



COURT OF APPEAL FOR ONTARIO

CITATION: Halat (Re), 2019 ONCA 112

DATE: 20190214

DOCKET: C65040

Feldman, Lauwers and Nordheimer JJ.A.

IN THE MATTER OF: Derek Halat

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti,
amicus curiae

Derek Halat, in person

Philippe Cowle, for the Attorney General

Julie Zamprogna
Ballès
,
    for the Southwest Centre for Forensic Mental Health Care, St. Josephs Health
    Care London

Heard: January 29, 2019

On appeal from the
    disposition of the Ontario Review Board dated February 1, 2018.

REASONS FOR DECISION

[1]

The appeal before the court is from the disposition of the Ontario
    Review Board dated February 1, 2018, where the appellant was ordered detained
    subject to conditions including the ability of the person in charge to allow
    the appellant to live in the community in supervised accommodation.

[2]

For reasons not fully explained, the Board scheduled the appellants 2019
    annual review hearing for January 11, 2019, and proceeded with that hearing,
    although this appeal was scheduled to be heard on January 29, 2019. We are told
    that Board-appointed
amicus
for the appellant at the January 11 review
    (not Ms. Szigeti) was not aware of this appeal, and therefore did not address with
    the appellant the issue of seeking an adjournment of the January 11 review until
    after the appeal of the 2018 disposition.

[3]

The Boards disposition was released on January 14, 2019. It again ordered
    the appellants detention with conditions. The only changes from the 2018
    disposition are: 1) the appellant may now enter the community of Southwestern
    Ontario, indirectly supervised; and 2) the condition regarding living in the
    community now states that it is to be in 24-hour supervised accommodation.

[4]

Because this appeal had become moot, the disposition under appeal having
    been superseded by the 2019 disposition, all counsel wrote to the court to
    alert it to that issue. In response, the court offered to use the time set for
    the appeal of the 2018 disposition to hear an appeal from the 2019 disposition
    if counsel were able to provide any additional material they felt was
    necessary. Unfortunately, counsel were not able to take up the courts offer
    because the Board had not yet delivered its reasons for the January 14, 2019 disposition.

[5]

At the hearing, counsel for the Crown submitted that although the appeal
    was moot, it would be appropriate for the court to hear the appeal from the
    2018 disposition. He said this for two reasons.  The first was that the
    hospital had undertaken to immediately seek a new hearing following the release
    of this courts decision, so that the effect of hearing the appeal would be to
    provide the Board with the courts view on the 2018 disposition before it holds
    the new hearing.  The second was that hearing this appeal could obviate the
    procedural unfairness issue the appellant raised in his notice of appeal of the
    2019 disposition:  by dealing with this appeal and providing reasons to the
    Board before it conducts the new hearing that the hospital undertook to request,
    this court would eliminate the appellants concern about the Boards 2019
    review having proceeded before this appeal.

[6]

After hearing full submissions on the mootness issue, the court advised
    the parties that it would not proceed to hear the moot appeal.  We said that we
    would deliver brief reasons for that decision. These are those reasons.

[7]

The seminal case from the Supreme Court of Canada on the question of when
    a court should exercise its discretion to hear a moot case or appeal is
Borowski
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, where the court
    mandated a two-step process for the analysis. The first step is to decide
    whether the case or appeal is moot, i.e. whether there remains a live
    controversy that affects the rights of the parties. If there is not and the case
    or appeal is therefore moot, the general rule is that the court will not hear
    the matter.

[8]

However, the court must decide whether it should exercise its discretion
    to hear and decide the case or appeal in any event, considering three factors: 1)
    whether the necessary adversarial context remains, which may be provided by
    collateral consequences of the resolution of the issue between the parties; 2)
    despite the concern for judicial economy, whether special circumstances justify
    applying scarce judicial resources to the case because, for example, the case
    raises an important issue that will always be moot by the time it reaches
    appeal, or an issue that is a matter of public importance and in the public
    interest to resolve; 3) the need for the court to be aware of its proper law-making
    function and the extent to which it may be departing from its traditional role
    by hearing the case or appeal:
Borowski
, at pp. 358-63.

[9]

In answer to the first stage of the two-step analysis, it is clear that
    the appeal is moot because the 2018 disposition of the Board no longer governs
    or applies to the appellant. It is spent and of no further effect. There is
    therefore no live issue between the parties in relation to that disposition.

[10]

The
    second step is whether the court should hear the moot appeal in any event. Counsels
    main argument was that there were still collateral consequences because the
    appellant remains subject to the Boards jurisdiction and the Board should have
    the benefit of this courts views on its disposition for use in the future.

[11]

We
    do not accept that submission. To the contrary, because of the continuing
    jurisdiction of the Board over the appellant, it is important that this court
    only review dispositions of the Board where it can give a remedy for any
    reviewable error. These issues may well arise again between these parties for
    proper disposition on a current record. This court should not provide its
    opinion in the air and without binding effect. Similarly, in response to the
    submission by
amicus
counsel for the appellant that it would be useful
    for this court to rule on the meaning of "supervised accommodation, that
    is the courts role in the context of an appeal based on a record. It is
    neither useful nor appropriate for the court to opine on the meaning or
    parameters of a key tool of the Board on the basis of a record that has been superseded,
    and to issue a decision without binding effect on the parties.

[12]

As
    the parties have not demonstrated that the
Borowski
factors provide a
    basis to depart from the general rule against hearing a moot appeal in these
    circumstances, the appeal is dismissed. In light of what has transpired, the
    court is prepared to hear the appellants appeal from the January 14, 2019
    disposition or from any new disposition that the Board may make as soon as
    possible, and will accommodate counsel to achieve an early hearing date.

K.
    Feldman J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


