The application was for a judicial review of a decision of the Registrar refusing Ms. Moses’s registration as an Indian pursuant to section 6(1)(a) of the Indian Act. The applicant’s judicial review application was struck as moot, since she had already registered pursuant to section 6(1)(f)of the Act. In determining the issue the court considered (1) registration pursuant to 6(1)(f) of the Act provided the applicant with all of the same benefits as registration pursuant to 6(1)(a) of the Act; (2) the judicial review was not an efficient use of scarce judicial resources; and (3) in the absence of a dispute having an effect on the rights of parties a Court decision would be an intrusion on the role of the legislative branch of the government.

Administrative law – Aboriginal issues – Registration as an Indian – Judicial review application – Striking out – Mootness – Compliance with legislation

Moses v. Canada, [2003] F.C.J. No. 1835, Federal Court, December 3, 2003, Hargrave, Prothonotary

Ms. Moses was confirmed as an Indian pursuant to section 6(1)(f) of the Indian Act. She filed an application for a judicial review of the Registrar’s decision to register her as an Indian pursuant to section 6(1)(a). Practically speaking, registration under both sections provided the same rights; however, registration under s. 6(1)(a) extends only to the illegitimate sons of Indian fathers and not to the illegitimate daughters. In spite of the fact that registration under both sections provided the same rights, Ms. Moses maintained that she had received a lesser class of registration due to discriminatory legislation.

As a decision would have no practical effect on the applicant’s case, the court considered whether to strike out the application as moot. The court noted that the Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995) 1 F.C. 588 cautioned against striking out a judicial review application except in very exceptional circumstances. The court explained that there is a general policy that was pronounced in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 that the court will decline to decide a case that raises hypothetical or abstract questions. The court noted that this has a parallel in judicial review as a court should not grant declaratory relief where the dispute is academic in the sense of a complete absence of any practical effect. In concluding that the application was moot, the court considered the three points set out by Mr. Justice Sopinka in Borowski. Firstly, the existence of an adversarial context. Since the substance of Ms. Moses’s registration would not change regardless of the outcome of the application, the necessary adversarial context did not exist. Secondly, as the matter was purely academic, the case was not a good use of scarce judicial resources. Thirdly, for the Court to come to a decision would be an intrusion into the role of the legislative branch of the government.

In dismissing the judicial review for mootness, the Court held that it had not been convinced of any reasons for or utility in the court expending resources to review the decision of the Registrar, which granted Ms. Moses the status and rights of an Indian.

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