Sheldon Blank v. The Information Commissioner of Canada, Court file T-1623-04 Federal Court, O’Reilly, J., March 1, 2005

This was an application by the Information Commissioner to strike the applicant’s application for an order in the nature of mandamus on grounds of mootness.

The applicant, Sheldon Blank, brought an application for a Mandamus Order in an effort to require the Information Commissioner to issue his report to the applicant pursuant to section 37 of the Access to Information Act. The applicant submits that his complaint has not been reported on in a timely manner. The Information Commissioner supplied the applicant with that report on February 15, 2004, rendering the application for mandamus moot, and brought an application to strike on grounds of mootness. The applicant urged the court to hear and decide his application nonetheless.

The following issue was raised in the proceeding: Should the court exercise its discretion to hear a matter that has become moot?

Three factors must be considered when determining whether the court ought to exercise its discretion to hear a matter that has become moot: 1) the ongoing adversarial relationship between the parties; 2) the concern for judicial economy; and 3) awareness for the court’s role.

With respect to the first criterion, the court concluded that issues remained between the parties in respect of other complaints the applicant made under the Act to the Office of the Information Commissioner, in addition to the commissioner’s handling of the underlying complaint in this matter. Further, the parties did not agree on whether a mandamus would ever lie against the commissioner.

However, the second and third criteria militate against deciding this moot application. With respect to the second criterion, the court noted that there must be special circumstances for the court to expend its resources on matters that have become academic, none of which are present in this application. In addition, the court noted that several of the criteria required for mandamus to issue would often fall away in a moot case: for instance, the commissioner’s legal duty to act, if any, has dissipated; the order sought could have no practical effect; other remedies under the Act have become available; and the balance of convenience cannot said to lie with the applicant as he has already received the very remedy he originally sought by way of mandamus.

As to the third criterion, the court noted that it should not intrude on the legislative function by ruling on the availability of a remedy in a moot case nor interpret legislative provisions in the absence of a proper factual context. The case would be entirely different if there were a live controversy between the parties.

The Information Commissioner’s motion to strike was allowed.