In Hernandez v. Hernandez, 2021 ONSC 106, the Court of Appeal for Ontario considered the issue of whether litigation involving the personal care of a person is rendered moot after that person dies.

In 2017, Cheri Hernandez commenced an application seeking an order terminating the authority of her brother, Norman Hernandez, to act as the guardian of personal care of their mother, Anna Hernandez. Cheri’s application was dismissed in 2019 and she appealed the decision. However, Anna died on March 1, 2020, before the hearing date. In fact, the appeal was not heard until February 11, 2021, almost a year after Anna’s death.

At the hearing of the appeal, Norman argued that the appeal should be dismissed as moot. His sister Cheri insisted that the appeal should be heard because a “live controversy” remained, notwithstanding Anna’s death. In the alternative, Cheri argued that the Court should exercise its discretion to hear the appeal.

The Court disagreed as to the existence of a “live controversy”. The relief sought in the appeal related to whether Norman or Cheri should be responsible for the personal care of Anna. As Anna was deceased, that relief was no longer available and the appeal had no practical purpose.

Cheri further argued that the appeal should be heard because it had implications for a related passing of accounts application between the parties. The Court also disagreed, viewing this as an attempt by Cheri to set aside a finding of fact made by the application judge in order to prevent that finding from being used in the passing of accounts application.

The Court also declined to exercise its discretion to hear the appeal notwithstanding its mootness for the following reasons: (1) the hearing would have no practical effect on the rights of the parties; (2) the appeal did not raise issues of public importance but was only of importance to the parties themselves, with issues that were largely fact-based involving an area of law that is well-settled; (3) it was neither in the interests of justice nor an appropriate use of judicial resources to hear the appeal simply to decide which party should be responsible for the costs of the underlying application, or to bind a judge in another related proceeding between the parties.

Cheri’s appeal was therefore dismissed, and she was ordered to pay costs personally (costs were not to be paid out of Anna’s estate).

Take Away

In this time of scarce judicial resources, appellate courts will not be inclined to hear moot appeals that are of no public policy importance but are only of personal interest to the parties themselves. Moreover, if an appellant insists on proceeding with a moot appeal simply to gain a strategic advantage in a related proceeding, and the appeal is dismissed, the appellant may find him or herself personally liable for costs (in cases where there may be another potential source of payment of costs, such as an estate).