City of St. John's Appellant And: Gary Hagerty Respondent, 2018 NLSC 193

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : St. John's (City) v. Hagerty , 2018 NLSC 193 Date : October 1, 2018 Docket : 201801G0345 Between: City of St. John's Appellant And: Gary Hagerty Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: April 11 and April 17, 2018

Summary: The Court declined to decide the City’s appeal of a decision acquitting the Respondent of a parking violation. The Court found the issue was moot as the City had already advised the Respondent it would not proceed to trial if its appeal was successful. Appearances:

Raman F. Balakrishnan Appearing on behalf of the Appellant Gary Hagerty Appearing on his own behalf Authorities Cited: CASES CONSIDERED: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342; Mitchell v. Jackman,2016 NLTD(G) 132; Mathews v. Coca-Cola Co. of Canada Ltd., (SCC), [1944] S.C.R. 385 STATUTES CONSIDERED: St. John’s Ticketing Amendment By-Law, By-Law No. 1368, 1996 s. 10(1); Elections Act, 1991, S.N.L.1992, c. E-3.1; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The City of St. John’s (the “City”) has appealed a December 12, 2017 decision of a Provincial Court Judge in which Mr.Hagerty was acquitted of the

summary conviction offence of parking on land owned by the City of St. John’s, contrary to the St. John’sTicketing Amendment By-Law, By-Law No. 1368, 1996 s. 10(1). The City’s Notice of Appeal alleges that the Trial Judge erred when heheld that Mr.

Hagerty had made out a defence of due diligence and/or mistake of fact. [2] At the start of the appeal hearing on April 11, 2017, counsel for the City advised that, while its Notice of Appeal asked theCourt to allow the appeal and enter a conviction, it was now asking that the matter be sent back to the Provincial Court if the appeal wasallowed so the City could exercise its discretion in dealing with the matter. [3] Before counsel for the City had finished his oral submissions, he requested leave to file additional case law dealing with oneof the grounds of appeal. When I sought Mr.

Hagerty’s position with respect to the submission of this case law, Mr. Hagerty stated tothe Court that the City had already told him he did not have to pay the parking ticket so the outcome was really of no interest to him. [4] Mr. Hagerty then provided me with a letter he had received from counsel for the City one week earlier. The letter indicatedthe City would not withdraw the appeal as Mr. Hagerty had requested, since the issues before the Court were legal questions surroundingwhat the City saw as errors of law.

However, if the appeal was allowed, counsel would ask that the matter be remitted back to ProvincialCourt. The City would then exercise its discretion not to proceed with the prosecution of Mr. Hagerty’s ticket and the ticket would bewithdrawn. Counsel for the City confirmed that this statement continued to represent the City’s intention. [5] I therefore asked the parties to speak to the issue of whether or not this Court should proceed to decide the appeal as it couldbe said that the matter as between these two parties was moot.

However, I continued to hear submissions of the parties on the substanceof the appeal as the parties were already before the Court and prepared to proceed. [6] The parties returned on April 17 to address the issue of whether the Court should proceed to decide the appeal afterconsidering the doctrine of mootness. The City took the position that it was still requesting a decision from this Court as it could impactnot only the parties but how other cases are decided in Provincial Court. Mr.

Hagerty did not make specific submissions on themootness argument but, if the Court was to proceed to determine the appeal, he asked that the decision of the Provincial Court Judge beupheld. [7] Having heard from the parties and considered the case law presented, I have determined that the issues before me on thisappeal are moot and it is not appropriate for this Court to make a decision on the substance of the appeal.

The following represent myreasons on the issue of mootness. background [8] By way of background, Gary Hagerty was ticketed and charged with having parked on land owned by the City, without theCity’s consent. This offence was alleged to have occurred on August 14, 2017 when Mr. Hagerty’s vehicle was seen parked at Carter’sHill Place on an area of land abutting a street. The City described this area as ‘green space’.

[9] Mr. Hagerty defended the ticket on the basis that he had seen many cars parked in the same area in the prior months. Further, he said that there was no sign at the location indicating that individuals could not park there. He therefore thought parking waspermitted. [10] The Provincial Court Judge heard evidence from both Mr. Hagerty and the Parking Enforcement Officer who issued the ticket. Photos taken by the Parking Enforcement Officer were also entered into evidence. The trial judge acquitted Mr. Hagerty on the basisthat he had established either a defence of due diligence or a defence of mistake of fact.

The City appealed that decision, asking that aconviction be entered. However, as noted above, prior to the hearing of the appeal on this matter, the City confirmed in writing to Mr.Hagerty that, if the appeal was allowed, the City was asking that the matter be remitted to Provincial Court.

However, it would not thenproceed to prosecute the ticket. issue [11] The issue to be decided is whether I should proceed to render a decision on the substance of the appeal taking intoconsideration the doctrine of mootness. law and analysis [12] The City submitted that the appeal was not moot as there remained a live controversy between the parties. In the alternative, itsaid that, if there was no live controversy, I should nevertheless exercise my discretion to decide the appeal. Mr.

Hagerty did not file anycase law or make any substantive submissions with respect to the issue of mootness when the matter was recalled on April 17, 2018. [13] The City relied upon the leading Supreme Court of Canada decision in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 which sets out the doctrine of mootness. At paragraphs 15 and 16 of that decision, Sopinka, J. stated asfollows: 15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question.

The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights,the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the court is called upon to reach a decision.

Accordingly, if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to departfrom its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. 16 The approach in recent cases involves a two-step analysis.

First, it is necessary to determine whether the required tangible andconcrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it isnecessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term"moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the courtdeclines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test.

A court maynonetheless elect to address a moot issue if the circumstances warrant. [14] As noted by Sopinka, J., the doctrine is engaged when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. The relevant time for determining whether there is a live controversy isat the time the Court is asked to make a decision. This is so because the doctrine may be invoked subsequent to the initiation of aproceeding if events occur which affect the relationship of the parties so that there is no present “live controversy” existing betweenthem.

That is the threshold question for determining whether this appeal is moot. 1. Is there a ‘live controversy’ between the parties? [15] The City took the position that the appeal is not in fact moot, as the substrata of the litigation has not disappeared. The Citysays the facts on which the charge was laid, and the Accused was acquitted, continue to exist. In particular, the City says that, at thetime of the hearing of the appeal: 1) Mr. Hagerty continued to take the position that the fact that other people parked in the area is a sufficient defence; and 2) Mr.

Hagerty continued to raise the issue that the City should be required to place signs on green spaces, making it clear to membersof the public that they may not park in the area. [16] The City disputes both of these positions and says that a determination on these issues will affect the rights of the City and Mr.Hagerty. It says the City’s assurance to Mr. Hagerty that there will be no penalty does not alter the fact that there remains a livecontroversy.

In particular, the City says that a determination on these issues will affect its rights as it may impact whether the Cityplaces signs at City-owned green spaces as well as the extent to which it monitors parking in such areas. Further, it may impact how theCity prosecutes such offences. With respect to how a determination may impact the rights of Mr. Hagerty, the nature of the impact onhis rights is less clear. [17] In support of its position, the City refers to the decision of Butler, J. of this Court in Mitchell v. Jackman, 2016 NLTD(G) 132.

In that proceeding, an electoral candidate from a prior provincial election had filed an application challenging the validity of a provisionof the Elections Act that allowed for the casting of special ballots up to four weeks before an election is called. After the filing of theapplication, the electoral district in which the candidate had sought election ceased to exist as a result of amendments to the number and

location of electoral districts. As well, another general election had been held in which neither the applicant, nor any of the other formercandidates, had run for office. In those circumstances, Justice Butler found that there was no longer a tangible and concrete dispute overthe prior election results, nor would any decision that she could make have any practical effect on the applicant candidate’s personalrights. [18] However, at paragraph 20, Butler, J. found that the applicant’s public interest challenge to the impugned sections of theElections Act had not become academic.

It is notable that Hall, J. had previously made a judicial determination that the applicant hadpublic interest standing to challenge the legislation as violating

section 3 of the Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. It was in the context of the applicant’s court-sanctioned standing as a representative of the public making a Charter challenge that Justice Butler decided there remained a livecontroversy. As the impugned statutory provisions had not been repealed or amended, the public, represented by the applicant, still hadan interest in having a decision made that could impact future elections.

Such uncertainty would also have a practical effect upon therespondents, who were provincial election personnel and the Attorney General of Newfoundland and Labrador. [19] The circumstances that were before Butler, J. are significantly different than those in the appeal before me. In this case, Mr.Hagerty’s evidence at trial was that he had parked in the green space area to carry out an errand; i.e. to renew his passport at a FederalGovernment office. There is no suggestion that Mr.

Hagerty used this parking space on a regular basis, such as would be the case if theparking space at issue were near his residence or place of work. There was also no indication that Mr. Hagerty would be seeking to parkthere at any point in the future. In addition, no challenge was made to the validity or constitutionality of the by-law upon which the Cityrelies. [20] This case is more akin to that before the Supreme Court of Canada in Mathews v. Coca-Cola Co. of Canada Ltd., (SCC), [1944] S.C.R. 385, referred to at paragraph 20 of Borowski.

In Mathews, the corporate appellant appealed a decision of theCourt of Appeal for Ontario which had set aside a judgment of the County Court. The Court of Appeal had rendered a decision orderingthat the respondent recover from the appellant the sum of $350.00 with costs of the action and of the appeal.

Upon motion by theappellant, the Court of Appeal granted leave to appeal to the Supreme Court of Canada on the condition that the appellant undertake topay to the respondent, in any event of the cause, the amount of the judgment together with party and party costs of the trial, the appeal tothe Court of Appeal and the appeal to the Supreme Court of Canada.

As such, there would be no practical consequence to the respondentof any decision of the Supreme Court of Canada. [21] At paragraph 7, Rinfret, C.J. noted that the Supreme Court of Canada was in essence not being asked to decide, as between theparties, the issues presented in the judicial proceeding. It was merely being asked to express its views upon a legal question on which theappellant hoped to get a favourable position from the court without in any way affecting the position between the parties.

At paragraph8, Rinfret, C.J. noted that it is not normally the role of a court to entertain applications for legal advice. In particular, he stated asfollows: The Courts have been instituted to decide cases or litigious matters, but not to entertain applications for advice upon legal questions,except, of course, in certain special procedures which are provided for under special statutes. [22] The case before me now is strikingly similar as, if I were to decide this appeal, the result would have no practical effect uponMr. Hagerty.

I would be deciding an abstract legal issue, with the judgment being more in the nature of legal advice as opposed to adetermination of a live controversy between these parties. [23] The issue here, as it pertains to the dispute between the City and Mr. Hagerty, relates solely to Mr. Hagerty’s actions in parkingin that area on the specific date in question. There is no indication that a determination on this issue will have any more practical effecton Mr. Hagerty’s rights than it would have on the rights of any member of the motoring public in the St. John’s area.

Further, Mr.Hagerty has not sought standing to represent all motor vehicle drivers who may park within the City boundaries. [24] As a result, I find that there is no tangible or concrete dispute between the parties. This dispute became academic when theCity advised Mr. Hagerty it would not be proceeding with a new trial should it be successful on the appeal. [25] However, a determination on this threshold issue does not end the analysis. The next question for me to answer is whether Ishould nevertheless exercise my discretion to determine the issues raised in the appeal. 2.

Should the Court exercise its discretion to determine the appeal? [26] As noted above, the second step of the Borowski analysis requires me to determine whether I should exercise my discretion tohear a matter that is moot. In Borowski, Sopinka, J. identified the three rationales on which the mootness doctrine is based. Aconsideration of these underlying rationales should be undertaken when determining whether to exercise judicial discretion to determinea moot issue. [27] The first rationale for the mootness doctrine is that a Court's competence to resolve legal disputes is rooted in the adversarysystem.

As such, the necessary adversarial context must still be present. Such an adversarial context may be present where there arecollateral consequences of the outcome. [28] The second broad rationale on which the mootness doctrine is based is the concern for judicial economy.

Given the need toration scare judicial resources among competing claimants, the court must be concerned with whether there are special circumstances ofthe case making it worthwhile to apply such scare judicial resources to resolve it. [29] This concern for conserving judicial resources is partially answered in cases that have become moot if the court’s decision willhave some practical effect on the rights of the parties or in cases where, although moot, the question to be decided is an important issuewhich might be of a recurring nature but of brief duration, and thereby independently evade review by the court (e.g. in the case of aninterlocutory injunction prohibiting strike action).

However, the Supreme Court of Canada cautioned at paragraph 36 of Borowski that,even if the same point is likely to recur even frequently, this should not by itself be a reason for hearing an appeal which is moot:

It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. [ 30 ] At paragraph 37, Sopinka, J. noted that the expenditure of judicial resources may also be justified in cases which raise an issue of public importance of which a resolution is in the public interest, such as was the case in Mitchell .

This is so because courts should be concerned with the social cost of continued uncertainty in the law. [ 31 ] The third underlying rationale is the need for the court to demonstrate a measure of awareness of its proper law-making function. This requires the court to be sensitive to its role as the adjudicative branch in the political framework.

In pronouncing judgments in the absence of a dispute affecting the rights of the parties before it, the court could be seen to be intruding into the role of the legislative branch. [ 32 ] In dealing with the first rationale underlying this doctrine, Butler, J., at paragraph 26 of Mitchell , noted that the focus will be on whether there are collateral consequences and remaining issues that will be well and fully argued by parties with a stake in the outcome. In that case, the applicant herself was a former candidate who was involved in political life.

The other parties included provincial election personnel and intervenors who had a sufficient stake in the outcome of the request for a declaration of invalidity. There were four separate parties represented by legal counsel before the Court who had all provided substantial briefs and authorities. As such, the issue could be well and fully argued. The Court found that the appropriate adversarial context was therefore present. [ 33 ] In this appeal, Mr. Hagerty’s own statements to the Court are an acknowledgement of the lack of an adversarial context. In particular, Mr.

Hagerty indicated that he did not require time to consider new case law presented by the City as a result of the lack of any practical consequences to him. As well, while he did make oral submissions with respect to the substance of the appeal, he represented himself both at trial and on appeal. His submissions were largely factually based, dealing with his knowledge of this one green space area and the perceived unfairness of the City’s enforcement actions at this location on the date of the alleged infraction.

While he had a full knowledge of the facts, he is not legally trained and provided no case law or other authorities with respect to the matter. I cannot therefore say that this is a matter in which the issues were fully argued by parties with a stake in the outcome. [ 34 ] In respect of the second rationale underlining the mootness doctrine, i.e. the concern for scarce judicial resources, I acknowledge that the arguments on the appeal itself only took a couple of hours of Court time. However, I was not fully advised before the commencement of the hearing of the circumstances leading to the appeal becoming moot.

As a result, the opportunity was lost to determine in advance whether discretion should be exercised to use that court time to hear a moot issue. Further, it is not only the time spent in Court to consider. The City has asked the Court to provide a written decision providing guidance with respect to the application of the defences of due diligence and mistake of fact in these circumstances.

As such, further judicial resources would need to be used in providing such a written decision after the hearing. [ 35 ] In addition, while I recognize Sopinka, J.’s comments in Borowski to the effect that an expenditure of judicial resources may be warranted where the issues raised are of a recurring but brief nature, I am not satisfied that this is a case where it is unlikely that the issues on appeal would otherwise evade review by this Court in the future.

If public parking in City green spaces is an ongoing issue, the City could appeal another acquittal of a parking violation and ask this court to determine the issue in a genuine adversarial context. Absent the City agreeing not to prosecute all tickets in the future, the dispute will not always have disappeared before it is ultimately resolved.

As noted by Sopinka, J., it is preferable to wait and determine the issue when it can be fully argued by parties with a continuing stake in the outcome. [ 36 ] I also find no indication of any broad public interest in having the issue determined as the decision may in fact only relate to one discreet parking area within the City of St. John’s. There may be other appeals in which the facts give rise to an issue engaging a broader public interest and affect ongoing rights of the parties.

The broader public interests could therefore be addressed in a true adversarial context. [ 37 ] The third underlying rationale for the mootness doctrine, i.e. the need for the Court to demonstrate a measure of awareness of its proper law-making function, is not a significant consideration in the exercise of my judicial discretion based on the facts before me.

In particular, there is no significant concern that the Court, in pronouncing judgment in this case, would intrude into the legislative role. [ 38 ] Overall, having considered all three basic rationales for enforcement of the mootness doctrine, I have determined that I should exercise my discretion not to determine the issues in this appeal. Mr. Hagerty has frankly acknowledged that he does not have a significant interest in the outcome of the proceeding as it would have no practical effect on him.

While he wished to see the decision upheld as a matter of principle, he is a self-represented litigant who focused more on the particular facts as it related to his own situation on the date of the alleged infraction as opposed to the legal principles upon which his acquittal was based. As such, the necessary adversarial context is not present. [ 39 ] As well, this is not a case in which it is unlikely the City could appeal another acquittal to this Court. A further appeal could involve parties who vigorously argue the issues and provide the Court with a fulsome legal argument.

Further, I am not satisfied that there is any significant social cost in leaving the matter undecided at this stage. I have no evidence that this issue is causing the City or the general public significant costs or inconvenience such that the matter must now be decided. I therefore decline to exercise my discretion to determine this moot issue. conclusion [ 40 ] As the appeal between the City and the Respondent is now moot, the Court declines to exercise its discretion to determine the appeal. Accordingly, the appeal is dismissed.

_____________________________ Rosalie McGrath Justice