Wilson Olive and Friends of the Aquifer v Keys (Rural Municipality), 2020 SKCA 124

Court of Appeal for Saskatchewan Docket: CACV3472 Citation: Wilson Olive and Friends of the Aquifer v Keys (Rural Municipality),2020 SKCA 124Date: 2020-11-04Between:Wilson Olive and Friends of the AquiferRespondents/Appellants (Appellants)AndRural Municipality of Keys No. 303Applicant/Respondent (Respondent)Before: Richards C.J.S., Caldwell and Kalmakoff JJ.A.Disposition: Application grantedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice KalmakoffOn application from: 2019 SKMB 76 , 2019 SKMB 076, ReginaApplication heard: October 9, 2020Counsel: Milad Alishahi and Allison Graham for the Applicant Merrilee Rasmussen, Q.C., and Jaime Carlson for the Respondents Richards C.J.S. I. Introduction [1] This is an application by the respondent, the Rural Municipality of Keys No. 303 [RM], to quash the appeal of Wilson Oliveand Friends of the Aquifer [collectively, “Mr. Olive”] on the ground that it is moot. [2] As explained below, the RM’s application should be granted. Mr.

Olive’s appeal is moot and this is not a situation where itwould be appropriate for the Court to proceed notwithstanding that fact. II. background [3] The key features of the background to this application can be summarized as follows: (

a) The RM’s Official Community Plan speaks to the allowable number of sites on a quarter-section of land in these terms: 4.3.2 In any area of the municipality designated to be an agricultural district there shall be a maximum of 3 sites within any quarter-section (as registered on a township plan) that may contain a farmstead, residence, or commercial development which may allow anaccessory residential use. “Farmstead” is not defined in the Official Community Plan. However, s. 10.2.3(2) of the Plan indicates that “[t]he

interpretation of wordsas contained in the zoning bylaw shall apply to the words in this statement”. (

b) The RM’s Zoning Bylaw, as it read when this story began, provided as follows with respect to allowable farmsteads: 5.3.4 Farmsteads

(1) A farmstead may contain the following where located on the same parcel: (

a) A residence for the operator of an agricultural use. (

b) A bunkhouse or additional residence for employees and partners of the operator engaged in the agricultural operation. (

c) Facilities for the temporary holding of livestock raised in an operation, in lesser numbers than constitutes an I.L.O. (unless approved asan I.L.O.). (

d) Buildings for permitted accessory and ancillary uses. (

c) In February of 2018, the Hutterian Brethren of Crystal Lake [HBCL] sought permission from the RM to construct a collectivedwelling. (

d) The RM’s administration and council concluded that the Zoning Bylaw should be amended and, in May of 2018, the approachto “farmsteads” in the Bylaw was changed as follows: 1. THAT the following

section 5.3.4 (

b) be amended as follows: a.

Section 5.3.4 Farmsteads

(1) A farmstead may contain the following where located on the same parcel: (

b) A bunkhouse, additional residence, or collective dwellings for employees and partners of the operator engaged in the agricultural operation. 2. THAT the following

Definitions be added as follows:

PART II –

DEFINITIONS Bunkhouse – A large open room with multiple beds or cots used for farmhands in a ranching or farming operation. Collective Dwellings – As declared to Stats Canada during the Census Period. (

e) On June 19, 2018, the RM council passed a resolution approving what the minutes of the council meeting referred to as HBCL’s “development application”. (

f) Mr. Olive appealed to the local Development Appeals Board [Board] pursuant to s. 219(1) (

a) of The Planning and Development Act, 2007 , SS 2007, c P-13.2 [ Act ]. He asked that what he called the “development permit” issued by the RM to HBCL be “cancelled” and be held to be of no effect for so long as the Zoning Bylaw (as amended) was inconsistent with the Official Community Plan. (

g) The Board dismissed Mr. Olive’s appeal. It found there was no inconsistency between the Official Community Plan and the amended Zoning Bylaw. (

h) Mr. Olive then appealed to the Planning Appeals Committee of the Saskatchewan Municipal Board [Appeals Committee]. He argued, in relevant part, that (

i) the Zoning Bylaw amendment was inconsistent with the Official Community Plan and was therefore invalid, (ii) the Zoning Bylaw amendment was invalid because some members of the RM council who had voted on it had been in a conflict of interest, (iii) the Zoning Bylaw amendment was invalid because HBCL had not applied for it, and (iv) the development application made by HBCL was invalid because the Zoning Bylaw amendment that authorized it was invalid. (

i) On July 26, 2019, the Appeals Committee dismissed Mr. Olive’s appeal. It referred to s. 219(1) of the Act which speaks to the right of appeal to the Board and, in particular, to s. 219(1) (a) – the provision relied on by Mr. Olive – which provides for an appeal if there is “an alleged misapplication of a zoning bylaw in the issuance of a development permit”. The Appeals Committee concluded that, notwithstanding Mr. Olive’s understanding, there had been no development application and no development permit had been issued. As a result, the Committee found that it did not have jurisdiction to entertain Mr.

Olive’s appeal. The Appeals Committee also concluded that, to the extent Mr. Olive’s appeal was concerned with the validity of the amendment to the Zoning Bylaw, it had no jurisdiction in that regard either. It said its remit was limited to development permits and that only the courts could quash bylaws. (

j) Mr. Olive then sought leave to appeal to this Court. By way of an order dated October 30, 2019, Caldwell J.A. granted leave on two questions: [i] Did the Committee err when it found it did not have jurisdiction under s. 219(1) of The Planning and Development Act, 2007 to hear the appeal as framed by [Mr. Olive]? [ii] Did the Committee err in law or fail to recognise its jurisdiction when it declined to address [Mr. Olive’s] assertion of a denial of procedural fairness at the Board level? (

k) On December 5, 2019, the RM council amended the Zoning Bylaw to provide for a Form A (development application) and a Form B (development permit). (

l) On January 7, 2020, the RM’s Development Officer issued a development permit [2020 permit] to HBCL. (

m) Mr. Olive first obtained a copy of the 2020 permit in September of 2020. He then filed a fresh appeal with the Board. He emphasized several points: (

i) what to him appeared to be the absence of an application in Form A; (ii) the references in the 2020 permit to council resolution 148-2018; and (iii) his ongoing concern that the amendment to the Zoning Bylaw was inconsistent with the Official Community Plan. (

n) On October 2, 2020, the secretary of the Board advised Mr. Olive that his appeal had not been received within 30 days of the date of the issuance of the 2020 permit and hence would not be provided to the members of the Board. (

o) Mr. Olive, says his counsel, has asked the Board secretary to forward his appeal to the Board itself for its consideration and has done so on the basis of his belief that the secretary has no authority to determine that an appeal is out of time. III. analysis [ 4 ] The RM contends the issuance of the 2020 permit and its Development Officer’s decision not to interfere with HBCL’s project have rendered Mr. Olive’s appeal moot. It then goes on to argue that the Court should not exercise its discretion to hear the appeal notwithstanding the mootness problem. [ 5 ] I propose to consider the RM’s arguments by (

a) briefly confirming the principles that govern applications of this kind, (

b) determining whether the appeal is moot, and (

c) examining whether, if Mr. Olive’s appeal is moot, it should be heard and decided anyway.

A. Governing principles [6] There is no dispute about the legal framework that governs the RM’s application. The leading authority is Borowski v Canada(Attorney General), (SCC), [1989] 1 SCR 342 [Borowski]. There, the Supreme Court canvassed the nature of mootnessand established a two-step approach for deciding whether an appeal should be struck as being moot (at 353): 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, thecourt will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but atthe time when the court is called upon to reach a decision.

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

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

A court may nonetheless elect to address amoot issue if the circumstances warrant. See also: Dearborn v Saskatchewan (Financial and Consumer Affairs Authority), 2017 SKCA 63 at para 16 [Dearborn]; Prince AlbertRight to Life Association v Prince Albert (City), 2020 SKCA 96 at para 47 [Right to Life]; Radiology Associates of Regina Medical PCInc. v Sun Country Regional Health Authority, 2016 SKCA 57 at para 15, [2016] 10 WWR 662. B. Is the appeal moot? [7] Speaking generally, an appeal is moot if deciding it will not have the effect of resolving a live controversy.

Writing recently inRight to Life, Ottenbreit J.A. explained as follows: [54] Without attempting to define the term exhaustively, based on the foregoing, I conclude that a live controversy may cease to existin the following circumstances: when the tangible and concrete dispute has disappeared; when the decision will or may no longer actuallyaffect the rights of the parties; where the practical relief sought is no longer available because of alterations in the factual or legal matrixof the case; where the question before the court has ceased to exist or the substratum of the litigation has disappeared; where a decision onthe merits would have no practical effect on the parties’ rights; and where the question the court is now being asked to resolve has beenovertaken by post-decision events or a subsequent decision of a decision-maker. [8] The RM submits this appeal is moot for two independent reasons.

First, it says the 2020 permit has overtaken theseproceedings with the result that a decision by the Court will have no effect on Mr. Olive’s efforts to block HBCL’s development. Second,the RM says this appeal is moot because its Development Officer has indicated that, given the now advanced state of the HBCLdevelopment, he would not take enforcement proceedings against HBCL even if the development is found to be noncompliant with the Actor any bylaw. I will deal with these arguments in turn. [9] The first issue, accordingly, is whether the appeal involves a live controversy between the RM and Mr. Olive.

In my view, itdoes not. The reality is that, since Mr. Olive commenced the proceedings that underpin this appeal, the RM has amended the ZoningBylaw to provide for Forms A and B, and the RM’s Development Officer has issued the 2020 permit in Form B. As a result, the legalityof HBCL’s development approval now turns on the 2020 permit, not on the June 19, 2018, resolution of the RM council that is at issue inthis appeal. [10] Mr. Olive contends, however, that the 2020 permit is tied to the council’s resolution of June 19, 2018.

He points out that the2020 permit carries the application number 2018-148 which is the identifying number of the June 19, 2018, RM council resolution thatpurported to approve the “development application” of HBCL at that time. As well, Mr. Olive notes that the 2020 permit contains, asSchedule A, a reference to the RM council’s June 19, 2018, resolution. All of this leads Mr. Olive to suggest the RM council’s June 19,2018, resolution – what he describes as his original target of legal attack – is the animating decision that underpins the 2020 permit.

Hesuggests the 2020 permit is “just a new piece of paper attached to the same decision”. [11] I am not persuaded by this line of thinking. Regardless of what arguments might be made about the validity of the 2020 permit,the fact remains that HBCL’s existing authorization to proceed with the development flows from the permit, not from the RM council’spurported approval of the development back in 2018. Mr. Olive’s own actions make this point in that he is attempting to appeal the 2020permit to the Board.

If he thought that the validity of the 2020 permit was not consequential or that it was at play in this appeal, therewould be no need to ask the Board to review it. [12] In the end, therefore, I am persuaded that Mr. Olive’s appeal is moot on the basis that it has been overtaken by the 2020 permit.The validity of the RM council’s purported approval of the development in 2018 is no longer a live issue. [13] As indicated, the RM also contends that Mr. Olive’s appeal is moot because its Development Officer has advised that he willtake no enforcement steps against HBCL, come what may.

The Development Officer avers as follows: 15. Because HBC’s development was approved by following the same process for every other development in the RM in 2018 andreceived a Form B development permit in 2020, and because of the significant effort and money already put into the development, if theapproval is found to be invalid, or if the underlying development is found to be in contravention of any provision of the PDA, regulations,any bylaw or any order made pursuant to the PDA, I will use the discretion afforded to me, as per above, not to issue any order pursuant to

s. 242(5). [ 14 ] Section 242(5) of the Act , the provision to which the Development Officer refers, reads as follows: 242(5) In a written order made pursuant to subsection (4), the development officer: (

a) shall specify the contravention; (

b) may direct the person to whom the order is issued to do all or any of the following: (

i) discontinue the development or form of development; (ii) alter the development or form of development so as to remove the contravention; (iii) restore the land, building or premises to its condition immediately before the undertaking of the development or form of development; (iv) complete all work necessary to comply with the zoning bylaw; (

c) shall set a time in which a direction made pursuant to clause (

b) is to be complied with; and (

d) shall advise of the right to appeal the order to the Development Appeals Board. [ 15 ] The RM’s argument on this front raises an issue about whether the Development Officer can lawfully limit or fetter his authority in the way he suggests that he has done. However, it is unnecessary to decide this question, given that I have already found this appeal to be moot because of the effect of the 2020 permit. [ 16 ] As a bottom line, therefore, I conclude that Mr. Olive’s appeal is moot. C.

Should the appeal be heard even if it is moot? [ 17 ] The second issue to be considered in determining whether this appeal should be quashed is whether the Court should exercise its discretion to decide it notwithstanding the mootness problem. I summarized the nature of this inquiry in Dearborn at paragraph 16 : … The second step is to determine whether, notwithstanding that the appeal is moot, the court should nonetheless exercise its discretion to hear the case. That exercise of discretion, according to Borowski , should be undertaken with reference to the underlying basis of the mootness doctrine itself: (

a) the presence of an ongoing adversarial context, perhaps because of the collateral consequences of the outcome of the appeal, (

b) the importance of conserving judicial resources, and (

c) the need for a court to be sensitive to its proper law-making function, i.e. , its role as an adjudicator of disputes affecting the rights of parties. The factors referred to in this passage should not be examined in a rigid fashion. As Sopinka J. indicated in Borowski at page 363, “[t]he principles…may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa”. All of that said, it is useful to examine each of the Borowski considerations in turn. [ 18 ] The first consideration is the existence of an adversarial context.

The RM contends that such a context no longer exists because the approval it gave to HBCL’s development in 2018 has been rendered of no consequence by the 2020 permit and because Mr. Olive’s appeal in relation to the 2020 permit has been rejected by the secretary of the Board. Relying on these two points, the RM says there is no longer any ongoing controversy and therefore no adversarial context. [ 19 ] In my view, the RM misapprehends the adversarial context inquiry outlined in Borowski .

The point with respect to adversarial context is whether, notwithstanding a mootness problem, the issues in a proceeding will be well and fully argued before a court so that it can have the benefit of the “anvil and hammer” dynamic that makes for the competent resolution of disputes. Here, there is no suggestion of any sort that the RM would not oppose or participate in the appeal should it go forward. Indeed, the vigour with which the RM has pursued this application to quash would seem to be proof positive of its continuing interest in the issues raised by Mr. Olive.

In short, there is an ongoing adversarial context here that weighs in favour of hearing the appeal. [ 20 ] I turn then to consideration of what Borowski calls the issue of judicial economy. This factor recognizes that judicial resources are finite. It invites consideration of whether the particular circumstances of a case make it worthwhile to employ such scarce resources to resolve the issues at stake. [ 21 ] The RM says this consideration cuts against proceeding with the appeal.

It submits the issues concerning the jurisdiction of the Appeals Committee on which leave has been granted can be raised in the context of any appeal that Mr. Olive might succeed in taking to the Committee in connection with the 2020 permit. Further, the RM stresses that, in any event, it is unlikely that the question of the validity of the 2020 permit will in fact make its way back to the Appeals Committee given that the secretary of the Board has declined to accept Mr. Olive’s notice of appeal.

The RM also submits that the issues in this appeal concerning the jurisdiction of the Appeals Committee have not been shown to be widespread or recurring and that they are not the sorts of matters that unfold on such a short timeline that they must be considered when moot if this Court is ever going to have the opportunity to pronounce upon them. [ 22 ] Mr. Olive, for his part, suggests that the issues raised by this appeal are bound to reoccur and that it would be unfortunate if they had to be relitigated back up to this Court when, by allowing the appeal to proceed, the Court could deal with them now. Mr.

Olive also emphasizes that the questions concerning the Appeals Committee’s authority or jurisdiction are self-evidently of general importance. [ 23 ] In overall terms, I agree with the RM that the issue of judicial economy weighs against proceeding with this appeal. This becomes apparent by thinking through what will happen if the appeal is argued and Mr. Olive ultimately succeeds in having it decided in his favour. In this regard, it would appear that there are only two tracks open to Mr. Olive. On the first track, Mr.

Olive would find himself back before the Appeals Committee with a Court of Appeal decision that says the Committee has the jurisdiction to entertain his

appeal from the 2018 Board decision. However, that appeal would be beside the point because, as explained above, the RM’s 2018 purported approval of HBCL’s development is no longer the controlling decision. [ 24 ] The second track possibly open to Mr. Olive is one where he would convince the Board to consider his appeal concerning the 2020 permit notwithstanding that, on the face of things at any rate, his appeal is out of time. If Mr. Olive does get the 2020 permit before the Board but does not manage to convince the Board to upset it, he could appeal to the Appeals Committee.

However, at that stage of things, it is unclear how much utility there would be in a decision rendered by the Court in the present appeal. The scope of the first question before the Court – the one concerning the jurisdiction of the Committee to hear Mr. Olive’s appeal “as framed” – is not entirely clear. In his factum, Mr. Olive has in effect taken it to have two dimensions. The first is whether the Appeals Committee has jurisdiction to hear an appeal when there is no development permit.

The second is whether the Appeals Committee can entertain arguments about the validity of bylaws. [ 25 ] The issue about the jurisdiction of the Appeals Committee to hear appeals where there is no development permit would no longer be in play in a return trip to the Appeals Committee concerning the 2020 permit. That would be because any appeal in relation to the 2020 permit would involve a proceeding where there had been an approval granted in Form B.

In other words, the basis on which the Appeals Committee found it had no jurisdiction in the context of the present proceedings would no longer exist and, hence, any decision of this Court on that point would be of no consequence. [ 26 ] As for the issue of the Appeals Committee’s authority to hear a challenge to the validity of a bylaw, it appears that this could have some consequence in a return trip to the Appeals Committee concerning the 2020 permit.

Of course, that would be the case only if the Court addresses that point in its decision and only if the alleged invalidity of the amendment to the Zoning Bylaw were to be part of Mr. Olive’s challenge to the 2020 permit. [ 27 ] Thus, overall, the ongoing utility to Mr. Olive and the RM of a decision of this Court on the first question presented by this appeal would appear to be both quite limited and uncertain. [ 28 ] Continuing to consider what I have referred to as the second track available to Mr.

Olive, what of the other question on which leave was granted in this case, the one concerning the Appeals Committee’s jurisdiction to deal with allegations of conflict of interest? The Court’s answer to that question could relate to a live issue before the Appeals Committee on an appeal concerning the 2020 permit but only if Mr. Olive can somehow tie his original allegation that some council members were in a conflict of interest when they amended the Zoning Bylaw to the Development Officer’s decision to issue the 2020 permit. It is unclear how Mr.

Olive could do this given that the decision to issue the 2020 permit was a decision of the Development Officer , not of the council . After all, s. 2.5(1)(

a) of the Zoning Bylaw provides that, on reviewing an application for development, the Development Officer “shall…issue a development permit for a permitted use”. There is no council involvement in the process. [ 29 ] Thus, although the overall picture might not be wholly clear, it appears that proceeding with this appeal would be of dubious practical consequence or impact on the ongoing controversy about HBCL’s development that underlies these proceedings. By requesting that the appeal be heard and decided, Mr.

Olive effectively asks the Court and the RM to expend time and resources on deciding a case that might well have no on-the-ground effect on the dispute between him and the RM. [ 30 ] I observe too that Mr. Olive has not established that the questions on which leave to appeal has been granted are ones which arise frequently such that a decision of the Court would have some larger or more general utility beyond the four corners of this appeal. I accept, of course, that issues concerning the jurisdiction of a public agency like the Appeals Committee are important by definition.

However, that does not mean they arise on a regular basis and there is nothing before this Court to suggest that they do. Further, to the extent that the potential broader importance of this appeal might nonetheless be taken into account, it is useful to note a case on which leave to appeal has been granted recently: SBLP Southland Mall Inc. v Regina (City) (9 October 2020), CACV3642 (Sask CA). This is a property tax appeal and, as a result, it does not concern the Appeals Committee itself.

However, it does raise the question of whether a committee of the Saskatchewan Municipal Board can deal with arguments based on a denial of procedural fairness. It appears, therefore, that the second issue raised by the present appeal will be answered by the Court even if the RM’s application to quash is granted. [ 31 ] Overall, I conclude that the considerations of judicial economy weigh somewhat heavily against proceeding to hear and decide this appeal. [ 32 ] I turn, lastly, to the third factor flagged in Borowski , the proper role of the judiciary.

It involves consideration of the extent to which, in hearing a moot case, the Court would be departing from its traditional role and improperly intruding into the domain of the Legislature. I see no meaningful concern of that sort here. The issues before the Court in this appeal are specific and narrow and they arise in a context very much at the centre of the Court’s mandate. [ 33 ] As is apparent, this is one of those cases where not all of the Borowski considerations point in the same direction. The notions of an adversarial context and of the judicial role suggest that it might be appropriate to proceed.

On the other hand, concerns about judicial economy cut against hearing the appeal. Overall, and taking into account all of the relevant factors, the balance tips against the idea of hearing the appeal even though it is moot. IV. conclusion [ 34 ] I conclude, for the reasons given above, that the RM’s application should be granted and Mr. Olive’s appeal quashed. [ 35 ] Mr. Olive submits that he should nonetheless receive costs on a solicitor and client basis in relation to the application for leave to appeal and in relation to the preparation of his factum.

He takes this position on the basis that, if the RM believed the appeal was moot, it could have consented to leave being granted and then moved immediately with an application to quash. Instead, notes Mr. Olive, the RM vigorously opposed the application for leave to appeal and brought its application to quash only after insisting that he file his factum. [ 36 ] Costs with respect to the application for leave to appeal were left by Caldwell J.A. to the discretion of the panel hearing the

appeal. As matters have unfolded, this costs decision must be made in the context of this application to quash the appeal. [ 37 ] I am not persuaded that the RM should pay costs in relation to the leave application. It was entitled to oppose Mr. Olive’s attempt to obtain leave knowing that matters would be at an end if the application was denied. It is asking too much to suggest that the RM should not have opposed the leave application and placed all of its eggs in the mootness basket. That said, the RM could have made the issue of mootness a centrepiece of its argument against granting leave but did not.

Accordingly, in all of the circumstances here, I would make no costs award one way or the other in relation to the application for leave. [ 38 ] Mr. Olive’s factum is a different matter. The RM contended from the outset that the appeal was moot. Indeed, it filed an application to quash even before the leave to appeal application had been argued. That application to quash was withdrawn when Caldwell J.A., in Chambers, pointed out that it was premature. In light of the RM’s position on mootness, it is curious that it obliged Mr. Olive to file his factum and only then brought its application to quash.

In the particular circumstances of this case, therefore, I am persuaded that the RM should indemnify Mr. Olive for the solicitor and client costs incurred in the preparation of his factum. [ 39 ] As for the rest of the costs equation, the RM is entitled to costs on Column 2 of the Tariff of Costs in relation to this application. [ 40 ] If Mr. Olive and the RM are unable to agree on how the two sides of this costs order work out by way of a bottom line, the matter will be taxed by the Registrar. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.