Mcnally v. R. - FCA: Crown ordered to make submissions on why appeal not moot

Mcnally v. R. - FCA:  Crown ordered to make submissions on why appeal not moot

Canada (National Revenue)  v. Mcnally (September 15, 2015 – 2015 FCA 195, Stratas JA.).

Précis:  Mr. Mcnally moved successfully in the Federal Court for an order requiring the Minister to reassess his 2012 taxation year.  The Minister did so but nonetheless appealed the order to the Federal Court of Appeal.  Mr. Mcnally advised that he would not participate in the appeal as he regarded the matter as over.  The Minister moved for directions.  Stratas JA ordered the Minister to make written submissions within 10 days on the issue of mootness.  Mr. Mcnally would have 4 days to respond if he chose to do so.  There was no order as to costs.

Decision:   Stratas JA based his decision directly on the Court’s powers to control its own processes:

[9]               The plenary power and the discretion under Rule 55 to dispense with the Rules are governed by the objectives set out in Rule 3: achieving the “just, most expeditious and least expensive determination of every proceeding on its merits.” The Supreme Court’s comments in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 now boost the importance of these objectives.

[10]           Using these powers and in pursuit of these objectives, the Court can raise the issue of mootness at any time on its own motion and can call for submissions as to whether an appeal shall continue. This often happens. For example, after reading the parties’ memoranda on the merits of an appeal, on occasion the Court perceives that the appeal may be moot and so it issues a direction asking for submissions on that issue. Depending on the circumstances, the Court may request submissions in writing before the appeal hearing to see if it can determine the matter in advance. Or the Court may ask for oral submissions to be made at the start of the appeal hearing.

[11]           In this particular case, bearing in mind the objectives of Rule 3 and desiring to end the unsatisfactory state of affairs described above—a state of affairs where a possibly moot appeal involving only one party will languish in our system for months—this Court calls for submissions from the parties on the issue whether this appeal should be dismissed on account of mootness.

[12]           Submissions in chief from the respondent are not necessary. As mentioned above, the respondent advised the Minister by letter that he would no longer participate in the appeal owing to the fact it has become moot. Helpfully, the respondent’s letter, already filed with the Court, provides clear and complete argumentation on the facts and the law as to why the appeal should be dismissed on account of mootness.

[13]           Within ten days, the Minister shall respond to the respondent’s submissions in the letter. She may do so by filing an informal letter setting out why the appeal is not moot and should still be heard.

[14]           Four days after the Minister has filed her submissions, the respondent may file reply submissions, also by way of informal letter.

[15]           The Judicial Administrator may return the matter to me for determination.

[16]           If, in preparing her submissions, the Minister agrees with the respondent that the appeal is moot and should not be heard, she may terminate this appeal by filing a notice of discontinuance under Rule 165.

There was no order as to costs.