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Coming on the heels of this question:

It seems like the action for possession would be moot under these circumstances, prohibiting the court from entering judgment.

Accordingly, we ordinarily dismiss as moot an appeal challenging an eviction when the tenant was removed from or otherwise vacated the premises.

If a court enters a "moot" judgement, can one appeal the judgement on grounds that it should have never been entered in the first place?

Is a moot judgement equivalent to saying that the court lacked jurisdiction to enter the judgement at all and therefore should be appealable?

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    Based on comments on one of the answers, I would recommend either rewording this question or just asking a new one. The question sounds like you're asking whether a decision that a case is moot can be appealed. However, a comment suggests that you're intending to ask whether a judgment can be appealed on the grounds that it was moot, which is a completely different question. Since there are already multiple answers addressing the question that seemed to be asked here, it might be better to ask a new question than to edit this one.
    – reirab
    Apr 3, 2023 at 7:57
  • @reirab law.stackexchange.com/questions/91210/…
    – S.O.S
    Apr 3, 2023 at 16:36

3 Answers 3

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Yes, you can appeal

Deciding that an issue is moot is a matter of law. Issues of law are apealable.

So, from your example, if the evidence showed that the tenant was still at the premises and, for whatever reason, the court misinterpreted or misunderstood that evidence, then there would clearly have been an appealable error of law in deciding that the issue was moot.

However, if the evidence showed the tenant had left the premises and the court decided on that basis the case was moot they would have clearly been right and an appeal would fail.

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  • In this case the opposite occurred. The tenant vacated the premises & returned the keys to the landlord. However, the court still entered a judgement for possession (JOP) - despite evidence showing that the landlord repossessed the premises. Would the tenant have the right to appeal the JOP based on the fact that he already vacated the premises prior to the JOP and the JOP was thus moot when it was entered?
    – S.O.S
    Apr 3, 2023 at 4:43
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    Why does it matter?
    – Dale M
    Apr 3, 2023 at 5:53
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    @DaleM I suppose the tenant doesn't want a JOP on their record when they actually followed the contract and moved out as expected. Apr 3, 2023 at 13:51
  • This would not be a matter of appeal, I think, it would be a matter of the trial court amending the judgement.
    – Riking
    Apr 4, 2023 at 3:41
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Mootness is not a jurisdictional issue for superior courts in Canada. Instead, mootness is a discretionary doctrine reflecting a desire to preserve an adversarial context and a concern for judicial economy. Even if an matter is moot in that it fails to present a "live controversy," a court may nonetheless decide the issue if the circumstances warrant. See generally Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

Therefore, that a lower court addressed a moot issue is not a ground for appeal. In fact, if the issue was actually moot, it will continue to be moot on appeal, and that may be a reason for the court of appeal to decline to entertain any questions on the merits.

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Assuming that the determination that the judgment was moot is correct, you cannot appeal it. Under the circumstances explained, it would indeed be moot.

The fact that the judgment became moot before appeals were exhausted, however, may prevent the judgment from having "collateral estoppel" effect, which is to say that the factual and legal determinations necessary to make that ruling may not be binding in any related case.

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