COURT OF APPEAL FOR ONTARIO

CITATION: Muller v. Bluewater Recycling Association, 2013 ONCA 154

DATE: 20130315

DOCKET: C56093

Doherty, MacPherson and Watt JJ.A.

Michelle Lynn Muller

Proposed Plaintiff (Respondent)

and

Bluewater Recycling Association and John Bonnett

Proposed Defendants

and

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police)

Non-Party (Appellant)

Eunice Machado and Judith Parker, for the non-party (appellant), Her Majesty the Queen in Right of Ontario (Ontario Provincial Police)

Cynthia Kuehl and Alfonso Campos Reales, for the proposed plaintiff (respondent), Muller

Heard and released orally: March 11, 2013

On appeal from the order of Justice A.D. Grace of the Superior Court of Justice, dated September 6, 2012.

ENDORSEMENT

[1] This is an appeal from an order directing the appellant to turn certain documents over to the respondent. All of the documents sought by the respondent were produced to her before the appeal was launched. The appellant does not seek the return of any of the documents.

[2] There is no longer a legal controversy between the appellant and the respondent. The appeal is moot. This is not a case like Forget, where the judgment under appeal had struck down legislation of general application. In those cases, a legal controversy as to the application of the law remains even if its application is no longer relevant to the particular respondent.

[3] The appellant’s submission that there is a “live issue” confuses the requirement of a continuing lis between the parties and a genuine controversy on a point of law raised on the appeal. The former is relevant to mootness, but the latter is relevant to whether the court should, in the exercise of its discretion, hear the appeal despite its mootness.

[4] This is not a case in which we should exercise our discretion to hear a moot appeal. The issue is not one which, in our view, is unlikely to be amenable to appellate review in the normal course. Nor, given the discretionary nature of the order under appeal, is it likely that this court could avoid any significant future litigation by addressing the merits of the appeal. Appeals in these matters will, it seems inevitably, turn on their particular facts.

[5] The relevant law at play on this appeal is relatively clear. The impugned order reflects the exercise of an acknowledged discretion based on the specific circumstances of this case. We are not satisfied that our review of that order, despite the mootness of the appeal, is necessary either for the proper development of the jurisprudence or to avoid a flood of requests to the appellant for documents arising out of accident investigations. There is no evidence that any such flood has developed.

[6] In the normal course, courts do not hear moot matters. The appellant has not made out a case for departing from the normal course and hearing the appeal despite the mootness. The appeal is dismissed as moot. We, of course, intend no comment on the merits of the judgment under appeal.

[7] Costs of the appeal are awarded to the respondent in the amount of $6,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“David Watt J.A.”