Alie-Kirkpatrick v Saskatoon (City), 2019 SKCA 92

Court of Appeal for Saskatchewan Docket: CACV3368 Citation: Alie-Kirkpatrick v Saskatoon (City) , 2019 SKCA 92 Date: 2019-09-19 Between: Rita Alie-Kirkpatrick Appellant And City of Saskatoon Respondent Before: Richards C.J.S., Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Barrington-Foote On Appeal From: 2019 SKQB 13 , Saskatoon Appeal Heard: May 2, 2019 Counsel: Nicholas Blenkinsop for the Appellant Alan Rankine for the Respondent Tholl J.A. I.

Introduction [ 1 ] Rita Alie-Kirkpatrick owned a house in Saskatoon. When her property taxes fell into arrears, the City of Saskatoon [City] commenced tax enforcement proceedings and, after a prolonged tax enforcement process, the City obtained title to the property. Subsequently, the City and Ms. Alie-Kirkpatrick were unable to reach an agreement that would permit Ms. Alie-Kirkpatrick to repurchase the property from the City. This resulted in Ms. Alie-Kirkpatrick applying to the Court of Queen’s Bench seeking various remedies to assist her to regain ownership of the property.

A judge of the Court of Queen’s Bench dismissed her application in Chambers. [ 2 ] Ms. Alie-Kirkpatrick maintains she has an enduring right of redemption for the property after the City obtained title through the tax enforcement process. She further submits the decisions made by the City during the negotiations to sell the property back to her are subject to judicial review. Ms. Alie-Kirkpatrick disputes the Chambers judge’s finding that she was barred from a remedy because of the clean hands doctrine. Lastly, she asserts the Chambers judge should not have awarded costs against her. [ 3 ] Ms.

Alie-Kirkpatrick’s appeal must be dismissed. The property tax enforcement process is a complete code with regard to redemption and there is no right to redeem property outside of the processes set out in The Tax Enforcement Act , RSS 1978, c T-2 [ TEA ]. The relevant decisions made by the City after it obtained title to the property are not of a sufficiently public character to permit judicial review. Given that Ms. Alie-Kirkpatrick was unsuccessful on the merits of her application, there is no need to consider the clean hands doctrine,.

Lastly, there are no grounds to interfere with the Chambers judge’s award of costs. II. Background [ 4 ] Ms. Alie-Kirkpatrick purchased a house located in Saskatoon in 1989, taking out a mortgage to do so. Over the years, Ms. Alie-Kirkpatrick managed to pay off the mortgage despite having a disability and being unable to earn much income. In 2012, due to credit card debt, the Royal Bank of Canada obtained a judgment against Ms. Alie-Kirkpatrick for $51,471 [RBC judgment] and registered it against the title to the property.

No enforcement action has been taken in relation to the judgment and it remains registered against the title. [ 5 ] In 2012 and 2013, Ms. Alie-Kirkpatrick failed to pay the property taxes owed to the City. The City registered a tax lien on the property on May 22, 2014, pursuant to s. 10 of the TEA . In February of 2015, City Council authorized tax enforcement proceedings to commence against the property. In May of 2015, the City served Ms. Alie-Kirkpatrick with a six months’ notice, pursuant to s. 23 of the TEA .

This notice is prescribed in form C set out in s. 6 of The Tax Enforcement Regulations, 2015 , RRS c T-2 Reg 2 : TAKE NOTICE that the [City] intends to be registered pursuant to the above Act as owner of the land described below.

The municipality claims title to the land by virtue of an interest based on the tax lien registered against the existing title to the land … and you are required to TAKE NOTICE that unless you contest the claim of the municipality or redeem the land pursuant to the provisions of the above Act within six months from the service of this notice on you and, subject to the further provisions of The Tax Enforcement Act , a title will be issued to the applicant.

On and after the date that the title is issued to the applicant, you will be forever estopped and debarred from setting up any claim to, or with respect to, the land. The amount required to redeem the land may be ascertained on application to the Clerk, Treasurer or Administrator of the municipality. [ 6 ] The six months passed without the arrears being addressed so, on December 18, 2015, the City, pursuant to s. 24 of the TEA and s. 7 of The Provincial Mediation Board Act , RSS 1978, c P-33 [ PMBA ], requested the consent of the Provincial Mediation Board [the Board] to obtain title to the property.

In January of 2016, Ms. Alie-Kirkpatrick proposed a payment arrangement and discussions occurred

amongst Ms. Alie-Kirkpatrick, the City, the Board and the Ministry of Social Services. The City granted Ms. Alie-Kirkpatrick some time, and several extensions of that time, to obtain a loan to pay the arrears. There is sparse evidence regarding Ms. Alie-Kirkpatrick’s attempts to obtain financing but, in any event, she did not obtain the funds required to pay the tax arrears. [ 7 ] On May 5, 2017, the Board gave its consent to the City to serve a final notice and obtain title to the property. The City did not immediately serve that notice and the parties continued to negotiate over the next year without success.

On April 14, 2018, the City provided final notice to Ms. Alie-Kirkpatrick of its intention to obtain title.

This notice is prescribed in form G set out in s. 10 of The Tax Enforcement Regulations, 2015 , and included the following: TAKE NOTICE that the [City] intends, on the expiration of 30 days from the date set out below, to request the Registrar of Titles to issue title to the land described below by virtue of an interest based on a tax lien registered against the existing title to that land in the Land Titles Registry … UNLESS you redeem that land pursuant to the provisions of the Act within 30 days from the date set out below, and that on issue of title for that land to the [City] pursuant to that request, you will thereafter be forever estopped and debarred from setting up any claim to or with respect to that land. [ 8 ] Ultimately, the City took title to the property on June 28, 2018, pursuant to the TEA .

After the City obtained title, Ms. Alie- Kirkpatrick continued to occupy the property and, under s. 36 of the TEA , was deemed to be the City’s tenant with The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 [ RTA ], applying to the tenancy. [ 9 ] Ms. Alie-Kirkpatrick does not challenge any of the steps taken by the City up to, and including, the point that it obtained title to the property under the TEA . Her concerns relate to the City’s actions and decisions after it obtained title. [ 10 ] On July 23, 2018, the City served Ms.

Alie-Kirkpatrick with a notice to vacate the property pursuant to s. 58(1) of the RTA . A hearing was scheduled at the Office of Residential Tenancies [ORT] to determine whether Ms. Alie-Kirkpatrick was required to vacate the property. The ORT hearing commenced on September 5, 2018, but was adjourned sine die , by consent, for the parties to continue negotiations. There were further discussions between Ms. Alie-Kirkpatrick and the City regarding Ms. Alie-Kirkpatrick buying back the property. The City required Ms. Alie-Kirkpatrick to pay the RBC judgment before it would sell the property to her.

When the negotiations failed, the ORT hearing was scheduled to resume on October 23, 2018. [ 11 ] On October 18, 2018, Ms. Alie-Kirkpatrick served the City with an originating application to the Court of Queen’s Bench. This resulted in the ORT hearing being adjourned sine die to await the outcome of the application. In her amended originating application, Ms. Alie-Kirkpatrick sought the following summarized remedy: (

a) an order she be permitted to redeem the property on conditions set out in the application; or (

b) judicial review resulting in injunctive and/or declaratory relief: (

i) stating the repayment of the RBC judgment is not an appropriate condition to include as a condition on Ms. Alie-Kirkpatrick regaining title; and (ii) requiring the City to trigger the process under s. 9 of the PMBA or, in the alternative, requiring the City to have City Council hold a hearing regarding the decision to trigger the process under s. 9 of the PMBA and specifying several aspects of the hearing process the City Council must use. [ 12 ] The City applied to strike large portions of Ms. Alie-Kirkpatrick’s affidavit material. The two applications were heard in Chambers on December 13, 2018.

On January 14, 2019, the Chambers judge released a written decision striking a substantial portion of Ms. Alie-Kirkpatrick’s affidavit material and dismissing the entirety of her application with costs to the City ( Alie-Kirkpatrick v Saskatoon (City) , 2019 SKQB 13 [ Chambers Decision ]). [ 13 ] The Chambers judge found there was no agreement between the City and Ms. Alie-Kirkpatrick, so there was no basis for the City to refer the matter to the Board under s. 9 of the PMBA . He further found the matter was “private, privileged and not subject to judicial review” (at para 26).

The Chambers judge determined the TEA constituted a complete code, and “sets out a clear, comprehensive and complete legislative scheme for tax enforcement proceedings” (at para 41) but did not comment further about whether a right of redemption exists outside of the TEA . Lastly, the Chambers judge found Ms. Alie-Kirkpatrick had caused lengthy delays in the matter to the point that she had not come to the court with clean hands. Applying the clean hands doctrine, he determined Ms. Alie-Kirkpatrick was barred from obtaining equitable relief in any event. [ 14 ] Ms.

Alie-Kirkpatrick appeals the entirety of the Chambers Decision . She continues to occupy the property. III. Issues [ 15 ] Ms. Alie-Kirkpatrick’s notice of appeal sets out the following grounds of appeal: a. the court below erred in its treatment of the appellant’s application to redeem the property and the affidavit material relevant to that application; b. the court below erred in finding that the City of Saskatoon’s decision relating to s. 9 of the PMBA was immune to judicial review; and c. the court below erred in its award of costs. [ 16 ] In her factum, Ms.

Alie-Kirkpatrick did not make submissions regarding the Chambers judge’s decision to strike significant portions of her affidavit material, but her factum repeatedly refers to portions of the material that had been struck. In oral argument,

Ms. Alie-Kirkpatrick submitted the impugned portions of the affidavit evidence are not necessary to be considered on this appeal, but ifthe matter is referred back to the Court of Queen’s Bench, the striking of the affidavit material should be reconsidered. As such, I will notrely on any portions of the affidavit material that were struck. Given that the appeal is dismissed in its entirety, it is not necessary tofurther address the decision to strike portions of the affidavit material. [17] The remaining issues in this matter distill down to the following: (

a) Does Ms. Alie-Kirkpatrick have a right to redeem the property on a basis that is not contained in the TEA? (

b) Are the decisions made by the City after it obtained title subject to judicial review? (

c) Is the clean hands doctrine applicable to this matter? (

d) Should the costs ordered by the Court of Queen’s Bench be upheld? IV. Analysis A. Is there a right of redemption outside of the TEA? [18] Ms. Alie-Kirkpatrick asserts she continued to have a right to redeem the property, even after the City took title to the property.As no such right exists in the TEA, she submits this further right of redemption can be found in s. 132(1)(

e) of The Land Titles Act, 2000,SS 2000, c L-5.1 [LTA]. She submits her position is akin to a mortgagor in a foreclosure proceeding. The City asserts the TEA is acomprehensive code and all rights of redemption are extinguished once the City has taken title to a property under the tax enforcementprocess. [19] The issue of whether a right of redemption exists outside of the processes set out in the TEA, and endures once a municipalityhas taken title through those processes, is a question of law.

Questions of law are reviewed on a standard of correctness: Housen vNikolaisen, 2002 SCC 33, [2002] 2 SCR 235, and Saskatchewan Crop Insurance v McVeigh, 2018 SKCA 76, 428 DLR (4th) 122 (leave toappeal to the SCC refused, ). [20] The right of redemption was originally an equitable remedy for common law mortgages: “A common law mortgage involved atransfer of the legal title to the land to the creditor on the condition that it would be retransferred upon discharge of the obligation owingby the debtor” (Professor Ronald C.C.

Cuming’s, Overview of Saskatchewan Real Property Security Law (Regina: Queen’s Printer, 2016)at para 9.1). The right to redeem was the recognition in equity that the mortgagor had the right to redeem his or her full ownership of theland by discharging the obligation even if the deadline for payment had passed. [21] In the modern context, the common law mortgage and its associated equitable right of redemption has been displaced bylegislation under the Torrens system in Saskatchewan. In a statutory mortgage, title is not transferred to the creditor.

Rather, an interest isregistered on title as security for a mortgage. Redemption refers to the discharge of the interest registered on title under the LTA. Section132(1) of the LTA deals with the right to commence foreclosure proceedings based on a statutory mortgage. Section 132(1)(

e) codifies atitle holder’s right of redemption under a statutory mortgage. Section 132(1) is as follows: Proceedings to foreclose, redeem, etc. 132(1) Proceedings may be brought in the court: (

a) to enforce payment of moneys secured by a mortgage; (

b) to enforce the observance of the covenants, agreements, stipulations or conditions contained in a mortgage; (

c) to sell the land mortgaged; (

d) to foreclose any estate, interest or claim in or on the lands mortgaged; or (

e) to redeem or discharge land from a mortgage. [22] Ms. Alie-Kirkpatrick argues the requirement that the City register its interest in the property under the LTA imports the LTAredemption process into the tax enforcement process. I disagree. A tax lien is registered under the LTA and, if the property is notredeemed, the title is transferred to the municipality under the LTA at the end of the tax enforcement process. This interaction with theLTA, however, does not create additional rights for a property owner involved in a tax enforcement process.

A registration of a lien and atransfer of the title occurs under the LTA because Saskatchewan has one central registry where all such information is recorded. The taxenforcement process necessarily involves the provisions of the LTA – but as a registration and notice mechanism. There must besomething more in order for the redemption process under the LTA to be triggered. [23] Ms. Alie-Kirkpatrick further argues that a tax lien is a mortgage within the meaning of s. 2(1)(cc) of the LTA and, accordingly,within the meaning of s. 132(1)(e).

Section 2(1)(cc) of the LTA defines a mortgage as “a charge on land created for securing payment ofmoney, and includes a hypothecation of that charge and a charge created for securing payment of any annuity, rent charge or sum ofmoney other than a debt or loan”. She relies on Canterbury Lofts Condominium Corporation v Dureau, 2016 SKQB 410 [Canterbury], asauthority for the position that the definition of mortgage in s. 2(1)(cc) of the LTA encompasses a wide range of charges on land. In

Canterbury, Kalmakoff J. (as he then was) examined whether a lien registered against a condominium unit’s title for unpaid condominiumfees, pursuant to s. 63 of The Condominium Property Act, 1993, SS 1993, c C-26.1 [CPA], met the definition of mortgage under s. 2(1)(cc)of the LTA.

The issue arose because the condominium corporation applied for a determination of whether it required leave under TheLand Contracts (Actions) Act, 2018, SS 2018, c L-3.001 [LCAA], to commence a foreclosure action to enforce the payment of the arrears.In the course of his reasoning, Kalmakoff J. determined a lien registered under s. 63 of the CPA met the definition of a mortgage unders. 2(1)(cc) of the LTA. [24] Ms.

Alie-Kirkpatrick then relies on the body of case law that has arisen under mortgage enforcement proceedings that permit acourt, in the exercise of its discretion, to grant a right of redemption even once title has vested in the mortgagee. She places particularreliance on General Accident Assurance Company of Canada v Walton, 2000 SKCA 125, 194 DLR (4th) 315, where Vancise J.A. statedthe following: [18] … The right to redeem under the statutory mortgage is not an equitable right but rather a statutory right.

Baynton J., with whom Iagree, made this clear in Farm Credit Corp. wherein he stated “[t]he right to redeem a statutory mortgage arises by statute, not themortgage document itself. As well, it only arises when the mortgage is in default and foreclosure or sale proceedings have beencommenced to enforce it” (Farm Credit Corp. [(1993), (SK KB), 110 Sask R 287 (QB)] at p. 296). See also MeritMortgage Group v. Sicoli (1982), (AB KB), 128 D.L.R. (3d) 291 (Alta. Q.B.).

Generally speaking, under existingSaskatchewan legislation, a mortgagor is given the legal right to redeem as and from the commencement of the proceedings by themortgagee to the end of the period for redemption fixed by the court in the order for nisi. If the mortgagor has not paid the amount owingunder the mortgage, the mortgagee can apply to the court for a final order for foreclosure in which the mortgagor’s statutory right toredeem (although it is called the equity of redemption in the order) is foreclosed.

The court does have discretion to reopen a final order forforeclosure even after the mortgagee has obtained title and possession and extend the time within which the mortgage can be redeemed. [25] Ms. Alie-Kirkpatrick submits judicial oversight with regard to the enforcement of mortgages (foreclosure or judicial saleproceedings) should apply equally to the tax enforcement process. She asserts it should be irrelevant if the creditor is a bank enforcing amortgage or a municipality enforcing a tax lien.

This leads to her conclusion that she has an enduring right of redemption under the LTA. [26] I would first note that it is not necessary to determine if the term mortgage in s. 132(1)(

e) of the LTA includes a tax lien that hasits genesis under the TEA. It is also not necessary to consider whether Canterbury was correct in deciding that a CPA lien is a mortgage. Ifs. 2(1)(cc) and s. 132(1) did apply to a tax lien under the TEA, multiple legislative provisions – that is, both s. 132(1) and the enforcementprovisions of the TEA – would apply to the same facts.

If that were the case, the following principles set out by Ruth Sullivan, in StatutoryInterpretation, 3d ed (Toronto: Irwin Law, 2017), would apply (at 318–319): 1) The overlapping provisions do not conflict and, since both apply, the court gives effect to both. 2) The overlapping provisions do not conflict, but the court concludes that one of the provisions was meant to be exhaustive andtherefore applies to the exclusion of the other. 3) The overlapping provisions might conflict, but the conflict is avoided through

interpretation. 4) The overlapping provisions conflict, and, in order to resolve the conflict, the court applies the paramountcy rule. [27] In this case, it is my view that the TEA is meant to be exhaustive. As such, the second of these principles would exclude theapplication of s. 132 of the LTA. Let me explain. [28] The TEA creates a comprehensive process to facilitate a municipality collecting tax arrears. In doing so, it intersects andcoordinates with other legislation, but that does not detract from its comprehensive nature.

The City, as described above, must followspecific procedures, provide specific notices and obtain permission from the Board in order to obtain a title. The TEA contains manypoints at which the registered owner of a property can halt the tax enforcement proceedings or redeem the property: (

a) s. 3 to s. 6 – the owner can pay arrears after the City has published an advertisement of the arrears owing and prevent the taxlien from being registered; (

b) s. 19 and s. 22 – after the lien is registered, the owner can pay the arrears and other enumerated expenses and have the tax liendischarged. The City cannot authorize proceedings to obtain title until six months has passed since the lien was registered; (c) s. 23(2) – after the City serves notice it intends to take title to the property, the owner has a further six months to redeem theproperty; and (d) s. 24(1)–(2), s. 26.1(1) and s. 26.1(5) – after the expiration of the six months set out in s. 23(2), the City must serve a finalnotice on the owner.

The final notice may only be served if the Board has provided its consent to the City to proceed. The final noticeprovides a further 30 days to redeem the property before the City can apply to the Registrar to have title issued in its name. The right toredeem continues after the six months has expired if the Board has not yet provided its consent for the final notice to be given. [29] As noted above, the tax enforcement process has a significant and robust safeguard built into it through the involvement of theBoard.

The City is barred from taking title to a property, and extinguishing the right of redemption under the TEA, without the consent ofthe Board. In the matter at hand, the City requested consent on December 18, 2015, but the Board did not give its consent until May 5,2017. The tax lien was registered on May 22, 2014. The title was issued to the City on June 28, 2018. After the tax lien was registered,Ms. Alie-Kirkpatrick had over four years in which she could have halted the tax enforcement proceedings and redeemed the propertyunder the TEA. [30] Ms.

Alie-Kirkpatrick’s argument that mortgagors continue to have a right of redemption under s. 132(

e) of the LTA – sopersons in the tax enforcement process must also have that same right – ignores a fundamental distinction between the two processes.Mortgagees enforce unpaid mortgages through actions for foreclosure or judicial sale under the LCAA. The LCAA does not contain a rightof redemption. That right was codified in s. 132(

e) of the LTA. This stands in stark contrast to the TEA that contains its own specific rights

of redemption. Additionally, s. 3 and s. 4 of the LCAA set out a robust system of direct court supervision of proceedings commenced underthe LCAA. Divisions 5 and 6 of

Part 10 of The Queen’s Bench Rules set out a comprehensive process for such proceedings. There is nocorresponding direct supervision by the court under the TEA. However, there is substantial oversight by the Board because a municipalityis barred from taking title to a property under the TEA unless the Board grants its consent.

The supervisory role of the Board under theTEA has been specifically noted by the Court of Queen’s Bench in Chen v Moose Jaw (City), 2000 SKQB 116 at para 8, 193 Sask R 308.In the matter at hand, that supervision led to consent not being granted for close to 17 months while the parties attempted to come to aresolution. [31] In addition to the redemption processes for the property owner found in the TEA, I note s. 20 of the TEA provides authority forjudgment creditors, holders of builders’ liens and mortgagees to redeem property that is subject to tax enforcement proceedings.

Section21 of the TEA provides for a redemption of only a portion of the parcel of land as opposed to entire redemption. While none of thesecircumstances apply to this matter, the presence of these provisions adds to the force of the argument that the TEA is a complete code inrelation to redemption in property tax enforcement proceedings. [32] In Elliot v Toronto (City) (1999), (ON CA), 118 OAC 362 (CA), the Ontario Court of Appeal addressed thequestion of whether a former owner retains a right to redeem property after the deadline set by the property tax enforcement legislationhad expired.

Associate Chief Justice Morden determined deadlines for redemption in the Municipal Tax Sales Act, RSO 1990, c M-60(repealed), precluded redemption on any other basis after the deadlines had expired. The property tax enforcement system in Ontario wasdetermined to be “a carefully crafted legislative scheme” (Zeitel v Ellscheid, (SCC), [1994] 2 SCR 142 at 152).

Althoughthe legislation in Saskatchewan differs in many aspects, the TEA is also a carefully crafted legislative scheme that comprehensivelyaddresses the enforcement of property tax. [33] The right of redemption contained in s. 132 of the LTA is remedial in nature, and protects property owners, but that does notmean it must be given a broad encompassing

interpretation when there is a separate specific legislative enactment that provides this sameprotection. The TEA, independently and comprehensively, addresses the consumer protection goal sought to be achieved for mortgagors ins. 132 of the LTA. [34] Lastly, the finality of the title obtained by the City under the tax enforcement process is set out in s. 26.1(7), s. 26.1(8) ands. 27(1) of the TEA: Where value greater than the prescribed amount 26.1

(7) On receipt of an application pursuant to this section, the registrar shall issue title to the municipality pursuant to The Land TitlesAct, 2000, and the title is in every respect of the same force and validity and has the same effect as any other title issued pursuant to TheLand Titles Act, 2000.

(8) Where title is issued pursuant to subsection (7), all prior interests are extinguished, subject to: (

a) section 27; and (

b) any interest of the Crown entitled to priority, whether acquired, registered against the title in the Land Titles Registry, or filed in theAbstract Directory established pursuant to The Land Titles Act, 2000, before or after registration of the municipality’s interest based on atax lien.

Certain interests not affected by issue of title 27(1) Subject to subsection (2), after title has issued to the municipality, no person except the municipality or those claiming through orunder the municipality has any estate or interest in or claim to the whole or any part of the parcel of land for which the title has issuedwhere that person’s estate, interest or claim accrued or commenced to accrue before the title was issued. [35] Ms. Alie-Kirkpatrick argues these sections only extinguish registrable interests and a right of redemption is not a registrableinterest.

She argues clearer language is required to extinguish a right of redemption. The City argues these sections extinguish the right ofredemption and reflect indefeasibility of title once title was issued to the City. This argument was not particularly well developed by eitherparty, so I do not believe it is proper to determine the scope of s. 26.1 and s. 27 in this matter.

I will only go so far as to say that s. 26.1 ands. 27 lend further support to the contention that the TEA provides a comprehensive process that extinguishes all rights of redemption oncea title is issued to the City. [36] For these reasons, it is my opinion that the TEA, combined with the PMBA, was intended to deal exhaustively with theenforcement of tax arrears.

It would accordingly be applied to the exclusion of s. 132 of the LTA, even if the definition of mortgage ins. 2(1)(cc) of the LTA – and, thus, in s. 132 – was interpreted to include a tax lien. [37] The right to resort to a separate statutory scheme and apply to the Court of Queen’s Bench to redeem the property under s. 132of the LTA would undermine the tax enforcement process. A property owner, or former property owner, does not have the right to access aparallel or complementary system that provides a right of redemption under s. 132 of the LTA. As a result, Ms.

Alie-Kirkpatrick does nothave an enduring right of redemption under the LTA or otherwise. B. Are the City’s decisions after it obtains title subject to judicial review? 1. Decisions that are challenged by Ms. Alie-Kirkpatrick

[38] Ms. Alie-Kirkpatrick has not been consistent in the identification of the specific City decisions she is challenging. At theargument of the appeal, Ms. Alie-Kirkpatrick’s counsel was asked to specifically state the City’s decisions for which she seeks judicialreview. In response, her counsel identified the following decisions as being unreasonable and subject to judicial review: (

a) the City determined the conditions on which it would sell the property back to Ms. Alie-Kirkpatrick after it had obtained title.The condition that is being challenged is the City’s decision to require that Ms. Alie-Kirkpatrick pay the RBC judgment as part of thepurchase [the RBC term]; and (

b) the City decided to refuse to refer the matter of the repurchase to the Board under s. 9 of the PMBA, and further refused torefer the matter to City Council to decide if the matter would be referred to the Board under s. 9 of the PMBA, because there is noagreement between the City and Ms. Alie-Kirkpatrick for the repurchase of the property. 2. General principles [39] The Court of Queen’s Bench does not have the jurisdiction to review every decision made by a decision-maker that affects amember of the public.

As set out in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, 421 DLR(4th) 381 [Highwood], judicial review is only available under the following circumstances (at para 14): (a) “there is an exercise of state authority”; and (b) “that exercise is of a sufficiently public character”.

See also J.W. v Canada (Attorney General), 2019 SCC 20 at para 101, 431 DLR (4th) 579 (per Côté J. concurring); Bell v Civil Air Searchand Rescue Association, 2018 MBCA 96 at para 6, [2018] 12 WWR 114; Quewezance v Federation of Sovereign Indigenous Nations,2018 SKQB 313 [Quewezance]; and C & D Septic Ltd. v Prince Albert (City), 2018 SKQB 185, 46 Admin LR (6th) 303 [C & D Septic]. [40] There is no dispute the City was exercising state authority. The contentious issue is whether the City’s exercise of stateauthority in making the impugned decisions regarding the potential sale of the property back to Ms.

Alie-Kirkpatrick was of a sufficientpublic character to be subject to judicial review. [41] Some decisions made by public bodies are private in nature and not subject to judicial review: Highwood (at para 14). In AirCanada v Toronto Port Authority, 2011 FCA 347, [2013] 3 FCR 605 [Air Canada], Stratas J.A. stated that when considering “the public–private issue, all of the circumstances must be weighed … [to determine] whether a matter is coloured with a public element, flavour orcharacter sufficient to bring it within the purview of public law” (at para 60).

The Federal Court of Appeal then set out a non-exhaustivelist of factors to consider when deciding whether an action is of sufficient public character to warrant judicial review. Those factors can besummarized as follows: (

a) the character of the matter for which review is sought; (

b) the nature of the decision-maker and its responsibilities; (

c) the extent to which a decision is founded in and shaped by law as opposed to private discretion; (

d) the body’s relationship to other statutory schemes or other parts of government; (

e) the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by apublic entity; (

f) the suitability of public law remedies; (

g) the existence of a compulsory power; and (

h) an “exceptional” category of cases where the conduct has attained a serious public dimension. See also Setia v Appleby College, 2013 ONCA 753 at paras 33–34, 370 DLR (4th) 356, Quewezance at para 29, and C & D Septic atparas 17–18. [42] The Chambers judge did not engage in a detailed analysis of the factors to determine if the challenged decisions in this matterwere of a sufficient public character to permit judicial review. He referred to C & D Septic and accepted the City’s submission thatMs.

Alie-Kirkpatrick was asking him to “enforce a contractual proposal, which the City did not agree to, by forcing the City to exercise itsdiscretion to request relief from the [Board]” (quoting the City’s brief of law, Chambers Decision at para 25). The Chambers judgeconcluded “this matter is private, privileged and not subject to judicial review” (at para 26). [43] There is conflicting authority on the standard of review applicable to a determination of whether such a matter is subject tojudicial review.

In L’Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12, 542 AR 68 (WL) (leave to appeal to theSCC refused, ), Slatter J.A. described the standard of review as follows: [15] The test for the availability of judicial review is a question of law, reviewed for correctness: Alberta (Minister of Municipal Affairs)v. Alberta (Municipal Government Board), 2002 ABCA 199 (Alta. C.A.) at para. 24, (2002), 6 Alta. L.R. (4th) 199, 312 A.R. 40 (Alta.C.A.).

Whether judicial review is available in particular circumstances is sometimes a mixed question of fact and law, or engages anelement of discretion, both of which would be reviewed for reasonableness, absent an error of principle: Canadian Pacific Ltd. v. Matsqui

Indian Band, (SCC), [1995] 1 S.C.R. 3 (S.C.C.), at 32, 64. [44] The New Brunswick Court of Appeal also applied a correctness standard to this determination: Port of Dalhousie Inc. vMaltais, 2011 NBCA 84 at para 7, 343 DLR (4th) 114. However, in Wall v Highwood Congregation of Jehovah’s Witnesses (JudicialCommittee), 2016 ABCA 255 at para 13, 404 DLR (4th) 48 (rev’d, 2018 SCC 26, [2018] 1 SCR 750, but not on the issue of standard ofreview), the majority applied a reasonableness standard and framed the standard of review as follows: [13] The availability of judicial review is discretionary.

Therefore, the standard of review is one of deference unless the conclusion isunreasonable, or has been reached on the basis of irrelevant or erroneous considerations, a wrong principle or as a result of givinginsufficient or no weight to a relevant consideration: Milner Power Inc v Alberta (Energy and Utilities Board), 2007 ABCA 265 atpara 16, 417 AR 115. [45] In the matter at hand, the standard of review for this issue was not addressed in any detail by either party.

Given that the resultin this matter is the same regardless of whether a standard of correctness or a standard of reasonableness is applied, I will not furtherexamine the standard of review. That determination is best left for another day in another matter with the benefit of full argument. 3. The City’s decision to include the RBC term [46] The evidence that remains after the application to strike was granted is sparse with regard to the negotiations and conditionsrequired by the City. It was agreed by the parties that the City required the RBC judgment to be paid as part of the repurchase byMs.

Alie-Kirkpatrick, but there was no further explanation for this requirement. I will examine the factors set out in Air Canada todetermine if the decision to require the RBC term is a decision of a private or public nature. a. The character of the matter for which review is sought [47] Under this factor, it is relevant to consider whether the decision relates to a private, commercial matter or a matter of broaderimportance to members of the public. The application of this factor was described in Air Canada as follows: [52] Every significant federal tribunal has public powers of decision-making.

But alongside these are express or implied powers to act incertain private ways, such as renting and managing premises, hiring support staff, and so on. In a technical sense, each of these powersfinds its ultimate source in a federal statute. But, as the governing cases cited below demonstrate, many exercises of those powers cannotbe reviewable. For example, suppose that a well-known federal tribunal terminates its contract with a company to supply janitorialservices for its premises. In doing so, it is not exercising a power central to the administrative mandate given to it by Parliament.

Rather, itis acting like any other business. The tribunal’s power in that case is best characterized as a private power, not a public power. Absentsome exceptional circumstance, the janitorial company’s recourse lies in an action for breach of contract, not an application for judicialreview of the tribunal’s decision to terminate the contract. [48] There are numerous examples where the courts have found a state actor to not be engaging in activities of a public nature.

Forexample, in DRL Vacations Ltd. v Halifax Port Authority, 2005 FC 860, 274 FTR 293, the Halifax Port Authority’s decision to not leaseretail space to a specific business was a purely commercial enterprise and, therefore, the decision was not appropriate for judicial review.In Cairns v Farm Credit Corporation, (FC), 49 FTR 308 at para 1 (WL) (FCTD) [Cairns], the Court described aprivate relationship with regard to the negotiation of a settlement: [1] The plaintiffs in this action are Canadian farmers who borrowed money from the Farm Credit Corporation (hereinafter “F.C.C.”),subsequently fell into arrears on their payments, and were dissatisfied with the settlement options offered to them by the F.C.C.

Althougheach plaintiff’s fact situation is different, they are generally alleging that they were treated unfairly and dealt with in an inconsistentfashion by the F.C.C. during negotiations regarding their outstanding loans. They claim that during the course of these negotiations,F.C.C. representatives led them to believe that the only option available to such financially distressed farmers, other than a buy-out, wasthe voluntary transfer of the title to their mortgaged farm lands, with a lease-back of the same, in satisfaction of their debt.

The Court in Cairns found that Farm Credit Corporation was acting within its private powers that were incidents of its authorized businesswhen it negotiated the settlement contracts and, therefore, the decisions made by Farm Credit Corporation were not subject to judicialreview. [49] Returning to the matter at hand, an examination of the precise nature of the decision is required. The timeline of events isimportant to the determination of whether the challenged decision is of sufficient public character. The City received title on June 28,2018.

The challenged decision regarding the RBC judgment occurred after the ORT hearing was adjourned in September of 2018. Oncethe City received title, the City became the landlord and Ms. Alie-Kirkpatrick became the tenant under the RTA. The ORT hearingcommenced, but the parties adjourned the hearing to attempt to negotiate terms upon which the City would be willing to sell the propertyback to Ms. Alie-Kirkpatrick. The City was under no obligation to enter into such negotiations or to sell the property back to Ms. Alie-Kirkpatrick.

It had remedies under the RTA that it was enforcing through an ORT hearing and a right to sell the property under s. 31 of theTEA. The sales negotiations were entered into voluntarily. [50] At the point the parties engaged in negotiations for the sale of the property, the City was negotiating to enter into a privatecontractual arrangement to sell the property back to Ms. Alie-Kirkpatrick. The City’s determination of the terms to be included in such acontract are more akin to a private commercial dealing than a matter with a public character.

The City’s decision to enter into negotiationsafter title had been acquired and to insist on the RBC term does not have a broader importance to members of the public. It must be noted,however, that this does not diminish the impact of the decision on Ms. Ali-Kirkpatrick. But this factor weighs heavily in favour of thisdecision being a private matter not subject to judicial review. b. The nature of the decision-maker and its responsibilities [51] This factor weighs in favour of the decision being of sufficient public character. The City is a municipality, created through

provincial legislation. It is given the public responsibility of collecting tax arrears through the TEA. The decision by the City thatMs. Alie-Kirkpatrick is challenging is related to the responsibilities of the City under the TEA, although the impugned decision occurredafter the City had obtained title. c. The extent to which a decision is founded in and shaped by law as opposed to private discretion [52] When a decision is authorized by or emanates directly from a public source of law, the decision is more likely to be a publicmatter suitable for judicial review.

Matters that are based on power not authorized by legislation are more likely to be considered outsidethe purview of judicial review: Air Canada at para 60.

In Irving Shipbuilding Inc. v Canada (Attorney General), 2009 FCA 116 at para 21,[2010] 2 FCR 488 [Irving Shipbuilding] (leave to appeal to the SCC refused, ), in the context of a decision made by apublic official involving a contract, the Federal Court of Appeal held that judicial review will be limited when a decision involvesconsiderable discretion and is governed in large part by the private law of contract. [53] The decision by the City to require the RBC term has its genesis – indirectly – in a public source of law (the tax enforcementprocess), but the decision occurred within a private negotiation.

There is no provision in the TEA requiring the municipality to enter intonegotiations with the former registered owner concerning the purchase of the property. To the contrary, s. 31 of the TEA requires the Cityto make the property available for public sale within one year of acquiring title.

The City can choose to request relief from thisrequirement through s. 9 of the PMBA, if it has entered into an agreement for sale with the former owner of the land, but it is notstatutorily required to enter into any negotiations after it has taken title. [54] There are no guiding principles or requirements set out in the TEA for how such a negotiation is to take place between amunicipality and a former registered owner or what terms may or may not be required.

Section 9 of the PMBA only applies once theparties have successfully reached an agreement. This factor weighs in favour of the terms sought to be included by the City beingconsidered a private matter. d. The body’s relationship to other statutory schemes or other parts of government e. The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influencedby a public entity [55] These factors have applicability when the decision-maker is further removed from the government.

In this matter, the City is alevel of government, which already weighs in favour of the decision being a public decision. These two factors do not otherwise apply tothis matter. f. The suitability of public law remedies [56] If public law remedies would be useful – due to the nature of the matter – then the availability of those remedies weigh in favourof the decision having sufficient public character: Air Canada (at para 60), and Irving Shipbuilding (at paras 51–54). In written argumentto this Court, Ms.

Alie-Kirkpatrick submits the remedies of certiorari and mandamus are applicable: the remedy of certiorari to quash theCity’s decision and refer it back to the City with an explanation of how s. 9 of the PMBA is to operate, or mandamus to require the City torequest relief under s. 9 of the PMBA. [57] Sara Blake briefly describes these two remedies in Administrative Law in Canada, 6th ed (Toronto: LexisNexis, 2017) at 196–197: ¶7.12 Certiorari is a Latin word that means “to be better informed”.

It is a writ issued by a superior court requiring an inferior tribunal todeliver up its record so that its decision may be reviewed and, if appropriate, set aside. Historically it was a two-step process by which theapplicant first persuaded the court that there is ground to compel the tribunal to deliver the record, followed by a second step involvingreview of the record for error. ¶7.13 Mandamus is a writ issued by a superior court compelling a public official to perform a legal duty. [58] For certiorari to be available, there must be a final decision that can be quashed: Donald J.M. Brown and John M.

Evans,Judicial Review of Administrative Action in Canada, loose-leaf (2018, Rel 4) vol 1 (Toronto: Thomson Reuters, 2017) at 1:2230. Thisremedy is not applicable to the City’s position, taken during contract negotiations, that the RBC term must be included in the contract.

TheCity’s insistence on the RBC term is not the type of decision that can be quashed. [59] Mandamus is only available if the applicant has a legal right to have the act performed, the tribunal is under a correspondinglegal duty to so act, and the tribunal has been requested to act and has refused to do so (Administrative Law in Canada at 250–251): ¶9.17 The legal right and corresponding duty must be found in a statute, regulation or binding order.

Mandamus is not available to enforcepolicy or a contractual right. ¶9.18 The first and second requirements are not met if the statute grants discretion to the decision-maker. Mandamus is not availablebecause there is no legal right to have the requested act done nor a legal duty to do it. However, if a tribunal refuses even to considerwhether to act, a court may order it to consider the issue.

A court may order a tribunal to exercise its statutory discretion, but not whichway to decide, unless the discretion has in fact been exercised and all that remains is the implementation of the decision, or if it is clearthat the tribunal would have granted the request but for one improper consideration. (Footnotes omitted) [60] In Saskatchewan (Attorney General) v Saskatchewan Association of Architects (1979), (SK CA), 108 DLR(3d) 441 (Sask CA) at para 14, Culliton C.J.S. stated that mandamus is not available to force a tribunal to exercise its discretion in a

particular way: see also Kuzminski v Regina (City) , 2000 SKQB 317 at paras 9–10 , 196 Sask R 229. [61] The remedy of mandamus is not available to force the City to exercise its discretion in a certain way with regard to the RBC term. Ms. Alie-Kirkpatrick did not have a legal right to reach an agreement with the City, and the City did not have a corresponding legal duty to reach an agreement with her, let alone to do so on terms set by a court on judicial review. There are no grounds for the remedy of mandamus in this matter. g.

The existence of a compulsory power [62] The existence of a compulsory power over the public at large or a defined group may be an indicator that the decision is public in nature. Ms. Alie-Kirkpatrick asserts there is a compulsory element to the relationship resulting from the TEA and the PMBA . [63] The tax enforcement scheme provided through the TEA constitutes a compulsory power that the City has over the public at large. The City is obligated to collect taxes and uses the TEA processes to enforce a landowner’s obligation to pay those taxes.

The public does not have the option to opt-out of this compulsory power at the enforcement stage. However, in this matter, the impugned decisions arose after the City had already taken title to the property under its compulsory powers and the parties had voluntarily entered into negotiations to sell the property to Ms. Alie-Kirkpatrick. If Ms.

Alie-Kirkpatrick wants to buy her long-term home back, she has only two options: enter into negotiations with the City to buy it back or attempt to purchase it when it is offered for sale to the public, but these limited choices do not transform the voluntary sales negotiations into the exercise of a compulsory power by the City. h. An exceptional case where the conduct has attained a serious public dimension [64] Exceptional circumstances are, by definition, a rare event.

In Air Canada (at para 60 ), the Court gave examples of cases where fraud, bribery, corruption, and human rights violations transformed a private matter into one of greater public import. As set out in Irving Shipbuilding (at para 62 ), the alleged misconduct must have the potential to undermine the public confidence in the essential integrity of the process. Ms. Alie-Kirkpatrick has not raised any issues that would transform this matter into an exceptional case with a serious public dimension. i.

Conclusion on the City’s decision to require the RBC term [65] Taking all of the factors into account, I cannot conclude the Chambers judge erred in determining the City’s decision for the terms of the sale (including the RBC term) was private in nature and not subject to judicial review. The City’s decision to require the RBC term is a private contractual decision, which is not subject to judicial review. The City voluntarily entered into negotiations with Ms. Alie- Kirkpatrick in an attempt to create a private contract to sell her the property.

The terms deemed by the City to have been necessary for that contract are not of a sufficient public character to permit judicial review. Subjecting a public body to judicial review of its negotiation positions, and its choice of terms to include in a private contract for the sale of property, oversteps the acceptable boundaries of judicial review. 4. The City’s decision to refuse to refer the matter to the Board [66] The second decision challenged by Ms.

Alie-Kirkpatrick is the City’s refusal to refer the matter to the Board under s. 9 of the PMBA : Power to relieve municipality from certain provisions of The Tax Enforcement Act 9 Where the board has given its consent pursuant to subsection 7(1) or (2) without requiring the municipality to enter into an agreement pursuant to

section 8, the board may, at the request of the municipality, by order made before or after title to the land affected by the consent is issued pursuant to

section 24 of The Tax Enforcement Act , relieve the municipality with respect to that land from the restrictive provisions of

section 31 of The Tax Enforcement Act on the condition that the council of the municipality will enter into an agreement for sale, lease option agreement or other agreement, on terms approved by the board, with: (

a) the assessed owner of the land or with the person who was the assessed owner immediately before the issuance of the title; or (

b) any other person named in the order who then has, or who immediately before the issuance of title had, a legal or equitable interest in the land. [67]

Section 9 of the PMBA is a mechanism by which the City can avoid the sale provisions found in s. 31 of the TEA and sell the property back to the former owner or to any person who had a legal or equitable interest in the land. The

section requires the Board to approve any such sale agreement. This approval makes sense because the Board has a supervisory function and this requirement provides a mechanism to prevent unfairness to any person mentioned in s. 9 (a)–(

b) under a private contract to sell the land. [68] It is my opinion that s. 9 of the PMBA would only have application in this matter if the City and Ms. Alie-Kirkpatrick had successfully negotiated an agreement to sell the property back to her. They have been unable to do so. The City insisted on the RBC term and Ms. Alie-Kirkpatrick would not agree to it. There is, therefore, no agreement. If there is no agreement, the matter cannot be referred to the Board under s. 9 of the PMBA , because there is nothing for it to consider approving.

The matter never reached the stage where s. 9 of the PMBA could be engaged. [69] From her submissions, it appears Ms. Alie-Kirkpatrick believes the Board will act as an arbitrator, balance interests and set the

terms of an agreement between the parties if the parties cannot agree. In submissions, she referred to the Board in terms of it adjudicatingthe dispute regarding the terms of the sale. The Board has no such authority under s. 9 of the PMBA. It can review the terms of anagreement the parties have reached for the sale of the property and then agree to relieve the City of its obligations under s. 31 of the TEAor refuse to do so. If there is no agreement, the Board cannot create or impose an agreement. Given the absence of an agreement betweenthe parties, s. 9 of the PMBA has no application to this matter.

For this threshold reason, the City’s decision to not refer the matter to theBoard under s. 9 of the PMBA is not subject to judicial review. The Chambers judge did not err when he summarily dismissed this portionof Ms. Alie-Kirkpatrick’s application. C. Is the clean hands doctrine applicable to this matter? [70] The Chambers judge found Ms. Alie-Kirkpatrick’s application was barred on the basis of the clean hands doctrine. Given myearlier determinations that the application was properly dismissed on the substantive grounds, I see no utility in analyzing the applicationof that doctrine.

The principles related to the application of the clean hands doctrine are set out in Bolianatz Estate v Simon, 2006 SKCA16 at paras 49–63, 264 DLR (4th) 58. I will merely note that the clean hands doctrine applies only to equitable remedies, not statutoryremedies, and express my doubt that the doctrine barred Ms. Alie-Kirkpatrick’s application in this matter. D. Did the Court of Queen’s Bench err in awarding costs? [71] The Chambers judge ordered costs payable to the City on a party–party basis.

The City calculated the costs on the basis ofColumn 1 of the Court of Queen’s Bench Tariff of Costs and produced a bill of costs in the amount of $2,825. [72] Ms.

Alie-Kirkpatrick recognizes the general rule is that costs follow the event and are awarded to the successful party.However, she asserts costs should not have been ordered because the litigation involved a form of public law advocacy, the issues extendbeyond the interests of the parties, the issues she raised were novel, the City has a superior ability to bear the costs, she is indigent and theorder of costs will further hamper her financial ability to regain title to her home. She submits each party should have been ordered to beartheir own costs. The City opposes any variation to the costs order.

The City submits costs awards serve the purposes of encouragingsettlement, deterring frivolous actions, discouraging unnecessary steps and sanctioning vexatious behaviour. The City submits theChambers judge had ample grounds to rule as he did on costs and did not err in the exercise of his discretion. [73] An award of costs is a discretionary decision that is entitled to significant deference upon appeal: Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA). This Court is not entitled to re-examine the matter and substitute its own discretion forthat of the Chambers judge.

On the application of this deferential standard, I can see no room to interfere with the Chambers judge’sdecision that the City was entitled to costs and to set the costs in the terms he did. The award of costs was within his discretion to grant.This ground of appeal has no merit. V. Conclusion [74] The appeal is dismissed in its entirety. The City requested costs of the appeal and shall have those costs in the usual way. “Tholl J.A.” Tholl J.A.I concur. “Tholl J.A.”perRichards C.J.S.I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.