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Appellate Litigation


What happens to a lawsuit or an appeal when the issues in dispute are superseded or resolved by extraneous events? The proceeding becomes “moot” as a result of losing its practical significance. The legal outcome has been decided not by the court in question but by the incidental happenings. As a result, the court must decide whether to proceed or dismiss the legal proceeding.

Legal Definition

The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question.  An appeal [or legal proceeding] is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties.  Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. 

The default position is a dismissal unless the court exercises its discretion to proceed. On what grounds then can a court exercise its discretion to proceed?

Leading Case

The issue came before the Supreme Court of Canada (SCC) in Borowski v. Canada (Attorney General). The approach set out by the SCC involved a two-step analysis. The first step is to decide whether the requisite tangible and concrete dispute has disappeared, rendering the issues academic. If the conflict has become academic, the second stage of the exercise is for the court to consider whether it should exercise its discretion to decide the case on its merits. The guide for doing so is the underlying rationale of the mootness doctrine itself.

Mootness Doctrine

The rationale for the policy is the following:

  1. The first rationale for the policy concerning mootness in that a court’s competence to resolve legal disputes is rooted in the adversary system.  A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system; 
  2. The second is based on the concern for judicial economy, which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. 
  3. The third underlying rationale of the mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and demonstrate a measure of awareness of the judiciary’s role in our political framework. 

The Court, in exercising its discretion in a moot appeal, should consider the extent to which each of these three basic factors is present.  The process is not mechanical.  The principles may not all support the same conclusion, and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

In Borowski, the appeal was dismissed. The SCC dealt with the matter again in Doucet-Boudreau v. Nova Scotia (Minister of Education) and stated:

The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski)  In our view, the instant appeal is moot.  The parties attended several reporting hearings, presented evidence and allowed the deponents of affidavits to be cross-examined. The desired effect has been achieved: the schools at issue have been built.  Restoring the validity of the trial judge’s order would have no practical effect for the litigants in this case, and no further reporting sessions are necessary.

Here the SCC  narrowly held to proceed with the appeal despite the mootness finding. This was done to deal with the powers of provincial superior courts in the future.

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