ANDREW STEVENS FLORENCE STRATTON APPLICANTS - v. -, 2022 SKKB 270

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 270 Date: 2022 12 14 Docket: KBG-RG-02714-2022 Judicial Centre : Regina BETWEEN: ANDREW STEVENS FLORENCE STRATTON APPLICANTS - and - NICOL (“NIKI”) ANDERSON, REGINA CITY MANAGER RESPONDENT Counsel: Daniel S. LeBlanc for the applicants M. Alishahi and Shawna L. Sparrow for the respondent JUDGMENT MORRALL J. DECEMBER 14, 2022 INTRODUCTION [ 1 ] This matter is not a debate about the public value of municipalities and cities addressing homelessness.

In fact, I do not think that there can be any debate that a city providing care and appropriate housing to those marginalized people in need is intrinsically a good idea. [ 2 ] What is before the court is the application of Andrew Stevens, a Regina City Councillor, and Florence Stratton, a citizen and taxpayer in the city of Regina, collectively [applicants], who filed an originating application dated November 22, 2022, where they seek a writ of mandamus compelling Nicol Anderson, the Regina City Manager [City Manager or respondent] to include a $24.9 million line item into the proposed 2023 Regina city budget as per the direction of Motion MN22-3 and costs. [ 3 ] While the legal issues involved are complex, the factual background is not.

FACTS [ 4 ] On March 16, 2022, Councillor Daniel LeBlanc (also counsel for the applicants on this application) and Councillor Andrew Stevens presented Motion MN22-3 which requested that administration be directed to include full operational funding for homelessness in the 2023 proposed budget.

[ 5 ] On June 15, 2022, the motion was unanimously passed at City Council and the meeting minutes were later adopted. The minutes read as follows: 22. At the June 15 Regular Meeting there were a number of delegations present to speak to the issue of homelessness in Regina. The June 15, 2022 meeting minutes reflect that Motion MN2203 (the “ Motion ”) was passed by Council as follows: Councillor Dan LeBlanc moved, seconded by Councillor Cheryl Stadnichuk that Administration be directed to include the following in the 2023 proposed budget: 1.

Full operational budget to solve homelessness throughout the City using a housing first, supportive housing model. This draft funding to be clearly demarcated in a line item of its own. 2. Any supplemental report required to explain the costing of point 1 above. a.

This report will provide the estimated number of chronically homeless people in Regina, the anticipated cost per individual to provide supportive housing to these individuals, the anticipated timeline to house these individuals if the draft funding were approved, and the means by which the City would deploy the funding if approved (through working with service partners). b. This report will also describe the financial cost of continued inaction on this issue.

This analysis will outline the current, ongoing costs of unaddressed homelessness throughout the City. (Affidavit of Nicol Anderson sworn December 6, 2022) [ 6 ] During an executive meeting on September 21, 2022, Deputy Mayor Lori Bresciani [Deputy Mayor] advised City administration that when the motion was passed, Council understood that the draft funding would be included in budget discussions but that it would not be included as a separate line item. Further, the Deputy Mayor expressed concern that if Council were to go ahead with the increase, the general public would think that Council was out of touch.

Jim Nicol, the acting City Manager, thereafter stated that he felt the line item should be in the proposed 2023 budget given the resolution of June 15, 2022. [ 7 ] On November 1, 2022, Nicol Anderson, began her employment as the City Manager effective for a period of five years. [ 8 ] As part of preparing for the release of the proposed 2023 budget, she reviewed video recordings of the June 15, 2022 meeting and the meeting of the executive committee on September 21, 2022 among many other matters. [ 9 ] As a result of a number of reasons outlined in the City Manager’s affidavit sworn December 6, 2022, she included the draft funding to address homelessness in a line item of its own in the budget book but not within the proposed budget itself. [ 10 ] On November 21, 2022, the City Manager presented her proposed 2023 budget to members of City Council.

The draft 2023 budget was presented in the form of a bound and tabbed budget book.

As part of the budget book, the City Manager included comments acknowledging Motion MN22-3 and indicated that “these expenditures and mill rate increases are not included in Administration’s proposed 2023-24 Budget recommendations” due to a desire to recommend a “balanced budget” and concerns that matters be “affordable to taxpayers”. [ 11 ] However, the budget book contained an extensive review of the various costs that would be associated with implementing such a motion. [ 12 ] On November 22, 2022, the applicants applied for mandamus to compel the introduction of funding for homelessness as a line item in the 2023 proposed budget and costs against the City Manager. [ 13 ] The proposed Regina city budget is scheduled to be discussed and considered at the December 14, 2022 Council budgetary meeting, with additional discussions on December 15 and 16, 2022 if necessary.

STATUTORY FRAMEWORK [ 14 ] The following statutes, bylaws and employment contract clauses are relevant in assessing the matter: The Cities Act , SS 2002, c C-11.1 City to act through council 5(1) Unless otherwise provided by any other provision of this or any other Act, a city is required to act through its council.

(2) If required to do so by this Act, a council shall exercise a power through the passing of bylaws.

(3) With respect to powers other than those mentioned in subsection (2), a council may exercise its powers by passing bylaws or resolutions. … Commissioner or manager 84(1) Every council shall establish a position of administrative head of the city, that may be called City Commissioner or City Manager.

(2) The commissioner or manager shall perform the duties and may exercise the powers and functions that are assigned to a

commissioner or manager: (

a) by this and other Acts; or (

b) by council. … Actions in public 93(1)

An act or proceeding of a council is not effective unless it is authorized or adopted by a bylaw or a resolution at a duly constituted public meeting of the council.

(2) An act or proceeding of a council committee is not effective unless it is authorized or adopted by a resolution at a duly constituted public meeting of the committee or council.

(3) Everyone has a right to be present at council meetings and council committee meetings that are conducted in public unless the person presiding at the meeting expels a person for improper conduct. … Matters that must be dealt with by council 101(1) No council shall delegate: (

a) its power to make bylaws; … (

d) its power to adopt budgets pursuant to

section 128; … (

q) its power to appoint, suspend or dismiss a commissioner, manager or clerk; … Adoption of budgets 128(1) A council shall adopt an operating and a capital budget for each financial year.

(2) No council shall pass a property tax bylaw with respect to a financial year unless it has adopted the operating and capital budgets for that year. … Offences applicable to members of council, commissioners, managers, officials 339 No member of council, commissioner or manager or other city official shall: (

a) fail to discharge the duties of office imposed by this Act or any other Act or any bylaw; (

b) sign any statement, report or return required by this Act or any other Act or any bylaw knowing that it contains a false statement; (

c) fail to hand over to a successor in office, or to the persons designated in writing by the council or the minister, all money, books, records, documents, accounts and other things belonging to the city; (

d) impede or attempt to impede a member of council, commissioner, manager or other city official from lawfully discharging his or her obligations or duties imposed pursuant to this Act or any other Act or any bylaw; or (

e) prevent or attempt to prevent a member of council, commissioner, manager or other city official from lawfully discharging his or her obligations or duties imposed pursuant to this Act or any other Act or any bylaw. The City Manager’s Bylaw , Bylaw No. 2003-70 Administrative Head of the City 6. The City Manager shall: (

a) be the administrative head of the City; (

b) perform the duties and exercise the powers and functions assigned to the City Manager by the Act, any other Acts, or by Council; (

c) be directly accountable and responsible only to Council for the discharge of the powers, duties and functions assigned to the position. …

Limitation on Authority 7. The powers, duties and functions conferred on the City Manager pursuant to this bylaw shall not be interpreted to authorize the CityManager to carry out or direct any action that would encroach upon the legislative powers of Council. 8. Without limiting the generality of

section 6, the City Manager shall: … (

b) implement the policies, programs and decisions of Council; … (

e) prepare and present to Council: (

i) the operating budgets; (ii) the capital budgets; (iii) the annual audited financial statements; (iv) the public accounts (

f) advise, inform, report and make recommendations to Council and its Committees concerning policies or programs which may benecessary to administer the City; Employment Agreement: 3(2) The Employee shall well and faithfully fulfill and perform all of the duties of the City Manager, including the powers, duties,accountabilities and functions of the City Manager provided for pursuant to The Cities Act, and as contained in The City Manager’sBylaw, as well as any duties subsequently assigned to her (collectively, the “Employment Duties”)… ISSUES [15] The issues to be determined are as follows: 1.

What is the legal test for mandamus? 2. Does the respondent owe a public legal duty? 3. Does the respondent owe a legal duty to the applicants? 4. Was there a clear right to performance of that duty? 5. Is the duty discretionary and, if so, which rules apply? 6. Are there effective adequate remedies available to the applicants, is there a beneficial effect for the applicants andon the balance of convenience, should mandamus issue? 7. What costs are appropriate?

THE LAW [16] Before reviewing the issues, I note that normally the court would insist on compliance with Practice Directive#9 and have the facts, record and issues sorted before proceeding to a full hearing on the merits. Given that this matter was heard andargued on December 13, 2022 in regular chambers and Council meets to discuss the budget on December 14, 2022, a decision is urgentlyrequired and therefore the reasons provided will be less fulsome as a result.

The legal test for mandamus [17] As noted in the applicant’s written argument, mandamus has been described as follows in Dolan v Moose Jaw(City), 2008 SKCA 170 at para 19, 314 Sask R 301: [19] Mandamus is an order issued in the name of the court to compel performance of a public legal duty. It has long been the meansby which private litigants have required governmental authorities to discharge their obligations.

However, that said, mandamus remains adiscretionary remedy and one which is available only in specific circumstances. [18] Both counsel agree that the test for mandamus was set by the Federal Court of Appeal in Apotex Inc. v Canada(Attorney General), (FCA), [1994] 1 FC 742 (WL) [Apotex] (affirmed (SCC), [1994] 3 SCR 1100) atpara 55: 55 Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in

the extant jurisprudence of this Court (see generally O'Grady v. Whyte, (FCA), [1983] 1 F.C. 719 (C.A.) at 722-23,citing Karavos v. Toronto (City), (ON CA), [1948] 3 D.L.R. 294 (Ont. C.A.) at 297; Mensinger v. Canada (Minister ofEmployment & Immigration), (FC), [1987] 1 F.C. 59 (T.D.) at 66.

(1) There must be a public legal duty to act: Canada (Minister of Employment & Immigration) v. Hudnik, (FCA),[1980] 1 F.C. 180 (C.A.); Jefford v. Canada (Ministry of Consumer & Corporate Affairs), (FCA), [1988] 2 F.C. 189(C.A.); Winegarden v. Public Service Commission (1986), 5 F.T.R. 317 (T.D.); Rossi v. R., (FC), [1974] 1 F.C. 531(T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), (FC), [1989] 3 F.C. 309 (T.D.),affirmed (1989), 38 Admin. L.R. 138 (Fed. C.A.); Bedard v. Canada (Correctional Service), (FC), [1984] 1 F.C. 193(T.D.); Carota v.

Jamieson, (FC), [1979] 1 F.C. 735 (T.D.), affirmed (FCA), [1980] 1 F.C. 790(C.A.); and Nguyen v. Canada (Minister of Employment & Immigration), Doc. A-120-91 (Fed. C.A.), judgment dated July 12, 1993, notreported [reported (1993), 16 Admin. L.R. (2d) 1].

(2) The duty must be owed to the applicant: Rothmans of Pall Mall Canada Ltd. v. Minister of National Revenue, (FCA), [1976] 2 F.C. 500 (C.A.); Distribution Canada Inc. v. Minister of National Revenue, (FC), [1991] 1 F.C. 716(T.D.), affirmed (FCA), [1993] 2 F.C. 26 (C.A.); Secunda Marine Services Ltd. v. Canada (Minister of Supply &Services) (1989), 27 F.T.R. 161 (T.D.); and Szoboszloi v. Canada (Chief Returning Officer), [1972] F.C. 1020 (T.D.); see also Jefford v.Canada, supra.

(3) There is a clear right to performance of that duty, in particular: (

a) the applicant has satisfied all conditions precedent giving rise to the duty; O'Grady v. Whyte, supra; Hutchins v. Canada (NationalParole Board), A-333-93 (Fed. C.A.) judgment dated July 7, 1993, not reported [reported (FCA), [1993] 3 F.C. 505];and see Nguyen v. Canada (Minister of Employment & Immigration), supra; (

b) There was (

i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright;and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; see O'Grady v. Whyte, supra, citingKaravos v. Toronto (City), supra; Bhatnager v. Canada (Minister of Employment & Immigration), (FC), [1985] 2F.C. 315 (T.D.); and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), supra.

(4) Where the duty sought to be enforced is discretionary, the following rules apply: (

a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" ordemonstrate "flagrant impropriety" or "bad faith"; (

b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or"unfettered"; (

c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations; (

d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and (

e) mandamus is only available when the decision-maker's discretion is "spent", i.e., the applicant has a vested right to the performanceof the duty. See Canada (Restrictive Trade Practices Commission) v. Canada (Director of Investigation & Research, Combines Investigation Act), (FCA), [1983] 2 F.C. 222 (C.A.), reversing (FC), [1983] 1 F.C. 520 (T.D.); Carota v. Jamieson ,supra; Apotex Inc. v. Canada (Attorney General) January 19, 1993, unreported, supra; Maple Lodge Farms Ltd. v. Canada, (FC), [1980] 2 F.C. 458 (T.D.), affirmed (FCA), [1981] 1 F.C. 500 (C.A.), affirmed (SCC),[1982] 2 S.C.R. 2; Jefford v.

Canada, supra; Merck & Co. v. Sherman & Ulster Ltd. (1971), (SCC), 65 C.P.R. 1 (Ex.Ct.), affirmed (1972), 5 C.P.R. (2d) 2 (note) (S.C.C.); Distribution Canada Inc. v. Minister of National Revenue, supra; and Kahlon v.Canada (Minister of Employment & Immigration), [1986] 3 F.C. 386 (C.A.).

(5) No other adequate remedy is available to the applicant: Carota v. Jamieson, supra; Maple Lodge Farms Ltd. v. Canada, supra;Jefford v. Canada, supra; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561; and see Canada (AuditorGeneral) v. Canada (Minister of Energy, Mines & Resources), (FCA), [1987] 1 F.C. 406 (C.A.), affirmed (SCC), [1989] 2 S.C.R. 49;

(6) The order sought will be of some practical value or effect: Friends of the Oldman River Society v. Canada (Minister of Transport), (FCA), [1990] 2 F.C. 18 (C.A.), per Stone J.A. at 48-52, affirmed (SCC), [1992] 1 S.C.R. 3, per LaForest J. at 76-80; Landreville v. R., [1973] F.C. 1223 (T.D.); and Beauchemin v. Canada (Employment & Immigration Commission)(1987), 15 F.T.R. 83 (T.D.).

(7) The Court in the exercise of its discretion finds no equitable bar to the relief sought: Penner v. Ontario (Electoral BoundariesCommission), (FC), [1976] 2 F.C. 614 (T.D.); Friends of the Oldman River Society v. Canada (Minister ofTransport), supra.

(8) On a "balance of convenience" an order in the nature of mandamus should (or should not) issue. Public Legal Duty [19] The applicants argue that there exists a public legal duty for the respondent to include the line item in theproposed budget given that The Cities Act, The City Manager’s Bylaw and democratic principles require the City Manager to implementthe decisions which City Council makes.

[ 20 ] The respondent argues that, as an employee of the City who serves and reports to Council, the City Manager’s duties are private employment duties rather than public duties in the context of a city manager preparing and presenting a proposed budget. They rely on s. 84 of The Cities Act , s. 6 of The City Manager’s Bylaw and clause 3(2) of the City Manager’s employment agreement. [ 21 ] From my review of the law, there are no cases that are on point with respect to the status of this issue.

However, there are some decisions that provide some implicit guidance. [ 22 ] In Baker v Sherwood No. 159 (Rural Municipality) , 2015 SKQB 301 , 483 Sask R 48 [ Sherwood ], the court said as follows: RE: 6. Does the Bylaw illegally delegate authority to the Chief Administrative Officer contrary to ss. 127(o)? [80] The applicants submit that Provisions 4 c. and d. of the Bylaw are illegal in that the delegation of authority to the Chief Administrative Officer is contrary to the express wording of the Act [ The Municipalities Act , SS 2005, c M-36.1 ], the scheme of the Act and the object of the Act . [81]

Section 127 provides as follows: 127 No council shall delegate: . . . (

o) its power to set the remuneration for members of council and for members of council committees and other bodies established by the council pursuant to

section 81; ... [82] Other sections of the Act have some relevance. [83]

Section 111 outlines the duties of the administrator of the municipality. Subsection (2)(

j) states that: 111(2) The administrator shall ensure that: . . . (

j) the funds of a municipality are disbursed only in the manner and to those persons that are directed by law or by the bylaws or resolutions of the council; ... [84]

Section 92 stipulates that councillors have certain duties. These include the duty: 92 . . . (

d) to ensure that administrative practices and procedures are in place to implement the decision of counsel; . . . (

f) to maintain the financial integrity of the municipality; ... [85]

Section 159 states that: 159 A municipality may only make an expenditure that is: (

a) included in its budget or otherwise authorized by its council; (

b) for an emergency; or (

c) legally required to be paid. [86] Section 192(1) provides that: 192(1) A member of council who knowingly makes an expenditure that is not authorized pursuant to

section 159, or who knowingly makes an investment that is not authorized pursuant to

section 160, is liable to the municipality for the expenditure, investment or amount spent, as the case may be. [87] The issue of delegation within municipal law is governed by the maxim delegatus non potest delegare , translated as "a delegate cannot delegate" ( Rogers [Ian MacF. Rogers, The Law of Canadian Municipal Corporations , loose-leaf (2007-8) 2d ed (Toronto: Thomson Carswell, 2007)] at 381).

In other words, in the absence of express statutory authority, a municipal council cannot assign, to any other individual or agency, any legislative or discretionary power with which it has been vested ( Rogers at 381). To determine the validity of a delegation of power by a municipal council, the courts will look for an express grant of authority to delegate (Stanley M. Makuch, Neil Craik & Signe B. Leisk, Canadian Municipal and Planning Law , 2d ed (Toronto: Thomson Carswell, 2004) at 106).

In the absence of this authority, there is a presumption against delegation ( Canadian Municipal and Planning Law ). [88] The latin maxim that governs this area, however, is not absolute; courts have determined that administrative authority may be delegated ( Canadian Municipal and Planning Law at 107). This approach is reflected in a decision of the Supreme Court of Canada,

where the court cites with approval: "In Meredith and Wilkinson's Canadian Municipal Manual at p. 265, it is said "The exercise of adiscretionary power vested in a council cannot, in the absence of statutory authority, be delegated. A council may, however, delegate toan officer or functionary merely ministerial matters." (Vic Restaurant Inc. v. Montreal (City) (1958), (SCC), [1959]S.C.R. 58 (S.C.C.) at 76-77). [89] This begs the question: what matters are "merely ministerial"?

Rogers suggests that "Powers and functions which do not involvethe making and determining of policy, such as the issuance of permits upon certain conditions stipulated by by-law, are treated asministerial and can therefore be delegated.

The courts lean towards enlarging the discretion which may be assigned to a subordinate bodyor official, but are insisting upon council spelling out in by-law the standards governing the exercise of discretion." [footnotes omitted](at p. 382). [90] Where the authority being granted by a municipality involves tasks or decisions which do not adjudicate or determine rights, andwhere the task or decision does not involve the exercise of a great deal of discretion, policy or legislative action on the part of the bodyreceiving the authority, then the delegation has generally been held to be valid. [91] In R. v.

Bridge (1952), (SCC), [1953] 1 S.C.R. 8 (S.C.C.), the Supreme Court of Canada upheld a bylaw thatgranted an administrative clerk the right to grant extended-hour permits to gas stations as it was within council's authority to createbylaws on the issuing of permits and the bylaw was of sufficient specificity such that the duties of the clerk were merely administrative innature (at p. 12). The court did, however, sever a provision of the bylaw that gave the clerk the power to revoke permits based on thesubjective determination that occupiers failed to keep their shops open as authorized.

Cartwright J. said the following, at p. 13: ... It is within the powers of the Council to prescribe a state of facts the existence of which shall render an occupier ineligible to receive apermit for a stated time; but express words in the enabling Statute would be necessary to give the Council power to confer on anindividual the right to decide, on such evidence as he might find sufficient, whether or not the prescribed state of facts exists and thereare no such words. ... [92] In R. v. Joy Oil Co. (1963), (ON CA), 41 D.L.R. (2d) 291(Ont.

C.A.) the court held that a bylaw that requiredthe installation of fire extinguishing equipment as directed by the fire chief was a proper delegation of power; the delegated power wasdeemed administrative in nature. The bylaw was worded as follows: Every wholesale storage depot, port terminal, and other property, where flammable liquids are stored in bulk storage shall be providedwith foam fire-extinguishing equipment and such quantities of foam-producing materials ready for immediate use as may be directed bythe Chief of the Fire Department. [93] In R. v. Sandler (1971), (ON SC), 21 D.L.R. (3d) 286 (Ont.

C.A.) the court held that the bylaw, includedbelow, was deemed to be an improper delegation of power as it did not contain the standards that municipal council expected to beobserved (at p. 289): ... the Chief shall have power: . . . (

f) to inspect the fire protection equipment in any premises and to make such orders for the installation, repair or replacement of fireprotection equipment as he deems necessary; ... [94] It would appear to be clear from the sections of the Act quoted supra and s. 151 quoted earlier that council bears the directresponsibility and authority for financial decisions and expenditures. The CAO must carry out the directions of council but Bylaw 14/17leaves significant discretion in his hands which is contrary to the scheme of the Act.

The CAO, an employee who reports to council, mustdecide whether the legal fees, costs or damages arose from an action or proceeding; whether the action or proceeding arose from acts oromissions of councillors in the course of their duties; whether the acts or omissions of councillors were done or made in good faith with aview to the best interests of the RM; whether the legal fees, costs and/or damages are/were not already covered by the RM's insurance;and lastly whether the legal fees, costs and/or damages are/were reasonable. [95] I would accordingly find that Bylaw 14/17 illegally delegates authority to the CAO. [23] While this decision arose in the context of a Chief Administrative Officer of a rural municipality being delegatedpowers through a bylaw to pay certain councillors’ legal bills, it is noteworthy that the position of Chief Administrative Officer isanalogous to that of a city manager.

This excerpt notes the limited power administrative personnel possess and the fact that they are anemployee of council with council having the direct responsibility and authority with respect to issues related to finances. [24] The decision of Whitehorse (City) Board of Variance v Whitehorse (City) (1991), (YK CA), 86 DLR (4th) 482 (WL) (YK CA) is also instructive. I reproduce the following paragraphs: [8] After Mr. Thick received the letter from the chief administrative officer declining to comply, he and the board of variance joinedin the petition for mandamus and ancillary relief.

To this the city filed a reply and counter-petition, and Canada Post filed a reply. Duringthe hearing before Mr. Justice Maddison, Canada Post went into occupation of the building. It is said to have been agreed by all partiesthat this would not prejudice the outcome of the proceeding, but we were not told what was intended to be the legal effect of thisconcession. [9] Mr. Justice Maddison found that Mr. Thick had status to appear before the board of variance, and that he had brought his appealto the board in time, but held that neither he nor the board had standing to petition the court. [10] Mr.

Justice Maddison found that the board had jurisdiction to hear Mr. Thick's appeal and to reach the decision that it did, butthat it did not have authority to make an order binding on the city's chief administrative officer. The judge found the decision of the

board not patently unreasonable, and that in the absence of appeal to the municipal board its decision — as opposed to the order directedto the city's chief administrative officer — was binding on the city. He went on to grant certiorari to quash the order for want ofjurisdiction.

With respect to Canada Post Corporation, the judge concluded that it had not waived Crown immunity and was entitled tosuch immunity, and that no relief could be given against it. [11] In the result, certiorari was granted to the city on its counter-petition to quash the order of the board — but not to quash theboard's decision — and the petition of Mr. Thick and the board was dismissed as against all parties. [12] Mr. Thick alone appeals to this court. He asserts that the judge erred in concluding (

i) that the board did not have jurisdiction toissue its order to the chief administrative officer, (ii) that he did not have any standing to petition the court, and (iii) that the decision ofthe board did not bind Canada Post.

The city has not appealed the finding that the board's decision is binding on it, nor the resultingdismissal of its claim for certiorari to quash the decision. … [17] The judge held that while the Municipal Act required that council appoint a board of variance, it did not require the city to givethe board power to issue orders to the city or its employees, and that it would be unreasonable to infer that the city had granted suchpower, citing from Napier v. Winnipeg (City) (1960), (MB KB), 67 Man.

R. 322 (Q.B.), the statement (at p. 328):"Council cannot be subservient to the body it created.” … [23] Should the legislature or city council be taken, then, to have granted the board such a power by implication? [24] The question seems to me to answer itself. If a statute expressly grants power to make orders to certain public authorities, and notto others, a court will have great difficulty in concluding that the legislature should by implication be taken to have granted such powersto those others also.

It is argued that it would be pointless to grant jurisdiction to make a decision binding on the city without power todirect the city to carry the decision into effect. That does not, however, seem to me to follow, particularly having in mind that the city isrun by an elected municipal council which has discretion whether or not to enforce the by-laws and regulations. [25] It seems possible, if unlikely, that the territorial legislators did not consider a situation such as that which faced the court in thiscase.

But can we say that had the legislators thought about the matter, they would necessarily have given the board power to direct thecity's officials to make "stop work" orders? Perhaps they would have, but I think it is just as likely that the legislature would haveregarded the matter as one for city council itself to decide.

It seems to me impossible to read into the zoning by-law an intention toempower the board in such circumstances as these to give direction to city employees to issue orders which others would be obliged toobey; there is simply nothing from which such an intention can be implied. [26] I find no basis for concluding that the board has the power for which the appellant contends. [27] It may, of course, be that the city cannot enforce a decision which the board has overruled on appeal, or refuse a permit whichthe board has said ought to have been issued, but I conclude that, as with its own by-laws and decisions, council is left free to decidewhether or not to take action to enforce decisions of the board against other parties. [25] The basis for including this rather obscure decision is to again note the supremacy of City Council with respectto decision making and the limited powers that employees and managers have with respect to those decisions. [26] The applicants rely on decisions such as Harpold v Saskatchewan (Corrections and Policing), 2020 SKCA 98[Harpold] and Mann v Regina (City) (1989), (SK CA), 81 Sask R 256 (CA) [Mann] to infer that the manager is apublic official with public duties.

However, Harpold dealt with the tort of misfeasance in public office and Mann dealt with severancepay and reasons for dismissal, both matters with completely different issues. [27] It is noteworthy that of the many cases I reviewed with respect to mandamus in a non employment law context,almost all involved the municipality or the city being the party involved and not any of the employees. This would make sense as citycouncil is the elected engine driving the decisions through which the city runs.

The employees including the City Manager (or ChiefAdministrative Officer in the case of a municipality) are delegated “ministerial” authority to complete the tasks that are given to them bycouncil. As noted in Sherwood, they are employees who report to council. [28] It is important to note that the decision in question relates to a proposed budget that the City Manager proffers toCity Council for their review. She has an employment duty to Council to provide them with a proposed budget, not a duty to the public atlarge.

I find her role with respect to this mandate is clearly circumscribed by the statute and bylaws. [29]

Section 84 of The Cities Act and s. 6(

b) of The City Manager’s Bylaw states that the City Manager will performthe duties and exercise the powers and functions assigned by legislation or council.

Section 6(

c) states that the manager is only directlyaccountable and responsible to council.

Section 8(

b) and (

e) indicate that the manager is to prepare and present the operating budget tocouncil as well as implement the policies, programs and decisions of council.

Section 6(

f) of the bylaws provides that the manager mustadvise, inform, report and make recommendations to council concerning policies and programs to administer the city. [30] I find the statutes and bylaws operating together have the effect of making the manager solely responsible tocouncil as an employee. The clear language of the statute and a common sense purposive approach to

interpretation lead to no otherreasonable

interpretation. Sherwood at para 94 corroborates this viewpoint in terms of the employment duty to council that a citymanager owes. In the case of preparing the proposed budget, the manager clearly does not owe a duty to the public. [31] Even if the City Manager was capable of having a public legal duty to act in certain circumstances, I find thatshe did not have one here. While the respondent argues that there is a difference between a bylaw and a resolution, I note The City

Manager’s Bylaw requires her to “implement the policies, programs and decisions of council” and s. 93(1) of The Cities Act states thatproceedings of council are not effective unless authorized and adopted by council.

Had the resolution been the only word by Council onthe matter, I would have found that it created a clear legal duty to act based on her employment contract and The City Manager Bylaws. [32] However, in her first three weeks of employment before presenting the proposed budget, the City Managernoted both the Resolution and the executive meeting of September 21, 2022 which also, in my opinion, constitute part of the broad rubricof “policies, programs and decisions of council”.

While ss. 93(1) and 93(2) state that acts of council are not effective unless adopted bybylaw or resolution, The City Manager’s Bylaw in s. 8 speaks to implementing “policies, programs and decisions.” I find that this createsa broader range of decisions of Council for the City Manager to properly consider and would include the executive meeting ofSeptember 21, 2022. [33] I also find that both the comments of Mr. Nicol and the Deputy Mayor created room for

interpretation in termsof the form the 2023 proposed budget should take. Further, I find this added context properly informed her decision to proceed as she didwith the proposed budget.

Her “legal duty” cannot be viewed in isolation and she can, to the best of her ability, make decisions based ona complete assessment related to all Council discussions on a specific subject with a view to complying with motions and ensuring she isfollowing the will of the entire Council. [34] Given the nature of this “proposed’ budget and the comments above, I do not find that slavish adherence to theresolution of June 15, 2022 is mandated. [35] Therefore, I find that the respondent owes no public legal duty and, in fact, complied with any legal duty shemay have so that mandamus may not be sought against her.

Does the City Manager owe a legal duty to the applicants [36] If I am wrong with respect to the issue of the respondent’s public legal duty, I must determine whether the CityManager owes a legal duty to these applicants to include this line item in the proposed budget. [37] With respect to the applicant Florence Stratton, the respondent argues that based on the decision of Hughes vHenderson (1963), (MB KB), 42 DLR (2d) 743 (Man QB), ratepayers from the general public do not have standing to enforce a public legal duty.

However, the decision of Dragonwood Enterprises Ltd. v Burnaby (City), 2009 BCSC 1236, 63 MPLR (4th)285 states as follows: [55] In support of its position that the petitioners do not have standing the City relies upon the decision in Hughes v. Henderson(1963), (MB KB), 42 D.L.R. (2d) 743 (Man. Q.B.). In that case the Court held that a ratepayer interested in purchasingproperty from a municipality could not obtain an order of mandamus requiring the municipality to take action to obtain title to theproperty.

Mandamus does not lie to compel a person to institute legal proceedings and the case was decided on that rule. To the extentthe Court in Hughes does address standing in principle, it takes a narrow view of the scope of the remedy founded upon a series of casesdecided between 1870 and 1935: that it is available only to one who has a specific legal right to ask for the interference of the court. [56] The narrow description of the scope of mandamus adopted by the Court in Hughes was enunciated in R. v. Lewisham Union,[1897] 1 Q.B. 498 (Eng. Q.B.).

That case was described by Lord Scarman in Inland Revenue Commissioners v. National Federation ofSelf-Employed & Small Businesses Ltd. (1981), [1982] A.C. 617 (U.K. H.L.), at 653, as "a deplorable decision". [57] In the same case Lord Diplock observed at 639-640: The law has not stood still since 1897. By 1977 this was no longer correct, and I have no hesitation in saying that it is inconceivable thatmandamus would have been refused in the circumstances of that case if it had come before a Divisional Court at any time during the last20 years.

The rules as to "standing" for the purpose of applying for prerogative orders, like most of English public law, are not to be found in anystatute. They were made by judges and by judges they can be changed; and so they have been over the years to meet the need to preservethe integrity of the rule of law despite changes in the social structure, methods of government and the extent to which activities of privatecitizens are controlled by governmental authorities, that have been taking place continuously, sometimes slowly, sometimes swiftly,since the rules were originally propounded ...

Any judicial statements on matters of public law if made before 1950 are likely to be amisleading guide to what the law is today. [58] The Lords reasserted the much wider scope of the remedy described in recent cases, including Arsenal Football Club Ltd. v.Smith (1977), [1979] A.C. 1 (Eng. H.L.) in concluding that a person with "sufficient interest" in the exercise of the statutory authority isone who is particularly aggrieved by the act or failure to act. As Lord Scarman noted, citing H.W.R.

Wade, Administrative Law, FourthEdition (1977) at 654, any more stringent test opens up "a serious gap in the system of public law". [59] That liberal approach to standing has been accepted and applied in our courts. In Saanich Inlet Preservation Society [(1983), (BC CA), 147 DLR (3d) 174 (BCCA)], it was adopted by the B.C. Court of Appeal which cited Lord Fraser's opinionthat a direct financial or legal interest in the result is not necessary to have "sufficient interest" to seek relief in the nature of a prerogativewrit but that "mere busybodies" do not have such an interest. [60] In Carruthers v.

Langley (Township) (1985), (BC CA), 23 D.L.R. (4th) 623 (B.C. C.A.), the Court held at 146that a person with a pecuniary interest or a proprietary interest in the outcome has a "strong claim" to a sufficient interest for the purposesof standing. [61] The petitioners in this case are clearly not "mere busybodies". They have leased premises to the tenants who seek licenses. Thoseleases require the tenants to obtain business licenses. The failure or inability to obtain licenses may affect the validity of the leases.

Thepetitioners have a specific proprietary interest, as well as a pecuniary interest, in the ability of their tenants to obtain business licenses.

There is evidence that tenants may have been lost due to difficulty obtaining business licenses. The City itself has invited the tenants toinvolve the petitioners in the preparation of preliminary plans. In my view the petitioners are clearly persons aggrieved by the positiontaken by the City in relation to the applications in question before me. They have standing to challenge the position taken by the Citythat applications for business licenses will not be considered until and unless PPA is obtained. [38] This decision would indicate that as long as Ms.

Stratton was not a “mere busybody”, she may have a sufficientinterest in terms of standing. It is clear from the affidavits filed that Ms. Stratton is an engaged citizen and has strong and valid concernswith homelessness and how the City of Regina should address those concerns.

I would certainly not use the term “busybody” tocharacterize her or anyone else given it is demeaning and potentially misogynistic. [39] However, I note the decision of Kane v Lac Pelletier (Rural Municipality), 2009 SKQB 348, 342 Sask R 113which stated as follows: 44 I would also observe, on the merits, that the applicants could not succeed in the relief sought by way of mandamus. For a remedyby way of mandamus to be granted, it must be shown that the RM is under a legal duty to act in the manner suggested. Apotex Inc. v.Canada (Attorney General), (SCC), [1994] 3 S.C.R. 1100 (S.C.C.).

Enforcement of a bylaw is a discretionary matter.The applicants, as members of the general public, are not entitled to seek to compel the RM to enforce a bylaw in a particular manner(Society for the Preservation of the Englishman River Estuary v. Nanaimo (Regional District) (1999), 28 C.E.L.R. (N.S.) 253 (B.C.S.C.)). [40] Therefore, in terms of her standing in the matter, it is clear that she has no interest in the matter aside from beinga concerned ratepayer. There is no relationship between her and the City Manager.

I find that her interest is not sufficient to create anexus between her and the respondent. [41] In terms of the applicant, Councillor Stevens, the respondent argues that given that the City Manager duties areowed to Council as a whole pursuant to s. 6(

c) of The City Manager Bylaw, no duty is owed to individual Council members. Further,they state that given that the City Manager had the support of 9 of the 11 City Council members pursuant to the motion of confidence,Councillor Stevens cannot speak for Council as a whole. [42] The applicants argue that based on hypotheticals, democratic principles and respect for minority opinions ofCouncillors would support an individual Councillor’s ability to have the City Manager owe that individual a legal duty. [43] I do not agree with the applicants. [44] The City Manager is the employee of one body, not 11 individuals.

She needs to respond to the will of Councilas she interprets it according to The City Manager’s Bylaw. It would lead to chaos for her to be accountable to 11 individuals withdisparate views. This is the nature of democracy and a democratic government.

Without certainty in terms of direction, she would not beable to perform her function as she would be unable to figure out a proper direction. [45] The issue that would arise if the applicants had standing in the manner requested would be that anytime anindividual councillor did not agree with a decision of an employee of the City, they could ask the court for a remedy based on noncompliance with their direction. This surely cannot be. [46] I also find that it is clear that ss. 6, 7 and 8 of The City Manager’s Bylaw all establish that she is to report tocouncil as a whole, not individual members.

Given the confidence motion, it is clear that the applicants’ position is not the majority willof Council. [47] Therefore, I find that mandamus cannot be ordered as the respondent does not owe any duty to either applicant. Was there a clear right to performance of that duty? [48] The City Manager has provided a proposed budget to Council pursuant to the requirements of the bylaw. This isnot in dispute. However, the applicants argue that another duty is implied; the obligation to follow Council’s direction.

They state thatthis has not been done. [49] They do not provide any case authority on this issue. [50] In Apotex, the court clearly states that in order to establish a clear right to performance of the public legal duty,that applicant must demonstrate a prior demand, a reasonable time to comply unless the demand was refused outright and a subsequentrefusal which can be either express or implied. [51] The facts clearly establish that 21 days after the City Manager was first employed, she presented the proposedbudget to Council.

One day after the budget was presented, the applicants sued the City Manager asking for an order of mandamus.There is no evidence they demanded she put the line item in the proposed budget and there is no evidence she refused any demand,express or implied. There is certainly no evidence that she was given a reasonable time to comply. [52] There was nothing preventing the applicants from asking or demanding that the line item be put in and/or givingthe respondent a time frame in which to do it.

A polite inquiry would be of greater assistance and likely more effective than immediatelyusing the blunt force of an originating application alleging a breach of duty against an employee who has not finished her first month ofemployment. [53] Given the complete lack of any demand for compliance on the part of any of the applicants or anyone else, theapplicants’ request for mandamus must also fail on this ground.

Is the duty discretionary and, if so, which rules apply [54] In addition to the test outlined in Apotex, the decision in Feng v Saskatchewan (Economy), 2020 SKCA 6 at para 108, 70 Admin LR (6th) 237 is instructive as it states as follows: [108] The challenge with the requested relief is that Mr. Feng chose to apply for nomination under the International Skilled Workercategory of the SINP program. This category required him to have a valid, approved job in order to be eligible for SINP nomination. Thedecision to grant nominated status under SINP involves the exercise of ministerial discretion.

Mandamus, on the other hand, is adiscretionary remedy where the "statute in question imposes a duty the performance or non-performance of which is not a matter ofdiscretion" (R. v. Cartier (Rural Municipality) (1922), (MB KB), 68 D.L.R. 741 (Man. K.B.) at 742): see also RiveriaDevelopment Corp. v. Law Society (Saskatchewan) (1992), (SK CA), 91 D.L.R. (4th) 417 (Sask. C.A.), andSaskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment & Public Safety) (1992), (SK CA), 86 D.L.R. (4th) 577 (Sask. C.A.) at para 43.

While the Ministry must exercise a duty of fairness in relation to Mr.Feng, that duty does not convert to an imperative duty to nominate without him satisfying the primary criteria for the category: he musthave an approved and confirmed job in this province. Thus, the remedy of mandamus is simply not available to Mr. Feng. [55] The applicants argue that there is no discretion in the provision of the proposed budget by the City Manager.She was obligated under the resolution to include the line item and no deviation was possible given the direction of Council. [56] The respondent argues that pursuant to s. 8 (

c) and (

f) of The City Manager’s Bylaw, the direction to makerecommendations to Council necessarily involves an exercise of discretion. [57] I find that the very nature of a “proposed” budget makes it clear that the City Manager must exercise herdiscretion and choose various courses of action based on her professional judgment and expertise in situations where the will of Councilis ambiguous such as the case at bar. Further, she must interpret various, quite complex, financial abilities while balancing the needs ofthe City so that Council can make a final determination on the appropriate budgetary considerations.

This is not as simple as approvingor denying a permit based on a set of static criteria.

The complexity related to her tasks for Council inevitably lead to variouspermutations of possible responses. [58] I find that this duty is discretionary. [59] Therefore, a determination needs to be made with respect to the various factors listed in Apotex to determinewhether mandamus is available. [60] The first factor to determine is whether the decision maker acted in bad faith or demonstrated impropriety. [61] From a review of the City Manager’s affidavit, it is uncontroverted that she acted in good faith and to the best ofher abilities. There was no challenge to her affidavit or attempt to cross examine.

She indicated that while she takes the issue ofhomelessness very seriously, she recommended a balanced budget so as to give consideration to ratepayers’ affordability concerns.

Shealso indicated the impact the September 21, 2022 executive meeting had on her decision to proceed as she did with the budget. [62] I do not believe any bad faith could be imputed by her failure to explicitly follow the resolution given theuncontroverted statements in her affidavit. [63] The second factor to consider is that mandamus is unavailable if the decision maker’s discretion is unfettered orabsolute. [64] In this matter, given The City Manager’s Bylaw states that the City Manager “shall” prepare a budget along withthe June 15, 2022 resolution, I cannot say that her discretion is unfettered nor absolute and therefore mandamus would still be open basedon this specific factor. [65] However, with respect to fettered discretion, the Apotex test indicates the next factor to consider would be thatthe decision maker must act on relevant concerns and mandamus is unavailable to compel the exercise of fettered discretion in aparticular way. [66] Given the affidavit of the City Manager and the comments made with respect to the good faith aspect of thistest, I find that the City Manager acted based on relevant considerations which would include being concerned about the financial healthof the City in proceeding as she did.

I find she was balancing concerns to the best of her ability having regard to The City ManagerBylaws and her obligations to Council as a whole. [67] Therefore, I find that the exercise of fettered discretion in terms of the complexities of the details on theproposed budget render mandamus as an unavailable remedy in this situation. Effective adequate remedies available, practical effect, and balance of convenience [68] The next step in the process is determining whether there is an adequate alternative remedy available to theapplicants. The concept of prematurity is also related to this issue.

I also find that the test of practical effect and balance of conveniencecan be addressed at the same time. [69] The guiding principles related to this topic come from the Supreme Court in the Strickland v Canada (AttorneyGeneral), 2015 SCC 37, [2015] 2 SCR 713 [Strickland] decision as follows: [40] One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. The leadingcase is Harelkin [ (SCC), [1979] 2 SCR 561], in which a student alleged that a university committee made a decision that

violated his procedural rights. There was a right of appeal to the university's senate, but instead of pursuing it, the student applied forjudicial review. This Court held that the judge at first instance had erred in entertaining the judicial review application because he failedto exercise his discretion on relevant grounds: he did not consider whether the internal appeal process was an adequate alternativeremedy that was capable of curing the denial of natural justice of which the student complained. [41] The Court has applied similar reasoning in a number of cases to dismiss applications for judicial review.

For example, in Matsqui[ (SCC), [1995] 1 SCR 3], the Court upheld the decision of the Federal Court to decline to hear Canadian Pacific'sapplication for judicial review because it could have pursued an appeal procedure established by the Matsqui Band.

In Canada (AuditorGeneral) [[1982] 1 All E.R. 1042], the Court refused judicial review to the Auditor General to challenge a denial of access to informationbecause a political remedy — reporting to the House of Commons any refusals to comply with requests for information — was anadequate alternative remedy. [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as tojustify a discretionary refusal to hear a judicial review application.

These considerations include the convenience of the alternativeremedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; theexistence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relativeexpertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B.

Powell Ltd. c.Canada (Agence des services frontaliers), 2010 FCA 61, [2011] 2 F.C.R. 332(F.C.A.), at para. 31; Mullan [Mullan, David J. “TheDiscretionary Nature of Judicial Review”, in Robert J. Sharpe and Kent Roach, eds., Taking Remedies Seriously: 2009. Montréal:Canadian Institute for the Administration of Justice, 2010] at pp. 430-31; Brown and Evans [Brown, Donald J. M., and John M. Evans,with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada. Toronto: Carswell, 2013 (loose-leafupdated December 2014, release 3)], at topics 3:2110 and 3:2330; Harelkin, at p. 588.

In order for an alternative forum or remedy to beadequate, neither the process nor the remedy need be identical to those available on judicial review. As Brown and Evans put it, "in eachcontext the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address theapplicant's grievance?": at topic 3:2100 (emphasis added). [43] The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of aparticular case: Matsqui, at paras. 36-37, citing Canada (Auditor General), at p. 96.

Assessing whether there is an adequate alternativeremedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially availableremedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability andappropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, butalso whether judicial review is appropriate.

Ultimately, this calls for a type of balance of convenience analysis: Khosa [2009 SCC 12,[2009] 1 SCR 339], at para. 36; TeleZone [2010 SCC 62, [2010] 3 SCR 585], at para. 56. As Dickson C.J. put it on behalf of the Court:"Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicialreview remedy should be exercised.

It is for the courts to isolate and balance the factors which are relevant ..." (Canada (AuditorGeneral), at p. 96). [44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme inissue: see, e.g., Matsqui, at paras. 41-46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well: While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affectedindividuals against the imperatives of the process under review.

In particular, the courts focus on the question of whether the applicationfor relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes providedby that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive ofnormal processes ... the courts will generally deny relief. [Emphasis added; p. 447.][Emphasis in original] [45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules.

Allrelevant factors, considered in the context of the particular case, should be taken into account. [70] The court in Carrier v University of Saskatchewan, 2021 SKQB 59 also provided the following guidance inorder for a court to make a determination related to this subject matter: [31] In this context, it is important to consider the law as it pertains to vertical appeal rights. The general rule, very widely applied, isthat prior to bringing a judicial review application a party must exhaust those internal, vertical rights. In this case, this means Mr.

Carrierwas unable to seek judicial review until he had exhausted his internal University appeals, meaning the university-level appeal. [32] Again, there are many authorities supporting this proposition. The general law in this area was summarized in Saskatoon (City) vWal-Mart Canada Corp., 2019 SKCA 3 at paras 40 to 42, [2019] 3 WWR 284: [40] The existence of an adequate alternative remedy is a discretionary ground for refusing to undertake judicial review:Strickland v Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 [Strickland].

In Huerto v Saskatchewan, 2008 SKCA 107, 311Sask R 288, this Court described this principle: [68] There are, of course, a variety of situations where the courts have declined to exercise their jurisdiction, or found that theirjurisdiction should not be exercised, because of the existence of parallel dispute resolution procedures. In the context of judicial review,it is well established that a court should not grant prerogative relief if the applicant has failed to pursue an adequate alternativeremedy. See: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561.

As well, the courts will not act when alegislature has established a comprehensive non-judicial system of dispute resolution in a particular area. See, for example, Weber v.Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. [41] It has been noted that "Canadian courts have enforced this general principle vigorously" (Toth Equity Limited v Ottawa(City), 2011 ONCA 372 at para 35, 283 OAC 33 [Toth Equity]). Relief may be refused even where the ground of review is the wrongful

denial of a participatory right in breach of the duty of fairness (Harelkin v University of Regina, (SCC), 1979 2 SCR 561[Harelkin]) or is a substantial jurisdictional error (Canadian Pacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR3 [Matsqui]). [42] As described by Donald J.M. Brown and John M.

Evans, in Judicial Review of Administrative Action in Canada, loose-leaf(Rel November 5, 2018) vol 2 (Toronto: Thomson Reuters, 2017) at para 3:2100 [Judicial Review], adequate alternative remedies are,generally speaking, other administrative remedies and other judicial proceedings: An applicant's failure to pursue a statutory remedy will usually bar relief in judicial review proceedings if the other remedy is consideredto be an adequate alternative to judicial review. And in that regard, two main categories of alternative remedy can be identified: otheradministrative remedies, and other judicial proceedings.

Furthermore, the courts have recognized various subcategories within these twobroad groups. For example, alternative administrative remedies include reconsideration by the original decision-maker, an appeal to anindependent administrative tribunal, or a petition to Cabinet. Similarly, the alternative legal remedies include a right of appeal to a court,some other form of statutory judicial remedy, or an application for judicial review to the Federal Court.

Of course, any discretion toconsider the adequacy of an alternative remedy can be removed by statute. [Emphasis added][Emphasis in original] This doctrine was applied in the post-secondary education context in Student “X” v Acadia University, 2018 NSSC 70 at para 50. [33] In the particular context of the University there is the relatively recent decision in Nadler v College of Medicine, University ofSaskatchewan, 2017 SKCA 89, cited by University counsel. In that case judicial review was brought prior to the student exhausting allappeals within the University process.

The Court of Appeal upheld the decision from this Court, which was to preserve the student's rightto bring judicial review once those internal appeals had been exhausted, but to dismiss the application for prematurity. See paras. 34, 35,38 and 42: [34] When an applicant seeks judicial review of a tribunal's decision instead of, or in addition to, a right of appeal pertainingspecifically to the tribunal in question, reviewing courts are generally reluctant to take up the matter until any such appeal is exhausted.In Canada (Border Services Agency) v C.B.

Powell Limited, 2010 FCA 61, 400 NR 367 [Powell], leave to appeal refused [2011] 3 SCRvi, Stratas J.A. describes the normal rule that applies in cases of this nature in these terms: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrativeprocess have been exhausted.

The importance of this rule in Canadian administrative law is well-demonstrated by the large number ofdecisions of the Supreme Court of Canada on point: ... (Emphasis added) [Emphasis in original] [35] Prematurity is the term usually used to describe the doctrine applied when an applicant seeks judicial review of aninterlocutory decision in the administrative law context before the tribunal renders its decision or before the process can otherwise beconsidered at an end (see McDowell v Automatic Princess Holdings, LLC, 2017 FCA 126 at para 26).

The law that applies here, whereadministrative appeal remedies exist, is usually described as the doctrine of exhaustion. But, as Stratas J.A. describes in Powell, the labelsare immaterial to the analytical framework: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. (Emphasis added) [Emphasis in original] . . . [38] Thus, the law the Chambers judge was required to apply is clear: Dr. Nadler would not be able to proceed with his originatingapplication unless he could persuade the Chambers judge to exercise his discretion to do so.

Courts generally dismiss applications forjudicial review, when alternative appeal processes have not been exhausted, if the alternative process allows the issues to be raised andan effective remedy to be granted. . . . [42] While some courts may have specific rules governing the procedure for an application to dismiss on the basis of prematurity, acourt that dismisses a premature judicial review application calls upon its inherent jurisdiction to do so.

Several Saskatchewan casesdemonstrate the exercise of the Court's inherent jurisdiction to postpone a judicial review application until the administrative tribunal'sprocess has run its course. For example, in Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), (SK CA), 144 Sask R 15 (CA), Vancise J.A. stated the following: "In our opinion the chambers judge erred ... he ought to have declinedto hear the application as being premature" (at para 2).

Other decisions of this Court have confirmed the authority of the Court of Queen'sBench to dismiss applications for judicial review of interlocutory tribunal decisions: Walmart Canada Corp. v United Food andCommercial Workers, Local 1400, 2010 SKCA 89, 321 DLR (4th) 397 [Walmart]; and Mosaic Potash Colonsay ULC v UnitedSteelworkers Local 7656, 2016 SKCA 78, 480 Sask R 306 [Mosaic]. [71] Generally, the doctrines of prematurity and adequate available remedy relate to the existence of other appeal

procedures available in the legislation and the desire of the courts to respect the administrative regime. However, this is not a mandatoryexhaustive requirement as a basis for denying relief. As noted in Strickland where they referred to the Canada (Auditor General)decision [Canada (Auditor General) v Canada (Minister of Energy, Mines & Resources), (FCA), [1987] 1 FC 406(CA), affirmed (SCC), [1989] 2 SCR 49], a political remedy would also qualify as an adequate effective remedy.

From areview of these decisions, it is clear that the focus is on “available effective remedies” that are to be “exhausted” before the court wouldcontemplate the extraordinary remedy of judicial review. The form of the remedy matters less than the remedy’s potential effectivenessin addressing the procedural or substantive slight occasioned on the applicants. [72] The respondent argues that employment sanctions under s. 101(1)(

q) of The Cities Act is the adequate effectiveremedy given her employment relationship to Council.

Further, he submits that Council could also direct that the line item be moved intothe final budget during their deliberations. [73] The applicants argue that these remedies do not address the issue they are facing as the remedies suggested bythe respondent do not address the issue of the contents of the proposed 2023 budget. [74] Essentially, the issue becomes an assessment of the value of the 2023 proposed budget in the overall context ofthe determination of the final 2023 budget that will eventually be rendered by Council.

The applicants imply that there is importantstrategic value in placing the line item in the actual proposed budget rather than simply in the budget book as it properly complies withthe motion which ensures that its importance will be recognized. [75] However, I find that the court should be quite leery of being involved in the political machinations and debatesbetween members of municipal, provincial or federal decision-making bodies.

While establishing goalposts can be part of the court’sgatekeeping function, the remedy of mandamus is a blunt tool and must be used equitably and appropriately. [76] In this specific context, I find there is only strategic value in tinkering with the proposed budget for theapplicants. The aggrieved Councillors will have the full use of the democratic process to put the line item in the final budget, if that is thewill of the majority of Council. It is my view that this would be an adequate and effective remedy in these circumstances.

The proposedbudget is an important tool to begin discussions but it has no legal force or authority. It is only Council who can determine what willconstitute the final budget. [77] While there is some practical beneficial effect to the court’s use of mandamus in this matter for the applicants inthe political sense, I do not view the balance of convenience favoring the applicants. [78] Given my other findings, the

interpretation or misinterpretation of Council’s will by the City Manager must beaddressed by Council as a whole pursuant to The Cities Act and not through the use of mandamus. [79] Given the available remedies and the other determinations made in this decision, the application is dismissed. Costs [80] In terms of deciding what costs would be appropriate, there are many factors to take into consideration given the success of the respondent.

I note the decision of the court in 1348623 Alberta Ltd. v Choubal, 2016 SKQB 200, 94 CPC (7th) 210 and thelisting of factors relating to the complexity of the case, importance of the case, the duration and conduct of the proceedings, the urgencyof the matter and the amount at issue, whether experts were involved, parity and expectations, access to justice, discretion andreasonableness and any other relevant matter as elements to consider when awarding costs. [81] I take into account the elements above along with the comments by the applicants that urgency is not anoverriding factor given the same amount of work is simply compressed into a shorter period of time.

Further, while the arguments raiseda novel and complex issue in law, the facts were relatively simple. [82] On the other side of the coin, the application involved the filing of four briefs, six affidavits, and lengthy oralsubmissions. [83] Therefore, on balance, I award costs under column 2 to the respondent. J. J.P. MORRALL