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POWERS OF MUNICIPALITY - Municipal property - Use of public property 

Monday, September 21, 2020 @ 9:32 AM  

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Appeal by the Prince Albert Right to Life Association (PARLA) and Hettrick from the dismissal of their application for judicial review of a decision of the City of Prince Albert. Cross-appeal by the City from the costs order made against it. Prior to 2017, the City allowed PARLA to use a city flagpole to fly its right-to-life themed flag to increase public awareness about its cause. In 2016, the City adopted a new flag protocol policy. It received several complaints about PARLA’s flag. In 2017, it dismissed the appellants’ application to fly their flag. In 2018, the City amended its flag policy to end the practice of allowing public use of flagpoles. The chambers judge found the application was moot, given the policy no longer allowed for public access to flagpoles. She awarded costs of $6,000 against the City for failing to follow its own policy, failing to provide reasons and proceeding in a procedurally unfair manner.

HELD: Appeal and cross-appeal dismissed. The chambers judge did not err in declining to determine the application because it was moot. The possibility of granting a declaration was not determinative of whether a live controversy continued to exist. The chambers judge did not err in finding the relief sought, to direct the matter back to the City, was no longer practically available given the repeal of the flag policy. She correctly concluded there remained no live controversy between the parties. The chambers judge did not err in not exercising her discretion to determine the matter in any event as there was no ongoing adversarial context, the case would not settle a recurring point of law and it did not present issues of broad public importance beyond the litigants. The costs award was not arbitrary or unreasonable. The chamber judge’s findings in awarding costs against the City were not based on presumptions but were grounded in facts that evidenced a mishandling of the appellants’ application.

Prince Albert Right to Life Association v. Prince Albert (City), [2020] S.J. No. 299, Saskatchewan Court of Appeal, R.K. Ottenbreit, L.M. Schwann and J.D. Kalmakoff JJ.A., August 10, 2020. Digest No. TLD-September21202000