Date: 20000417
Docket: T-1141-98
T-1176-98
T-1376-98
BETWEEN:
T-1141-98
BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY
and JANE GOTTFRIEDSON,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN,
Defendant,
AND BETWEEN:
T-1176-98
PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION
and VERONICA DEWAR
and MARY SILLET,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN,
Defendant.
AND BETWEEN:
T-1376-98
BRITISH COLUMBIA NATIVE WOMEN'S SOCIETY
and JANE GOTTFRIEDSON, JANE MANUEL,
AVA ALLISON, SHARON McIVOR,
VIRGINIA MINNABARRIET,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These three actions involve the challenge of a government assistance program, referred to by the parties as New Relationship/Post-Pathways ("Post-Pathways"), a program designed to create jobs for aboriginal and Inuit peoples. The challenges of the B.C. Native Women"s Society and the Pauktuutit Inuit Women"s Association are on the basis of the sexual orientation of the program.
[2] The Defendant seeks to strike out the actions not on the basis of any initial substantive want of a cause of action, but on the basis of a subsequent procedural argument, that of mootness, for the Post-Pathways program, having been replaced by an expanded program, the Aboriginal Human Resources Development Strategy ("AHRDS") on 1 April 1999, is no longer in operation. I struck out all three actions which challenge the Post-Pathways program so those actions now stand as dismissed. These are promised reasons.
BACKGROUND
[3] By way of background there have been three generations of aboriginal programs run by the Department of Human Resources Development. The first generation, called Pathways, ran for 5 years from 1991 to 1996. The Post-Pathways program, challenged in the three actions which were all commenced in 1998 (the "1998 actions"), ran for 3 years from 1996 to 1999. The current AHRDS program began 1 April 1999 and is to run for 5 years. I accept that the Post-Pathways and the current AHRDS programs are slightly different in structure and scope, however those are not relevant factors in this consideration. What is relevant is the replacement of the Post-Pathways program with the AHRDS program, the third generation program.
[4] Here I would note that the third generation program, the AHRDS, is the subject matter of two existing 1999 Federal Court Actions. In those actions the B.C. Native Women"s Society and the Pauktuutit Inuit Women"s Association challenge the third generation program on the same basis, that it discriminates against native and Inuit women. The statements of claim challenging the third generation AHRDS program are somewhat more refined than the statements of claim in the 1998 Actions which challenge the Post-Pathways program. However, the basis of the claim and the relief sought are similar.
[5] The Defendant submits that since the 1998 actions challenge a program which is no longer in operation, the remedies sought, declaratory and injunctive relief and a reading into past agreements under the Post-Pathways program of various equality concepts are moot. This leads to a consideration of the law on striking out and mootness.
ANALYSIS
Some Applicable Law
[6] A proceeding may be struck out for mootness: see for example Taylor v. A.G.C., an unreported 25 May 1990 decision of Mr. Justice Dubé in action T-818-90, in which the defendants successfully struck out a moot action, alleging it was, among other things, redundant, vexatious and an abuse, under what was then Rule 419 and is now Rule 221. Such a moot claim will plainly and obviously not succeed, in the sense that it will not produce a practical result, for there is no controversy to support the claim and thus it ought, subject to certain exceptions, to be struck out.
[7] To elaborate, a claim may become moot when the circumstances change so that there is no longer a live controversy between the parties. This concept of mootness arises from a passage from Shoulders v. Canada (2000), 165 F.T.R. 125 at 127:
| A proceeding becomes moot when circumstances have changed so that there is no longer a live controversy between the parties that can be resolved by a decision in that |
| proceeding. |
This was the fairly concise conclusion reached by Madame Justice Sharlow, as she then was, after touching upon several current leading cases. A simpler statement is that "a case is "moot" when there is no longer an dispute between the parties." (Hogg on Constitutional Law of Canada, Third Edition, Carswell, at page 1275). Hogg also, following this passage, notes the general rule that parties ought not to be allowed to proceed once the case has become moot, there referring to Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342. The often quoted passage from Borowski is at page 353:
| 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. |
Key here is that the decision must have a practical effect on the rights of the parties, not only when the proceeding is commenced, but also when the Court hears the matter.
[8] Mr. Justice Sopinka goes on to consider cases involving the repeal of impugned legislation during a proceeding, thus rendering a dispute in fact moot. That is close to what has happened in the present instance: a program with a set lifespan ran out and was replaced with another program designed to cover current circumstances.
[9] In Borowski Mr. Justice Sopinka sets out a two step analysis. First is a determination of mootness. Second is a determination of whether the Court ought to exercise discretion to hear the case even though it was or has become moot.
[10] Turning to the second aspect, the exercise of discretion, Mr. Justice Sopinka comments in Borowski that there is no neat set of criteria as to when the discretion ought to be exercised and indeed "... that more than a cogent generalization is probably undesirable because an exhaustive list would unduly fetter the court"s discretion in future cases." (page 358). However, there are some established principles which are useful in this instance. First, as that a matter may be properly tried and determined, there must be the necessary adversarial relationship, a type of relationship which may cease to exist once an issue has become moot. Second, there may be special circumstances which warrant the application of scarce judicial resources. Finally, there may be a need to demonstrate the Court"s proper law making function. These criteria require some sense of balancing, for the process of applying the principles is not a mechanical one:
| In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. [Borowski, supra, at 363] |
[11] The doctrine of mootness cannot be avoided by, as here, seeking declaratory relief: see Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 at 481-482 and Fogal v. Canada (2000), 167 F.T.R. 266 at 274-275.
Application of the Mootness Doctrine
[12] The claims supported by the 1998 actions are moot because the Post-Pathways program is no longer in operation. It has been entirely replaced by a third generation program, AHRDS. This is not to say that there is no current issue between the parties, specifically the issue of continuing sex discrimination against aboriginal and Inuit women and their representative organizations, but it is just that the dispute no longer exists in the Post-Pathways context. Here I believe that the Plaintiffs are not in disagreement: at paragraph 42 of her submissions counsel for the Plaintiffs notes that "The tangible and concrete dispute between the Parties has not disappeared but continues under the AHRDS Program.". However I do not base my finding of mootness on this statement, or take it to be an admission: it is merely an affirmation of a conclusion that I would have reached in any event.
Discretion to Proceed with a Moot Action
[13] I now turn to a consideration of whether there ought to be an exercise of discretion so that the 1998 actions might be proceed to a conclusion.
[14] Counsel for the Plaintiffs has presented much argument, written and oral, together with substantial case material, as to why the Plaintiffs ought to be allowed to proceed with the 1998 actions. Some of that argument and case law is relevant. Other portions of that argument, in effect, deal with the merits of the actions themselves: here one may be sympathetic. However the Plaintiffs" submissions clearly do not establish the slightest possibility that a court might exercise discretion and hear the 1998 actions, for the principles for hearing a moot case, set out in Borowski , have not been met.
[15] First, there are certainly strong feelings on the part of the Plaintiffs that they were discriminated against under the Post-Pathways program. However, the Program being defunct, there is no longer any live issue and current controversy based on the Post-Pathways program to sustain the necessary level of adversarial conduct. As I say, remnants of strong feelings, engendered by a view of having been discriminated against in the past, certainly still exist. But when circumstances change, as they have here, when the focus should be on the new and current AHRDS program, mere strong feelings of past wrongs, without a current meaningful issue or remedy, do not constitute an appropriate adversarial climate within which to properly try the issue.
[16] Second, I do not see any special circumstances which warrant the application of scarce judicial resources to decide the 1998 actions. A decision in the 1998 actions might be comforting to the Plaintiffs in the sense that, on succeeding, their view of the defunct program would be vindicated. However, the Plaintiffs have two current actions challenging the current programs on the same grounds of discrimination. The Plaintiffs also say that they intend to bring a third action, challenging the AHRDS program, in effect mirroring the three 1998 actions. Far better that the scarce judicial resources of this Court and of courts on appeal be conserved and be applied to resolve a current and meaningful controversy, a resolution that can have a practical effect on the rights and obligations of the parties.
[17] Third, is the concept of the need to demonstrate the Court"s proper law making function. Put another way, is there any need for the Court demonstrate a certain awareness of its law making function? If the Court were to hear the 1998 actions, in the clear absence of a dispute, and given that the Crown is engaged in putting into place agreements under the current AHRDS program, that might be viewed as an intrusion into the role of the legislative branch of government, rather than a proper function of the Court.
[18] In reaching the conclusion that the Court ought not to exercise its discretion, I am bolstered by the decision of Mr. Justice Lemieux in Misquadis v. Canada, an unreported 26 February 1999 decision of Mr. Justice Lemieux in Action T-1314-98. There at issue was judicial review of the Post-Pathways program. At that point, the program was still in effect but, in the view of Mr. Justice Lemieux, the issue would become moot on the 1st of April 1999 when the AHRDS program came into effect. Mr. Justice Lemieux did not decide the point, however he noted that the Post-Pathways issue might well become moot and that was a factor in deciding to adjourn the hearing of the matter.
CONCLUSION
[19] The issues brought by the Plaintiffs, arising out of the defunct 1998 programs, are clearly moot. I cannot find any basis upon which to exercise discretion so that the 1998 actions may be brought to a conclusion by way of a hearing of the issues. To do so would result in a hearing without a real adversarial climate, a waste of scarce judicial resources and a possible perceived intrusion into the role of government. Overall, the 1998 actions are proceedings which plainly and obviously will not succeed. They cannot lead to any effective result.
[20] At this point, counsel should expend her resources and her client"s resources on the existing challenges of the current AHRDS program and should do so promptly, for that program has only another four years to run. I thank counsel for the effort they have put into the presentation of and the response to this motion.
(Sgd.) "John A. Hargrave"
Prothonotary
April 17, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-1141-98 |
T-1176-98
T-1376-98
| STYLE OF CAUSE: B.C. NATIVE WOMEN"S SOCIETY ET AL. v. HER MAJESTY THE QUEEN |
| PLACE OF HEARING: VANCOUVER, BC |
| DATE OF HEARING: April 7, 2000 |
| REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY |
| DATED: April 17, 2000 |
APPEARANCES:
| Ms. Theresa Nahanee for the Plaintiffs |
Ms. Gail Sinclair
| Ms. Lara Spears for the Defendant |
SOLICITORS OF RECORD:
McIvor Nahanee Law Corporation
| Merritt, BC for the Plaintiffs |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Defendant |