Fogal v. Canada
T-790-98
McKeown J.
28/4/99
12 pp.
Motion for order dismissing application for judicial review on ground moot-Applicants seeking declaratory relief, prerogative, injunctive relief from execution, ratification, implementation of Multilateral Agreement on Investment (MAI)-Since filing of application, negotiations toward MAI ended without agreement being reached-While issue of whether respondents having jurisdiction to negotiate treaty similar to MAI under constitutional framework not moot, subject-matter of originating notice of application moot-(1) Court having jurisdiction to dismiss application for judicial review at this interlocutory stage where no possibility of success: Labbé v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia-Létourneau Commission) (1997), 128 F.T.R. 291 (F.C.T.D.)-(2) Two-step analysis for application of doctrine of mootness set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342-(i) As any possibility of agreement ceased, no live controversy-(ii) As vigorous adversarial relationship, first criteria for Court's exercise of its discretion to hear application met-As to concern for judicial economy, parties agreeing some of these issues will come before Court again should government commence negotiations for, achieve new draft or final MAI, and any future case not evasive of judicial review-Pronouncing judgments in absence of dispute affecting rights of parties may be viewed as intruding into role of legislative branch-Applicants really seeking legal opinion on some future agreement following negotiations elsewhere-As in Borowski, applicants seeking to turn application into private reference-Possibility World Trade Organization may sometime start negotiations toward international agreement for rules on investment, but sheer speculation as to form and content of any agreement that might be achieved if negotiations proceeding to fruition-Situation similar to that in Native Women's Assn. of Canada v. Canada (1992), 145 N.R. 253 (F.C.A.)-Court declining to exercise discretion to decide case on merits-Mootness cannot be avoided by using Federal Court Rules, 1998, r. 64 prohibiting challenging proceeding on ground only declaratory order sought, and Court may make binding declaration of right in proceeding whether or not any consequential relief can be claimed: Operation Dismantle Inc. et al. v. Her Majesty the Queen, [1985] 1 S.C.R. 441-Motion to dismiss granted-Federal Court Rules, SOR/98-106, r. 64.