate of the deceased or on others.  That is lacking in this case.