Kinetic Construction Ltd. v. Canada ( Attorney General )
T-1259-97
Hargrave P.
22/4/99
8 pp.
Motion for dismissal of applicants' judicial review applications on grounds of mootness and declaration decision appealed from has been overtaken by events-Normally, where respondent thinks originating notice of motion without merit, proper way to contest proceeding to appear and argue at hearing of motion itself, but in exceptional case where motion so clearly improper as to be bereft of any possibility of success, motion might on occasion be struck: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)-Motion dismissed-Application not moot as does not meet test set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342-No case law concerning finding of mootness in anticipation of possible change to legislation, as argued herein-Applicants herein arguing setting fair wage rate for federal construction projects in British Columbia by applying provincial wage rate constituting error as matter of fact, acting without jurisdiction, acting beyond jurisdiction, refusing to exercise jurisdiction, or otherwise contrary to law-Crown arguing case moot as report recommending amendment to regulations to effect provincial fair wage rates should be used where they exist and kept current, and as Minister of Labour issued news release promising implementation thereof-However, in meantime, decision still in place and will affect construction in coming months until new legislation in place-Thus presently live issue on this score-Furthermore, no real assurance, other than press release, tying Minister to have new regulations in place by coming fall, or even at all.