What is the test for the Court of Appeal to rule on a motion brought by the Attorney General in an appeal?
Ontario, Canada
The following excerpt is from British Columbia (Child, Family and Community Service) v. S.J.B., 2006 CanLII 22106 (ON CA):
Nevertheless, in my view, this is an appropriate case for this court to depart from its usual practice and exercise its discretion to determine some of the issues raised in the appeal. The three criteria applied in deciding whether to exercise the discretion are whether there still exists an adversarial relationship, concern for conserving judicial resources and sensitivity to the court’s proper law-making function. As regards this last factor, it is important to bear in mind what was said in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at p. 362, “Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.”
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