The appellants appealed from a judicial review decision where the substantive relief sought in their petition was no longer available. The Court of Appeal dismissed the appeal on a preliminary basis as moot.

[2012] B.C.J. No. 2123

2012 BCCA 390

British Columbia Court of Appeal

M.E. Saunders, K.E. Neilson and E.A. Bennett JJ.A.

September 24, 2012

The appellants, residential property owners in the Village of Anmore, had a subdivision of property approved by the respondent approving officer adjacent to their residential property. The appellants brought a petition for judicial review of the decision of the approving officer in the lower court. In their petition, the appellants sought:

  1. a declaration that the respondent’s exercise of his statutory power was ultra vires;
  2. a declaration that the respondent’s exercise of his statutory power was based on improper considerations, made in bad faith, and discriminatory; and
  3. an order enjoining the respondent from approving the subdivision.

After their petition was dismissed, the subdivision plan was approved, deposited in the Land Title Office, and two of the three subdivided lots were sold. The appellants appealed from the dismissal of their petition for judicial review.

On appeal, the respondent took the position, as a preliminary point, that the appeal was moot and the court should not exercise its discretion to hear the appeal. The appellants conceded that the substantive relief sought in the petition, an order enjoining the respondent from approving the subdivision, was no longer available, and that the declaratory relief with respect to the respondent’s jurisdiction to approve the subdivision was moot. However, the appellants maintained that the declaratory relief with respect to the purported exercise of discretion by the respondent in bad faith was still available and relevant to a future claim for damages for misfeasance of public office. That claim was not yet commenced; however, the appellants argued that a declaration of bad faith would be of utility in such a claim and would avoid a plea of collateral attack or issue estoppel.

The Court of Appeal reviewed the doctrine of mootness, which holds, as 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 doctrine is based on a two step analysis:

  1. whether the required tangible and concrete dispute has disappeared and the issues have become academic; and
  2. if the response to the first question is affirmative, whether the court should exercise its discretion to hear the case.

The exercise of discretion within the doctrine of mootness is rooted in the adversarial system and values an adversarial context. It reflects a concern for judicial economy and recognizes the need for the court to demonstrate awareness of its proper lawmaking function. At the hearing of the appeal, the court held that the question of the jurisdiction of the respondent was clearly moot; however, it reserved on the question of mootness of the issue of good faith.

The Court of Appeal found that while there was an adversarial context, there was no other outstanding litigation between the parties and even if the appellants commenced an action for damages for misfeasance of public office, as of the appeal there was only a claim for a declaration of bad faith without any practical effect in the context of the judicial review and in circumstances where the substantive relief sought was not available. The court summarized its conclusion on the issue of mootness, stating: “[t]he entire judicial proceeding was directed to preventing an event that has now occurred.” Judicial economy was not served by hearing the appeal and the court could not substitute an order allowing the petition because the substantive relief was unavailable. At most, the court could set aside the order remitting the matter to the trial court to resolve a petition where it could not undo the substantive relief in issue. The appeal ws moot and the court held that it ought not to exercise its discretion to hear the appeal. The appeal was dismissed.