[1] By this judicial review application Mr Lena, who when this application was filed was an inmate at Kent Institution, seeks relief against the Kent Institution at Agassiz, British Columbia, against its former warden and against the Attorney General of Canada to the extent of allowing him full access to specific basic necessary resources at Kent Institution so that he might pursue an appeal of his criminal conviction and an order that his 28 boxes of files, related to his criminal conviction appeal, be released to him.

[2] The affidavit material indicates that on 10 February 2003 Mr Lena, having attempted to strike another inmate with what appeared to be a home-made knife, was placed in segregation. From subsequent material filed by the Respondents and by Mr Lena it appears that while in segregation he was afforded reasonable accommodation and access to the court process in order to pursue his appeal, but I think also with reasonable restrictions.

[3] There are this time on this file three pending motions in writing. By one motion Mr Lena asks that he be allowed to file affidavits with unsworn exhibits. By the second motion Mr Lena asks for a general adjournment of this proceeding, because he does not, in his new institutional setting in Quebec, had adequate access to copying facilities and to a commissioner. By the third motion, which gives rise to these reasons, the Respondents seek to have the judicial review application, which is based on conditions which existed at the Kent Institution, British Columbia, struck out as moot. Here I would note that in material filed on this third motion variously refers to "Respondent" and to "Respondents", however I take it from an overall view that Crown counsel brings the motion to strike out the judicial review proceeding, as a whole, on behalf of all of the Respondents.

THE RESPONDENTS' MOTION

[4] The Respondents, who wish this judicial review application struck out, say that the application is moot because of circumstances bearing on the incarceration of Mr Lena. The Respondents say that they were unable to provide the necessary degree of care and custody at the Kent Institution in British Columbia and that Mr Lena was therefore transferred to a special handling unit at the Regional Reception Centre, Sainte-Anne-des-Plaines, Quebec, along with all of his personal possessions, including his legal material. This being the situation, the Respondents submit, in effect, that there can be no relief applicable to anything related to Mr Lena's stay at the Kent Institution: on this basis the judicial review application based on his incarceration at the Kent Institution and the conditions there, is moot, for the relief that he seeks, in the nature of mandamus, relates to access to Kent Institution facilities and unfettered access to those facilities, equipment and benefits, and alleged theft of his legal files by or on behalf of the Kent Institution.

[5] While served with the material for this motion, Mr Lena did not respond. However an unopposed application to strike out does not automatically succeed. There is a stringent standard which the moving party must meet.

CONSIDERATION

Striking Out an Application by Reason of Mootness

[6] To begin, the Court of Appeal in David Bull David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 warned against striking out a judicial review application unless there were very exceptional circumstances. Cases building on this concept include Garcia v. Canada (Minister of Justice) (1997), 129 F.T.R. 174 (F.C.T.D.), Bouchard v. Canada (Minister of National Defence) (1998), 158 F.T.R. 232 (F.C.T.D.) and Wheaton v. Canada Post Corp. (2000), 186 F.T.R. 108 (F.C.T.D.): these cases may be summarized by the proposition that the exceptional circumstances test is met when a proceeding should be struck out to avoid wasting the time of everyone involved.

[7] The exceptional circumstances test has been applied where the relief has become moot: by way of example see Labbé v. Canada (The Lètourneau Commission) (1997) 128 F.T.R. 291 (F.C.T.D.); Narvey v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 1 (F.C.T.D.); Lee v. Canada (Minister of Citizenship and Immigration) (1997) 126 F.T.R. 229 (F.C.T.D.) and Pauktuutit, Iniut Women's Association v. Canada (2003), 229 F.T.R. 8 (F.C.T.D.).

Mootness Considered Generally

[8] Leading up to a consideration of the reasons behind the doctrine of mootness, Mr Justice Sopinka, in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353, looked at the doctrine of mootness as an aspect of general policy or practice:

15 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 analysis required by Mr Justice Sopinka is in two steps:

16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. (loc.cit.)

This, as I say, leads to the reasoning behind the doctrine of mootness and then the points to consider.

[9] The test for mootness is set out in Borowski (supra). Mr Justice Sopinka concluding, at pages 359 to 362, that there are three points to consider in examining the mootness of an issue and the exercise of the discretion to allow a moot issue to proceed:

(i) the existence of an adversarial context;

(ii) judicial economy and the conservation of judicial resources; and

(iii) a need for the Court to demonstrate awareness of its proper function.

[10] There is a general policy, referred to in Borowski (supra), that a court will not decide cases that raise hypothetical or abstract questions. There is a parallel to this in judicial review, for a court will not grant extraordinary relief where the dispute is academic in the sense of a complete absence of any practical elements: see Pauktuutit (supra) at page 13. Here I would also refer to [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821 at 832, Mr Justice Dickson observing that two factors bear on determining whether a controversy is active enough that declaratory relief might be granted:

The first factor is directed to the "reality of the dispute". It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise.

Justice Dickson continued:

... Once one accepts that the dispute is real and that the granting of judgment is discretionary, then the only further issue is whether the declaration is capable of having any practical effect in resolving the issues in the case.

I would add that these concepts, the examination of the reality of the dispute and the practical effect, if any, should be bounded by the by the concept that a court should decide only what is necessary in order to determine a case. I now turn to mootness as applied to the present instance.

Mootness and the Present Judicial Review Application

[11] While Mr Lena may still feel that he was badly dealt with at the Kent Institution, a live controversy, or concrete dispute, no longer exists as Mr Lena, his files and belongings had been moved from the Kent Institution to a special handling unit in Quebec. To make a decision, by way of judicial review of this matter, would make no practical difference to Mr Lena for he, his possessions and his complete criminal conviction appeal material are no longer at the Kent Institution. Thus the issues have become academic. As I have said, a court will not grant the sort of relief sought by Mr Lena when the dispute has become academic in the sense of a complete absence of any practical elements. To repeat, Mr Lena may feel that he was hard done by, but there is no longer an adversarial context within the ambit of the judicial review notice of application, which involves the Kent Institution. Nothing depends upon the court reaching a decision in this matter. I now turn to the subject of discretion.

[12] In deciding whether I ought to exercise my discretion and allow this matter to proceed, I should consider the need for judicial economy. The issue here is whether there are special circumstances which make it worthwhile to apply scarce judicial resources to an issue which has become moot. The case which Mr Lena brings is important to him, but it is fairly complex and the outcome, after the expenditure of judicial resources and taxpayers' money, would have virtually no practical effect on the parties. It has no broader effect on anyone else, for the remedy which Mr Lena seeks is an individual remedy. Indeed, considering the absence of an adversarial context and the need for judicial economy, on the basis of a cost and benefit analysis such as was referred to by Mr Justice Sopinka, in Borowski (supra), at page 361, there is no interest which might over-balance the costs of deploying judicial resources which are in scarce supply.

[13] I turn now to the need for the Court, in the words of Mr Justice Sopinka, in Borowski (supra) at page 362, to demonstrate an awareness of a proper law-making function. To allow the matter to proceed, to pronounce a judgment in the absence of any dispute affecting the rights of the parties, would not necessarily be an intrusion into a law-making or legislation function, which was the concern of Mr Justice Sopinka, in Borowski. However the absence of one of the three principles is not by any means fatal to a motion to strike out for mootness. Mr Justice Sopinka pointed this out in Borowski at page 363, to the effect that there must be a balancing: the absence of one factor may be overborne by the presence of other factors. In the present instance the fact that the matter is moot, coupled with an absence of an adversarial context and the concern for judicial economy, overbear the fact that the Court would not be departing from its fundamental role in dealing with the application of Mr Lena.

[14] Mr Lena did not respond to the Crown's application to strike out the judicial review proceeding, however he might have said that one day he could be transferred back to the Kent Institution. I am not prepared to speculate on that possibility. The Applicant, now being in a special handling unit in Quebec, this judicial review application is plainly, obviously and beyond doubt one which will not succeed and therefore ought not to be heard, for in the circumstances it would be a waste of the time of everyone concerned. The judicial review application is struck out and is dismissed. No costs being sought, none are awarded.

[15] Having brought this judicial review application to end I do not need to consider the motions of Mr Lena for either an adjournment or for some special dispensation in connection with the swearing of affidavits.

(Sgd.) "John A. Hargrave"

Prothonotary

Vancouver, British Columbia

4 February 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTIONS DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET: T-343-03

STYLE OF CAUSE: Michael Angelo Lena v. The Kent Institution et al.

REASONS FOR ORDER BY: Hargrave P.

DATED: 4 February 2004

WRITTEN REPRESENTATIONS BY:

Michael Angelo Lena

Mary Ann Barker

APPLICANT on his own behalf

FOR RESPONDENTS

SOLICITORS OF RECORD:

Michael Angelo Lena

Agassiz, British Columbia

Morris A Rosenberg

Deputy Attorney General of Canada

Department of Justice

Vancouver, British Columbia

APPLICANT on his own behalf

FOR RESPONDENTS

You are here

Lena v. The Kent Institution, 2004 FC 192

Citations2004 FC 192

Case tabs

Citations
2004 FC 192