Mootness: When Will Courts Decide A "Dead" Case?

Canadian courts continue to apply the framework from Borowski v Canada (Attorney General), [1989] 1 SCR 342 ("Borowski") when determining whether to hear matters that are moot – those that have lost their practical effect on the parties in the changed circumstances. Several recent appellate decisions across Canada confirm the continued application of this approach, including a recent Alberta Court of Appeal ("ABCA") that illustrates how the framework operates in practice.

Under Borowski, courts first ask whether a "live controversy" remains. If not, they then consider whether the court should nevertheless decide the matter by weighing three factors: (1) the continued presence of an adversarial context, (2) judicial economy, and (3) the court's proper law-making function.

We begin with the recent ABCA decision in The Owners: Condominium Plan No. 002 1156 (Castledowns Pointe) v The Bank of Nova Scotia, 2026 ABCA 28 ("Castledowns Pointe"), then briefly highlight three other recent appellate decisions that apply the same Borowski framework in different factual contexts.

Background

Castledowns Pointe involved a residential condominium building damaged by fire in March 2023 (the "Property"). During subsequent assessments of the Property, engineers identified pre-existing structural issues, and the City of Edmonton directed that the building be vacated in September 2023. It was never repaired.

In March 2024, the condominium corporation (the "Applicant") applied for court approval for the sale of the Property, distribution of proceeds, and its dissolution.

Several major banks (the "Banks") were mortgagees on 29 units of the Property. While they did not oppose the sale of the Property or the dissolution of the Applicant corporation, they challenged two features of an Order made October 9, 2024 (the "2024 Order"), which:

• directed that $230,286.04 from the sale proceeds be paid toward legal fees; and
• granted a $100,000 holdback from sale proceeds to address other corporate expenses described in the 2024 Order

(the "Opposed Features").

The Banks appealed the 2024 Order, arguing that chambers judge had misinterpreted section 61(3) of the Condominium Property Act (the "Act"), and that the Opposed Features effectively permitted unsecured debts of the Applicant to be paid ahead of secured mortgage interests.

Notably, the sale contemplated by the 2024 Order did not proceed, and the parties agreed that the appeals arising from the 2024 Order were therefore moot. The issue before the Court was whether it should nevertheless exercise its discretion to hear them.

The Decision

The Court declared the appeals moot and dismissed them, declining to direct a hearing on the merits. In doing so, the Court applied the framework established by the Supreme Court of Canada in Borowski v Canada (Attorney General), [1989] 1 SCR 342 ("Borowski").

The Borowski Framework

Under Borowski, courts apply a two-step analysis in determining whether they should hear matters that are moot:

• Determine if there is a "live controversy"

The court first determines whether there is still a "live controversy", which exists where a court's decision would have a real, practical impact on the parties' rights or obligations.

• Determine whether the court should exercise its discretion to hear the moot issue

If no live controversy exists, the court considers three guiding factors:

1. Adversarial context: whether the issue is still in an adversarial context.
2. Judicial economy: whether deciding on the issue is a worthwhile and efficient use of scarce court resources. Courts are more willing to hear moot matters when doing so will have "some practical effect on the rights of the parties" or where issues are "recurrent but brief and therefore evasive of judicial review" (para 14).
3. Court's proper law-making function: whether issue is merely abstract or deciding on it would improperly intrude into the legislative sphere.

Application in Castledowns Pointe

Under Step 1, the Court found that there was no live controversy, as the dispute over the 2024 Order disappeared when the sale contemplated by that Order did not proceed.

Under Step 2, the Court considered the three guiding factors:

• Adversarial context: an adversarial context remained given the parties' ongoing disputes.
• Judicial economy: the central issue in the moot appeals, the interpretation of section 61(3) of the Act, also arose in a separate, live appeal concerning a later "Insurance Order" containing materially similar provisions. Because the same legal issue would be decided in the live appeal, hearing the moot appeals was found to be duplicative and inefficient of court's resources.
• Court's proper law-making function: while interpretation of section 61(3) of the Act fell within the Court's adjudicative role, and the provision had received limited prior judicial consideration, the Court held that clarity would come through the live, subsequent appeal.

Ultimately, the Court declined to hear the moot appeals.

Beyond Alberta: A Nationally Consistent Approach

Recent appellate decisions across Canada confirm a nationally consistent approach: Borowski supplies the governing test, and outcomes typically turn on the same discretion factors.

British Columbia

The British Columbia Court of Appeal ("BCCA") has confirmed that a matter can be moot on the facts, yet still be heard where doing so would provide needed guidance on a recurring issue in an ongoing relationship. In TELUS Communications Inc. v. Telecommunications Workers Union, 2026 BCCA 5 ("Telus"), the BCCA exercised its discretion to hear an appeal from an interim injunction even though, by the time of the appeal, the injunction had expired and the underlying grievances had been resolved.

The BCCA emphasized that an adversarial context remained given the parties' ongoing labour relationship, the likelihood of recurrence, and the value of appellate guidance. Unlike Castledowns Pointe, there was no parallel live proceeding addressing the same issue.

Ontario

The Ontario Court of Appeal ("ONCA") confirmed that even a matter is moot and the parties remain in a proper adversarial posture, a court may still decline to hear the case if the Borowski discretion factors do not justify a merits decision. In Canadian Union of Postal Workers v. Canada (Attorney General), 2026 ONCA 75 ("CUPW"), the ONCA held that a Charter challenge to back-to-work legislation was moot because the legislation was "spent": the strike prohibition had expired, the interest arbitration process had concluded, and the parties had since moved on to extended and then new collective agreements.

Although it was common ground that the necessary adversarial context remained and the parties were well represented, the ONCA ultimately concluded there was no longer a live dispute requiring determination and declined to decide the matters on its merits.

Federal

The Federal Court of Appeal ("FCA") confirmed that even where legislative change eliminates the immediate legal controversy, the court may still decide the appeal where the underlying issues remain practically significant and the Borowski factors favour a merits decision. In Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17 ("Plastic"), Parliament amended the Canadian Environmental Protection Act ("CEPA") before the appeal was heard such that the challenged Order no longer existed at law, and the FCA found there was no live controversy.

Nonetheless, the FCA exercised its discretion to decide the appeal. It found an adversarial context remained, the amended CEPA framework continued to capture the same substance at issue (plastic manufactured items), and significant time and resources had already been invested. In those circumstances, the continuing relevance of the legal issues justified a merits determination.

Conclusion

These four decisions across Canada show a consistent Canadian approach to mootness: courts generally decline to decide issues that will have no practical effect on the parties. At the same time, they retain discretion to proceed where doing so advances the public interest and the proper administration of justice.

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