Executive Summary: Key Legal and Evidentiary Issues

• Justice Christie considered two motions by the Province of New Brunswick to dismiss AIM's judicial review applications on grounds of mootness.
   
• Both applications concerned regulatory decisions affecting AIM's scrap metal facility at the Port of Saint John following a major fire on September 14, 2023.
   
• Applying the Supreme Court's framework from Borowski v. Canada (Attorney General), the court undertook a two-step mootness analysis for each application.
   
• Judicial discretion to hear a moot matter turned on whether an adversarial stake remained and whether the expenditure of judicial resources would serve a practical purpose.
   
• The motion concerning the salvage dealers license revocation was dismissed, allowing that judicial review to proceed.
   
• Conversely, the suspension-related application was found moot and dismissed because a related, unchallenged application had overtaken its issues.
   

Facts of the case

American Iron & Metal Company Inc. (AIM) operates a scrap metal recycling facility at the Port of Saint John, an operation it has run since 2011 under various authorizations from the Province of New Brunswick (PNB). On September 14, 2023, a significant fire occurred at the facility, prompting emergency orders, a community shelter-in-place, school and business closures, and air quality warnings. PNB commissioned a Task Force to investigate the incident. Following the fire, two regulatory actions were taken against AIM: first, PNB immediately suspended AIM's approval to operate under the Air Quality Regulation (Clean Air Act, NB Reg 97-133), a suspension upheld on ministerial appeal on November 15, 2023; second, on December 29, 2023, the Minister of Public Safety revoked AIM's salvage dealers license, issued under the Salvage Dealers Licensing Act (RSNB 2016, c 111). AIM filed judicial review applications challenging both decisions: the suspension review (FM-98-2025) was filed February 12, 2024, roughly two and a half months before the approval's scheduled expiry of April 30, 2024, while the license revocation review (FM-99-2025) was filed March 27, 2024, about three months before the license's scheduled expiry of June 30, 2024. A third, separate application (FM-100-2025), not subject to any mootness motion, challenges the Minister's May 9, 2024 refusal to renew AIM's approval to operate. PNB brought the present motions arguing that, because both the approval and the license had since expired on their own terms, the underlying applications no longer presented a live controversy and should be dismissed as moot.

Policy and legislative provisions at issue

The suspension application engages the Air Quality Regulation under the Clean Air Act (NB Reg 97-133), which governed AIM's approval to operate its metal shredder and related recycling operations. The license revocation application engages the Salvage Dealers Licensing Act (RSNB 2016, c 111), under which AIM's license ran from July 1, 2022 to June 30, 2024. Neither statute was substantively interpreted on this motion; rather, the court's analysis centred on the common law doctrine of mootness as articulated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, which asks first whether a live controversy remains and, if not, whether the court should nonetheless exercise discretion to hear the matter.

Reasoning and analysis

The court applied the two-step Borowski test to each application separately, noting that although the underlying legal principles are shared, their application to different facts need not yield the same result. On the license revocation matter, the court found that AIM retained an adversarial stake because the revocation may have deprived it of business opportunities attaching to a licensed operator for the balance of the license term, and that declining to hear the matter risked signalling that a Minister could interfere with a license holder's interests during the license's operative term without recourse to review simply because the term later expired. The court drew on Ramizi v. College of Immigration and Citizenship Consultants, 2025 FC 692, for the principle that the unavailability of an effective remedy is conceptually distinct from mootness, and on the same case's caution against permitting public decision-makers to "manufacture" mootness in a way that shields their decisions from scrutiny. The court also noted the significant public interest surrounding the September 14 fire and its aftermath, referencing the early involvement of a proposed community intervenor as evidence of that interest. By contrast, on the suspension matter, the court found that the issues raised had been effectively eclipsed by the unrelated and unchallenged third application (FM-100-2025) concerning the refusal to renew the approval to operate, making the suspension issues academic and the best use of scarce judicial resources to lie in proceeding with FM-100-2025 instead. The court referenced New Brunswick (Minister of Health & Community Services) v. G.(J.), [1999] 3 S.C.R. 46, and the discretionary nature of judicial review recognized in Strickland v. Canada (Attorney General), 2015 SCC 37, as well as commentary from David Mullan's Administrative Law text on preserving judicial resources for controversies that serve a useful purpose.

Ruling and overall outcome

The court reached a split result on the two motions. The motion to dismiss the judicial review of the salvage dealers license revocation (FM-99-2025) was dismissed, meaning AIM's challenge to that revocation may proceed on its merits. The motion to dismiss the judicial review of the suspension of the approval to operate (FM-98-2025) was granted, meaning that application was dismissed as moot in favour of PNB, with the court directing that the overlapping issues instead be addressed through the pending FM-100-2025 application. Given this mixed result, the court made no order as to costs.