The Applicant applied to dismiss the Appeal of the Order declaring the Respondent a vexatious litigant (“Vexatious Litigant Order”) for being moot in accordance with Rule 14.74(b). The Court noted that the only live issue on the Appeal was the Applicant’s failure to give notice to the Minister before the Vexatious Litigant Order had been granted (“Failure to Give Notice”). The Court subsequently varied the Vexatious Litigant Order, noting that the Failure to Give Notice had been corrected (“Vexatious Litigant Variation”).

The Court noted that Rule 14.74(b) permits a panel of the Court of Appeal to dismiss all or part of an Appeal if the Appeal is moot. The Court set out the test for mootness established by the Supreme Court of Canada in Borowski v Canada (Attorney General), [1989] 1 SCR 342, namely that the Court should first determine whether “the required tangible and concrete dispute disappeared and the issues have become academic” such that the decision of the Court will have no practical effect on the rights of the Parties, thus the essential ingredient is not present and the case is moot. The second step of the test enables the Court to consider whether to exercise its discretion to hear the case even though it is moot.

The Court noted that the Failure to Give Notice was rectified and that the Minister indicated that he would not participate or take a position. The Court of Appeal agreed with the Chambers Justice that the Failure to Give Notice could only have made an impact on the outcome if the Minister had made submissions, and the Chambers Justice had reasonably concluded that the Failure to Give Notice had not substantively impacted his Decision to grant the Vexatious Litigant Order.

The Court concluded that the variation of the Vexatious Litigant Order had the effect of the curing the Failure to Give Notice with retroactive effect. Therefore, the Court found there was no remedy that it was able to grant to the Respondent.

The Court additionally rejected the Respondent’s arguments regarding res judicata and functus officio noting that they would only be relevant on an Appeal of the Vexatious Litigant Variation and therefore did not have the effect of rebutting the conclusion that the Appeal of the Vexatious Litigant Order was moot.

The Court of Appeal declined to exercise its discretion to hear the Appeal despite its mootness, noting that (1) there was no remaining adversarial context, (2) the issue was of importance only to the Parties and not to the broader public, and (3) nothing justified the further expenditure of judicial resources on the now-answered question of defective notice.