Four Applications To Federal Travel Mandates All Struck As “Moot”

The other day, the Federal Court released its reasons for dismissing various Applications challenging air and train vaccination mandates. The ruling came from Associate Chief Justice Gagné (2022 FC 1463). The specific challenges were:

  • T-145-22: Nabil Ben Naoum
  • T-247-22: Maxime Bernier
  • T-1991-21: Shaun Rickard, Karl Harrison
  • T-168-22: Brian Peckford, Leesha Nikkanen, Ken Baigent, Drew Belobaba, Natalie Grcic, Aedan MacDonald

All of these challenges were heard together, since they cover essentially the same issues. This isn’t surprising, as it can theoretically free up other courts.

To be clear, the cases weren’t struck or dismissed based on the merits, evidence, or arguments of the case. Instead, they were struck since the orders themselves had expired. The Judge decided it wasn’t worth hearing anyway, to ward off any potential return of these restrictions.

In the ruling, it came down to 2 questions: (a) are the cases moot; and (b) if so, should they be heard anyway?

[14] The Applicants and the Respondent both agree that the applicable test on a motion for mootness is the one articulated by Justice Sopinka in Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), 1989 1 SCR 342. Unsurprisingly, they take very opposite positions on both of the two key stages as set forth in Borowski. Namely, they disagree on i) whether the issue is moot, and on ii) whether the Court should exercise its discretion to nonetheless hear the case, if it is found moot.

[15] The Respondent’s motion therefore raises the following issues:
(a) Are the issues raised by these Applications for judicial review moot; is there a live controversy?
(b) If the issues are moot, should the Court nevertheless exercise its discretion to hear the merits?

“Mootness” in the legal context means that the underlying issues have already been resolved in some way, or the circumstances have changed in a way that makes it impossible to determine. In this instance, the Federal Government argued that since the travel mandates had expired, there was no remedy to seek.

The Applicants, however, were concerned that these measures — or very similar ones — could be brought back, and it could happen at any time. They wanted this issue dealt with once and for all.

In their eyes, travel mandates were hardly “theoretical”, as they had already happened. Should the Court refuse to intervene, Ottawa would be able to reimpose them at a later date.

[20] The Applicants argue that there remains a live controversy because of statements by the Government of Canada that travel restrictions have only been “suspended”, suggesting that they may be re-implemented at any time if the COVID-19 public health situation worsens. In that sense, the Respondent’s motions would be premature. The Applicants rely on a press release issued by the Treasury Board of Canada Secretariat, statements made by Ministers at a June 14, 2022 press conference, and in an interview that the Minister of Intergovernmental Affairs gave to the CBC shortly afterwards.

[21] Firstly, the hearing of these Applications for judicial review is set for five days commencing on October 31, 2022. Since the hearing of this Motion, Transport Canada has removed the requirement to wear a mask on planes and trains and repealed the last remaining IO. In my view, the situation is as likely to improve as it is to worsen by the time the hearing of these Applications on their merits is over. The Applicants’ argument is highly speculative and does not support their position that the controversy is still ongoing.

[22] Secondly, a comment made by a Minister to a journalist, taken outside its context, does not amount to a decision by that Minister and it is no more an indication of a live controversy. Even if the Minister called what occurred in June 2022 a suspension, the reality is that all IOs/MO that had contained a vaccination mandate have legally expired and none that contain such a mandate have been reissued since June.

The ruling goes on some more, with the Judge explaining why this wasn’t worth continuing, since the orders had all lapsed.

The case was ultimately thrown out for “mootness”. The Judge declined to hear the merits anyway.

And therein lies another problem with this Court. Is there really justice when a Judge can simply pick and choose which cases they want to hear, and which ones they can decline? What exactly was the remedy that they should have sought? And where?

[48] For the above reasons, these Applications will be struck as moot. The air and rail passenger vaccine mandates were repealed, as have other related public health measures. The Applicants have substantially received the remedies sought and as such, there is no live controversy to adjudicate.

[49] There is no important public interest or inconsistency in the law that would justify allocating significant judicial resources to hear these moot Applications.

[50] Finally, it is not the role of the Court to dictate or prevent future government actions. If the air and rail vaccine mandates are re-introduced in the future, they can be properly challenged and should be weighed against the reality in which they are implemented.

Apparently, the inability of millions of people to fly and exercise their Section 6 Charter rights (mobility) isn’t a concern for the Court. After all, the mandates are gone — for now. If this isn’t worth spending judicial resources on, what exactly is?

Interestingly, the Judge says it’s not the place of the Court to dictate or prevent future government actions, but suggests that the cases can be brought back again if travel mandates are reinstated.

Suppose that does happen — and that the vaccine passport does return — what’s to stop Ottawa from temporarily pulling it (again) to ward off another challenge? Perhaps this is old fashioned, but it would be nice to see the issue resolved once and for all.

The Applicants who initiated these suits are now on the hook for the costs of losing this motion. While their initial filings were compelling, letting the orders expire then doing this was a dirty trick. It’s unclear what cost scale would be used, but the parties could very well settle it on their own.

Had a Prothonotary issued this ruling, it could be reviewed under Rule 51. But this came from a Justice, so the next step would be challenging this at the Federal Court of Appeals. There has been talk of doing this, especially in light of the Associate Chief Justice refusing to hear it altogether. We will have to see if that happens in the next few weeks. There is a 30 day time limit to file notice.

For reference, the standard for review is also available online. It addresses findings of fact, law, and mixed fact and law.


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