In this litigation, a Prothonotary had ordered production of certain documents, but that order was subsequently set aside as moot as most of the documents had been produced (2014 FC 825, unreported). The appellants sought to overturn the Prothonotary’s order, but did not seek a stay of the finding of mootness. By the time of the hearing of the appeal, all the documents had been disclosed and production pursuant to the order was complete.
In finding the appeal moot, the Federal Court had decided that there was no longer an adversarial relationship between the parties as the order had been substantially complied with. The Court of Appeal agreed. Although the appellants tried to distinguish the prior jurisprudence by arguing the production was made by a third-party, the Court was not moved. Furthermore, by producing the documents under cover of a “without prejudice” letter to its right to appeal was not found to be determinative. In the future, the Court encouraged parties to seek an agreement allowing an appeal to proceed notwithstanding full or partial compliance with a production order.