Reasons for Judgment

[1] This is an application for judicial review asking the Court to quash a decision of a delegate of the Chair of the Ontario Parole Board made pursuant to s. 46(2)(a) of Ontario Regulation 778, R.R.O. 1990, Reg. 778, under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 ("MCSA"). In that decision, the delegate refused to order a new hearing of the applicant's application for a temporary absence permit that had been dismissed by the Board.

[2] The applicant is serving a sentence of imprisonment for a period of 18 months for possession for the purpose of trafficking, theft under $5000, uttering threats, failing to comply with a recognizance and careless driving. Her sentence will expire on March 15, 2022. Her application for a temporary absence permit was heard and dismissed on December 3, 2020, for written reasons dated December 7, 2021. Her request for a new hearing was dismissed in a decision dated December 29, 2020.

[3] At the outset of the hearing, we were advised that in a decision of the Parole Board dated March 9, 2021, the Board granted parole to the applicant as of March 23, 2021. As a result, counsel for the respondent invited us to decline to hear the application because it is moot. After hearing argument on this issue, the panel advised counsel that the application would be dismissed as moot with reasons to follow. These are the reasons.

[4] In Borowski v Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court explained that the doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case that raises a merely hypothetical or abstract question. This principle applies when the decision of the court will not resolve a controversy that affects or might affect the rights of the parties. In this case, while the applicant will remain incarcerated for another 13 days before she is released, from a practical perspective success on this application will have no value to her. She cannot benefit from an order of this court quashing the decision of the Chair's delegate refusing to order a new hearing of the applicant's application for a temporary absence permit. A live controversy no longer exists that affects the rights of the applicant or the respondent. Counsel for the applicant and the respondent agree that this application is moot. But that is not the end of the matter. Despite the absence of a live controversy, a court may elect to hear and address a moot issue if the circumstances warrant it.

[5] The onus is on the applicant to satisfy the Court that this matter should proceed despite its mootness. In deciding whether this court should exercise its discretion to hear this matter, we must consider three factors:

(1) there must be an "adversarial context" within which the parties have a full stake in the outcome;

(2) the Court must be mindful of judicial economy. The special circumstances of the case, typically that the case raises an important question of a recurring nature but of brief duration making it elusive of review, or a matter of public importance, the resolution of which is in the public interest; and

(3) the Court must maintain an awareness of its proper law-making function and avoid intruding into the role of the legislative branch.

[6] In this case, it is uncontroversial that the adversarial context has not changed, and that there is no risk of our intruding into the role of the legislative branch. The only one of the three factors that is in dispute is judicial economy: does this case raise an important question that is elusive of review? If it raises an important question, there is no doubt that it is elusive of review. But does it raise an important question? I turn next to that issue.

[7] In determining whether the Board should release an inmate on a temporary absence permit, it must be guided by several legislative commands, including the following.

[8] Section 27(1) of the Ministry of Correctional Services Act permits the Board to grant a temporary absence permit where, in the opinion of the Board, it is necessary or desirable that an inmate be temporarily absent from a correctional institution for medical or humanitarian reasons or to assist the inmate in his or her rehabilitation.

[9] Section 36(2) of Ontario Regulation 778 provides that every temporary absence granted to an inmate is a privilege conferred upon the inmate for a specific purpose.

[10] Section 100.1 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, provides that the protection of society is the paramount consideration for provincial appeal boards in the determination of all cases.

[11] In this case, the applicant proposes to argue that the decisions of the Board and the Chair's delegate were unreasonable, in part, because they erred in their application of these provisions. The errors that they are alleged to have made in their application of these provisions in this particular case raise no important question. But the applicant argues that the Board needs guidance on the right framework to assess temporary absence cases having regard to these provisions and asks us to adopt his formulation of that framework.

[12] I am far from convinced that the reasons of the Board in this case demonstrate that the Board is in need of guidance, but since we have not heard argument, I will say no more about it. The real difficulty with the applicant's position is that it misconceives the Court's role on judicial review.

[13] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court reminds us of the principle of judicial restraint and the respect we owe to the distinct role of administrative decision makers. Boards like the Ontario Parole Board develop expertise and institutional experience that we do not possess. While we are not to "rubber-stamp" their decisions, we must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect.

[14] Having regard to those principles, it is our role on judicial review of a decision of the Ontario Parole Board to review the decision on the standard of reasonableness and consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. It is not our role to go further and provide guidance to the Board on how we think they should go about their work or what analytical structure they should apply in making their decisions. We must hold the Board to account if they proceed in a manner that is contrary to the statutory commands that I have listed, but we must not impose our view of the procedures they should follow in applying these commands.

[15] As a result, the applicant has failed to satisfy me that, even though the application is moot, it raises an important question that is elusive of review or a matter of public importance, the resolution of which is in the public interest. In short, I am not satisfied that this application should proceed despite its mootness.

[16] For these reasons, I would decline to hear the application.

[17] No costs were asked for in this case, and none are ordered.

Dambrot J.

I agree _______________________________

Penny J.

I agree _______________________________

Favreau J.

Released: March 12, 2021

CITATION: McCauley v. the Ontario Parole Board, 2021 ONSC 1874

DIVISIONAL COURT FILE NO.: DC-21-025-0000-JR

DATE: 20210312

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Penny and Favreau J.J.

BETWEEN:

KRYSTAL MCCAULEY

Applicant

– and –

THE ONTARIO PAROLE BOARD

Respondent

REASONS FOR JUDGMENT

DAMBROT J.

Released: March 12, 2021

McCauley v. the Ontario Parole Board, 2021 ONSC 1874

Case Summary

Reasons for Judgment

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2

Legislation 3