Court of Appeal for Ontario

Date: 2019-02-14 Docket: C65040

Judges: Feldman, Lauwers and Nordheimer JJ.A.

In the Matter of: Derek Halat

An Appeal Under Part XX.1 of the Code

Counsel

Anita Szigeti, amicus curiae

Derek Halat, in person

Philippe Cowle, for the Attorney General

Julie Zamprogna Ballès, for the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London

Heard: January 29, 2019

On appeal from the disposition of the Ontario Review Board dated February 1, 2018.

Reasons for Decision

[1] The appeal before the court is from the disposition of the Ontario Review Board dated February 1, 2018, where the appellant was ordered detained subject to conditions including the ability of the person in charge to allow the appellant to live in the community in supervised accommodation.

[2] For reasons not fully explained, the Board scheduled the appellant's 2019 annual review hearing for January 11, 2019, and proceeded with that hearing, although this appeal was scheduled to be heard on January 29, 2019. We are told that Board-appointed amicus for the appellant at the January 11 review (not Ms. Szigeti) was not aware of this appeal, and therefore did not address with the appellant the issue of seeking an adjournment of the January 11 review until after the appeal of the 2018 disposition.

[3] The Board's disposition was released on January 14, 2019. It again ordered the appellant's detention with conditions. The only changes from the 2018 disposition are: 1) the appellant may now enter the community of Southwestern Ontario, indirectly supervised; and 2) the condition regarding living in the community now states that it is to be in 24-hour supervised accommodation.

[4] Because this appeal had become moot, the disposition under appeal having been superseded by the 2019 disposition, all counsel wrote to the court to alert it to that issue. In response, the court offered to use the time set for the appeal of the 2018 disposition to hear an appeal from the 2019 disposition if counsel were able to provide any additional material they felt was necessary. Unfortunately, counsel were not able to take up the court's offer because the Board had not yet delivered its reasons for the January 14, 2019 disposition.

[5] At the hearing, counsel for the Crown submitted that although the appeal was moot, it would be appropriate for the court to hear the appeal from the 2018 disposition. He said this for two reasons. The first was that the hospital had undertaken to immediately seek a new hearing following the release of this court's decision, so that the effect of hearing the appeal would be to provide the Board with the court's view on the 2018 disposition before it holds the new hearing. The second was that hearing this appeal could obviate the procedural unfairness issue the appellant raised in his notice of appeal of the 2019 disposition: by dealing with this appeal and providing reasons to the Board before it conducts the new hearing that the hospital undertook to request, this court would eliminate the appellant's concern about the Board's 2019 review having proceeded before this appeal.

[6] After hearing full submissions on the mootness issue, the court advised the parties that it would not proceed to hear the moot appeal. We said that we would deliver brief reasons for that decision. These are those reasons.

The Mootness Doctrine

[7] The seminal case from the Supreme Court of Canada on the question of when a court should exercise its discretion to hear a moot case or appeal is Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, where the court mandated a two-step process for the analysis. The first step is to decide whether the case or appeal is moot, i.e. whether there remains a live controversy that affects the rights of the parties. If there is not and the case or appeal is therefore moot, the general rule is that the court will not hear the matter.

[8] However, the court must decide whether it should exercise its discretion to hear and decide the case or appeal in any event, considering three factors: 1) whether the necessary adversarial context remains, which may be provided by collateral consequences of the resolution of the issue between the parties; 2) despite the concern for judicial economy, whether special circumstances justify applying scarce judicial resources to the case because, for example, the case raises an important issue that will always be moot by the time it reaches appeal, or an issue that is a matter of public importance and in the public interest to resolve; 3) the need for the court to be aware of its proper law-making function and the extent to which it may be departing from its traditional role by hearing the case or appeal: Borowski, at pp. 358-63.

Application to This Appeal

[9] In answer to the first stage of the two-step analysis, it is clear that the appeal is moot because the 2018 disposition of the Board no longer governs or applies to the appellant. It is spent and of no further effect. There is therefore no live issue between the parties in relation to that disposition.

[10] The second step is whether the court should hear the moot appeal in any event. Counsel's main argument was that there were still collateral consequences because the appellant remains subject to the Board's jurisdiction and the Board should have the benefit of this court's views on its disposition for use in the future.

[11] We do not accept that submission. To the contrary, because of the continuing jurisdiction of the Board over the appellant, it is important that this court only review dispositions of the Board where it can give a remedy for any reviewable error. These issues may well arise again between these parties for proper disposition on a current record. This court should not provide its opinion "in the air" and without binding effect. Similarly, in response to the submission by amicus counsel for the appellant that it would be useful for this court to rule on the meaning of "supervised accommodation", that is the court's role in the context of an appeal based on a record. It is neither useful nor appropriate for the court to opine on the meaning or parameters of a key tool of the Board on the basis of a record that has been superseded, and to issue a decision without binding effect on the parties.

[12] As the parties have not demonstrated that the Borowski factors provide a basis to depart from the general rule against hearing a moot appeal in these circumstances, the appeal is dismissed. In light of what has transpired, the court is prepared to hear the appellant's appeal from the January 14, 2019 disposition or from any new disposition that the Board may make as soon as possible, and will accommodate counsel to achieve an early hearing date.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.