Can the abolition of a policy at the basis of an argument render an issue moot?
Market Insight 20 February 2023 20 February 2023
Applying the principles for mootness and the criteria presented in a similar case, the Court of King’s Bench of Alberta decided whether to rule on the constitutionality of a vaccination policy put in place in the context of the COVID-19 pandemic.
On September 20, 2022, the Court of King’s Bench of Alberta rendered its decision in Nassichuk-Dean vs. University of Lethbridge regarding conditions for granting a declaratory judgment on a potentially moot issue.
The applicant Hailey Nassichuk-Dean—a student at the University of Lethbridge —had been unable to attend classes for a period of time due to the establishment’s mandatory COVID-19 vaccination policy. The applicant was not vaccinated, and the exemption requested on religious grounds had been denied by the University.
The applicant thus sought to obtain from the Court a Declaration that the University’s Vaccination Policy violated Section 7 of the Canadian Charter of Rights and Freedoms, as well as a Declaration that the University’s rejection of her exemption request for religious reasons breached the Alberta Human Rights Act (the “Application”). First, the University argued that the Application was a moot request, as the Vaccination Policy had been rescinded in March 2022. Second, the University argued a declaratory judgment would be inappropriate for this Application, even if the Court decided that the issue was not moot.
Further to the first argument raised by the University, the Court specified that a two-step analysis had to be undertaken based on the principles for mootness set out in Borowski vs. Canada (Attorney General). The Court indicated that it had to preliminarily determine whether there was a “tangible and concrete dispute” between the parties and whether the decision would have a practical effect on the applicant’s rights. If not, the Court would then need to determine whether it should “exercise its discretion to hear the case.”
Although the Court could offer no remedy to rectify the alleged violations nor could it grant relief for any potential damages given that the Vaccination Policy was no longer in place and that the applicant was not seeking any compensation for damage, the Court established that the Application was not a moot issue. Referring to the case law which had shown that right-violation impacts cannot always be remedied (e.g., when a period of probation or criminal proceedings have already ended), the Court found that a real controversy remained between parties as to whether the applicant’s rights had actually been violated by the Vaccination Policy.
Because of the Court’s ruling, it was unnecessary to continue with the second step of the analysis: determining whether the Court should exercise its discretion to hear the case.
Appropriate for a Declaration
When addressing the University’s second argument, the Court stated that it generally does not grant declaratory judgments if it considers the dispute to be moot, academic or without any practical effect on the resolution of outstanding issues. In this case, the Court indicated that its decision would not have any impact on the applicant’s ability to attend the University classes that she missed and that the issue had thus become highly academic.
However, the Court then examined the decision of the Court of Appeal of Alberta in Trang vs. Alberta (Edmonton Remand Centre), which stated that there are a few exceptions where the Court can agree to hear an academic issue—although this seldom happens for several reasons. These reasons include the following: parties who are not directly affected are generally not granted remedies that may impact the rights of those who are; “judicial and societal resources are limited”; declarations may lack context; and abstract declarations encourage interference in governmental and citizen affairs beyond the scope of the superior courts’ role.
Upon reviewing the case law and applying the aforementioned considerations, the Court remained concerned about rendering a decision on this constitutional issue. Indeed, the basis on which the proceedings relied no longer existed, and the decision would not affect the applicant’s academic future. In addition, the undertaking of this issue would spark a battle of experts who would debate on the vaccine’s potential adverse effects, and this would tie up resources. The underlying circumstances of this case were unique, because of the specific landscape created by the COVID-19 pandemic. Since it is unlikely for those circumstances to ever be replicated, the Court proclaimed that the decision would serve no future purpose.
As a result, the Court concluded that this was not an appropriate case for declarative relief and dismissed the Application.