It’s a moot point – when an appeal offers no practical remedy

Administrative law – Decisions reviewed – Municipal boards – Judicial review – Appeals – Mootness – Procedural requirements and fairness – Jurisdiction – Failure to provide reasons – Costs – Standard of review – Correctness – Municipalities – Power

Prince Albert Right to Life Assn v. Prince Albert (City), [2020] S.J. No. 299, 2020 SKCA 96, Saskatchewan Court of Appeal, August 10, 2020, R.K. Ottenbreit, L.M. Schwann and J.D. Kalmakoff JJ.A.

This was an appeal by the Prince Albert Right to Life Association (the “PARLA”) from the dismissal of their application for review of a decision of the City of Prince Albert (the “City”) on the grounds that it was moot. The City cross-appealed from the costs order that was made against it. Both the appeal and cross appeal were dismissed.

For years the City had allowed PARLA to use its flagpole to fly its right to life flag. In 2016, the City created a new policy relating to using the flagpole (the “Policy”). Members of the community of Prince Albert opposed the flag being flown. The City’s Executive Counsel considered the community’s complaints and then referred the matter to Mayor’s office. That same day PARLA applied, pursuant to the Policy, to fly its flag for a week during May 2017. Subsequently, the Mayor informed PARLA that the City would not allow the PARLA flag to be flown as it was not a national flag or nationally recognized.

PARLA sent a letter to the Mayor requesting clarification regarding the City’s decision. The City failed to do so. PARLA applied for judicial review. Following this, the City Council passed a motion ending public use of the flagpole. The Chambers judge dismissed the application as moot and ordered costs of $6,000 against the City.  At issue was whether the Chambers judge erred in both her award of costs and her determination that the appeal was moot.

In considering the appeal, Borowski v Canada (Attorney General), [1989] 1 SCR 342 (“Borowski”) was cited for the test to determine whether an appeal is truly moot. According to Borowski, the first step is to determine if the appeal is moot. If the appeal is moot, it must be considered whether the court should none the less exercise discretion to hear the case. Discretion may be exercised in the face of an ongoing adversarial context, the importance of conserving judicial resources, and the need for the court to be sensitive to its law-making function.

First, the Chambers judge’s decision that there was no live controversy was upheld as there was no practical remedy available due to the amendment of the Policy. Although there was a breach of procedural fairness, the City’s decision making was not transparent, no reasons were given, and there was potentially a Charter breach, it was found that there was no live controversy. For all of these issues, the only appropriate remedy would be to return the matter to the City; however, given the amendment of the Policy, there was no practical remedy available.

Next, the Court addressed whether the Chambers judge erred in not exercising her discretion to determine the matter in any event. The Chambers judge’s decision was upheld as there was no adversarial context, no need to consider conserving judicial resources as it was not a case where the underlying issues would be widely applicable, and it would not settle a recurrent point of law. Furthermore, the Chambers judge’s decision was upheld that to pronounce a declaration in the absence of a concrete dispute regarding the repealed Policy could intrude into the City’s legislative function.

Lastly, the issue of costs was turned to. The Chambers judge’s award of costs was upheld as PARLA was not afforded procedural fairness, the City did not follow its own Policy, the City did not have a transparent process or provide intelligible reasons, and the City mishandled PARLA’s application.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Deanna C. Froese at dfroese@harpergrey.com.

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