Date: 19990422
Docket: T-1259-97
BETWEEN:
KINETIC CONSTRUCTION LTD.,
Applicant,
- and -
KNAPPETT CONSTRUCTION LTD.,
CCM CONSTRUCTION LTD.,
KINETIC CONSTRUCTION LTD.,
Applicants,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Respondent's motion seeks dismissal of the Applicants' judicial review applications on the grounds of mootness and a declaration that the decision appealed from has been overtaken by events. The motion is clearly not for summary judgment under Rule 213(2) and indeed that Rule is neither referred to in the present motion nor applicable to judicial review. Rather, it is that if the applications are moot, brought about by a change of circumstances, they should be struck out, for example as was done by Mr. Justice Dubé in Taylor v. Attorney General of Canada, an unreported 25 May 1990 decision in action T-818-90. In Taylor the action was struck out for mootness, on the grounds of, among other things, redundancy, vexatiousness and abuse, as provided for in what was then Rule 419.
STRIKING OUT AN APPLICATION
[2] Before dealing with the merits of the present motion, there is a procedural aspect, being the general barrier against using a motion to strike out an application for judicial review.
[3] As Mr. Justice Strayer, of the Federal Court of Appeal, pointed out in David Bull Laboratories (Canada) v. Pharmacia Inc. (1994), 176 N.R. 48 (F.C.A.) "... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (page 52). Yet Mr. Justice Strayer goes on to say, at page 55, that in the very exceptional case a motion "... so clearly improper as to be bereft of any possibility of success..." might on occasion be struck out.
[4] One cannot set out any hard and fast rule either as to what is an exceptional case or where the test, "so clearly improper as to be bereft of any possibility of success", differs from that applying to a pleading to be struck out under Rule 221, except to say that the hurdle to be overcome is meant to be at least as stringent a test as those applied under Rule 221.
[5] In the present instance, if the action by Kinetic Construction is truly moot, the whole proceeding ought to be terminated at this point, so as not to waste everyone's time and effort and to prevent an abuse of the system. However, the application of Kinetic Construction is not moot as it does not meet the standard test set out in Borowski v. Attorney General of Canada (1989), 57 D.L.R. (4th) 23 (S.C.C.).
MOOTNESS
[6] To expand upon the principle of mootness, a case is said to be moot when it seeks to decide an abstract question which does not arise upon existing facts or rights. Madame Justice Sharlow, referring to Wiese v. Canada, T-3202-91, 24 April 1992, Hunt v. Canada, T-2139-92, 11 June 1993 and Armes v. National Parole Board, (1998) 147 F.T.R. 215, defines mootness as follows:
| A proceeding becomes moot when circumstances have changed so that there is no longer a live controversy between parties that can be resolved by a decision in that proceeding. |
| [Shoulders v. Attorney General of Canada, T-719-98, 12 April 1999] |
Hogg on Constitutional Law of Canada, 3rd Edition, Carswell, puts it more simply at page 1275:
| A case is "moot" when there is no longer any dispute between the parties. |
Hogg cites a number of authorities following this definition and then turns to the general rule that parties ought not to be allowed to proceed once a case has become moot, referring to Borowski (supra) as an illustration of the rule.
[7] Mr. Justice Sopenka, who wrote the decision for the Court in Borowski, describes the doctrine of mootness at page 239:
| The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. |
The important point here is that unless the decision has a practical effect on the rights of the parties, both when the proceeding is commenced and when the court hears the matter, there is not live controversy and thus a matter is said to be moot.
[8] Mr. Justice Sopenka goes on to consider examples of mootness, a number of the cases revolving about the repeal of impugned legislation during a proceeding, thus rendering a dispute in fact moot. But none of these examples, nor any case law which I have been able to discover, concerns a finding of mootness in anticipation of possible change to legislation, a point to which I shall return.
[9] Mr. Justice Sopenka goes on to lay out a two step analysis, first, a determination of mootness and second, a determination of whether the court ought to exercise discretion to hear the case, notwithstanding that it is moot, in the sense that there is no live controversy. Now the second part of the analysis is interesting and indeed counsel for the Crown considers this at length in written argument. However, I need go no further than the determination of mootness.
ANALYSIS
[10] The case of the Applicants is that a Regional Director of the Department of Labour, in making decisions pursuant to section 4 of the Fair Wages and Hours of Labour Regulation, C.R.C., c. 1015 and section 6 of the Fair Wages and Hours of Labour Act, R.S.C. 1985, c. L-3 (the "Act") set the fair wage rate for federal construction projects in British Columbia by applying the provincial wage rate. This determination, relying upon a provincial wage rate, is said to be in error as a matter of fact and that it constitutes acting without jurisdiction, acting beyond jurisdiction, refusing to exercise jurisdiction, or otherwise being an act contrary to law.
[11] The Crown says that all of this has become moot because a document, called the Stanley Report, prepared 15 October 1998 (in part because of these proceedings) recommends, among other things, "... that provincial fair wage rates should be used where they exist and are kept current:..." (page 17). Mr. Stanley goes on to recommend that regulations under the Act be amended to bring this and his other recommendations into being.
[12] The Stanley Report was followed by news release from the office of the Minister of Labour on 10 December 1998, setting out, among other things, that the Minister is "committed to the reinstatement of fair wage schedules" and that the Minister has "... developed an action plan so that these recommendations can be implemented in a quick and effective manner, ...". The news release goes on to say that fair wage schedules, presumably the provincial schedules, will be adopted where they are current, that the Department of Labour is discussing the matter with Statistics Canada to explore ways of making surveys to develop wage schedules for other jurisdictions and that "an advisory panel will be established which will periodically provide recommendations to the Minister of Labour on fair wage matters.".
[13] A "summary of the report and action plan", accompanying the press release assures us that:
| The amended regulations could be in place by the fall of 1999 and would include wage schedules that would be applicable on federal work sites across the country. |
This stops far short of an undertaking to have legislation in place this or any other year.
[14] Counsel for the Crown submits that the Minister has made a decision to adopt provincial wage schedules and thus for the Court to now declare the decision made by the Regional Director invalid would be a hollow remedy with no practical effect. Moreover, says the Crown, with the enshrinement of provincial wage schedules the Director's decision, whether or not it was correct, "... is no longer a live issue; it has simply been overtaken by the Minister's decision.". From this, according to the Crown, it follows that the application for judicial review is now moot.
[15] There are several difficulties with this approach to mootness. First, the Regional Director of Labour's decision is still in place, resulting of the imposition of the provincial wage schedule, a schedule which the Applicant says does not reflect the true overall wage situation in British Columbia, a decision which will affect construction in the coming months until some new legislation is in place. Thus there is presently a live issue on this score. Furthermore, there is no real assurance, other than a somewhat general press release, which ties the Minister of Labour either to have new regulations in place by the coming fall, or even at all.
[16] Clearly the matter is not moot at this point. There is a live issue, a live issue that will remain until a point, sometime in the future, should the regulations then be changed.
CONCLUSION
[17] Were this matter to go to a hearing within a reasonable time, the outcome will have some practical effect on the rights of the parties, and that is so even if the legislation should be amended later this year.
[18] The Respondent has not established that the matter is now moot or will become moot at any definite time. The Court must look at the law as it is, not as it might be at some nebulous time in the future. The best that can be said for the Respondent's motion is that it is premature. For that reason it is dismissed, however there will be a thirty day extension of time within which the Respondent's record may be filed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
April 22, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: April 22, 1999
COURT NO.: T-1259-97
STYLE OF CAUSE: Kinetic Construction Ltd.
-and-
| Knappet Construction Ltd., CCM Construction Ltd., Kinetic Construction Ltd. |
v.
Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated April 22, 1999
WRITTEN SUBMISSIONS BY:
Mr. Robert Grant for Applicants
Ms. Adrienne Mahaffey for Respondent
SOLICITORS OF RECORD:
Heenan, Blaikie
Vancouver, BC for Applicants
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada