PRACTICE |
Mootness |
Lavoie v. Canada (Minister of the Environment)
A-611-00
2002 FCA 268, Malone J.A.
20/6/02
11 pp.
Appeal from Trial Division order ((2000), 25 Admin. L.R. 174) dismissing application for judicial review of two decisions under Fisheries Act, ss. 32, 35, authorizing destruction of fish, alteration, destruction of fish habitats as result of construction, operation of hydroelectric project on Kagiano River--Litigation arising from construction, operation of 4.9 megawatt hydraulic power generating station on Kagiano River at Twin Falls in Northern Ontario--Respondent Kagiano Power Corp. arguing successfully that it be permitted to introduce fresh evidence in support of motion to have appeal declared moot--Analysis to be applied when mootness issue raised set out by S.C.C. in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 and New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46--Orders sought by appellant to quash Ministers' decisions now academic as substratum of litigation, that is, proposed construction, consequent ecological impact of Project on immediate surroundings, extinguished--Project now operational, any further input from appellant fruitless--Activities constituting destruction of fish habitat already occurred, nothing left for DFO to approve--Appeal moot--Whether proper case in which to exercise discretion, hear case notwithstanding mootness--First requirement in Borowski, presence of adversarial context continuing although "live controversy" extinguished, met--Second element consideration of judicial economy--Quashing Minister's decisions at this stage, compelling Ministers to comply with Canadian Environmental Assessment Act, ineffectual--Appeal not raising issues which engage national, public interest--Issues raised herein, including alleged breach of duty of procedural fairness, neither novel nor of sufficient general importance to justify hearing of moot appeal--Legal issues raised by appellant not of such significance as to merit not awarding costs to respondents--Appeal dismissed with party-and-party costs to respondents--Fisheries Act, R.S.C., 1985, c. F-14, ss. 32, 35--Canadian Environmental Assessment Act, S.C. 1992, c. 37.