Canada: Moot Gets The Boot: NSUARB Mootness Decision

Introduction

The Nova Scotia Utility and Review Board recently dismissed an appeal as "moot" because its decision would have no practical or legal effect on the parties in Ashcroft Homes Inc. (Re), 2017 NSUARB 4. Ashcroft Homes applied for a development permit to build a large university residence on an Inglis Street property next to Saint Mary's University. The proposed residence consisted of two towers, which were to be 31 and 28 stories tall. The proposal drew significant attention in the community, including criticism from south end Halifax residents. The permit was refused. Ashcroft appealed the refusal to the Board. During the appeal process, Ashcroft's Agreement of Purchase and Sale for the land was terminated by the land owner. Intervenors and the Respondent brought a motion claiming that, because Ashcroft no longer had any interest in the land, the appeal was now moot. The Board agreed. In reviewing the law on mootness, the Board determined there was no practical effect or public interest in deciding whether to grant a permit which Ashcroft could not use.

History

The Roman Catholic Episcopal Corporation of Halifax ("RCEC") owned the property in question. The RCEC decided to sell the property. The Appellant, Ashcroft, was the successful bidder in a request for proposal process to purchase the land. Ashcroft proposed to develop a two-tower building as residential accommodation for university students on the property. Ashcroft applied to the Halifax Regional Municipality ("HRM") for a development permit, which was refused. Ashcroft appealed the decision. The closing date for the purchase passed and, when no development permit was issued, RCEC terminated the Agreement of Purchase and Sale ("APS"). Saint Mary's University ("SMU") then submitted a successful bid to purchase the property. As parties were preparing written closing submissions on the appeal, intervenors to the appeal as well as the HRM argued the appeal had become moot. One of the intervenors was SMU, represented by Cox & Palmer's Kevin Latimer and Jack Townsend.

The leading authority on mootness is the Supreme Court of Canada judgment in Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342. The Supreme Court recognized that a court may decline to decide a case which raises merely a hypothetical or abstract question. If the decision of the court will have no practical effect on the rights of the parties, the court will decline to decide the case.

The Supreme Court developed a two-step analysis in Borowski. The first step asks whether there remains a live controversy, otherwise the issue is moot. The second step asks whether, despite the issue being moot, the court should exercise its discretion to decide the case.

The rationales underlying the mootness doctrine include that an adversarial context ensures that issues are argued thoroughly and fairly, that judicial resources should not be used for making decisions that serve no practical effect, and that courts should serve their proper law-making function. With those policy rationales in mind, the Court recognized situations where it may exercise its discretion to decide a moot case:

• Where the decision will have some practical effect on the rights of the parties, despiteit not having the effect of determining the controversy which gave rise to the action;
• Where the case represents one of a recurring nature, but brief duration, so it is likely to evade judicial review; and
• Where the case raises an issue of public importance where a resolution is in the public interest.

Analysis

The Board applied the Borowski framework. Under the first step, the Board determined that the issue had become moot. The Board recognized that Ashcroft's application for the permit was premised on the fact that it was a party to an agreement to purchase the property. The basis for the appeal was the refusal of that permit. The Board concluded that if Ashcroft was successful on its appeal, it would not be entitled to make use of the development permit. Therefore a decision would be of no practical benefit to Ashcroft. There was no longer any tangible or concrete dispute underlying the appeal, rendering it moot.

The Board went on to consider whether the decision would have some practical effect on the rights of the parties. Ashcroft argued that litigation was potentially forthcoming with regard to the APS, and that a decision on the appeal would be relevant to those potential proceedings. The Board found that this was insufficient. It could not assess whether a decision on the appeal would have a potential impact on litigation contemplated by Ashcroft.

The Board then considered whether a sufficient adversarial context existed between the parties, which ensures that parties will argue their position to its fullest extent. Ashcroft argued that the continued adversarial context principle was of little concern as the oral hearing on the merits had already occurred, and the Appellant had already filed its written submissions, meaning the Board could be assured to have heard a full argument. The Board rejected this argument, as the respondents and intervenors would still be tasked with the time and expense of responding to the Appellant's extensive brief.

The Board then considered whether special circumstances existed to justify using further judicial resources on deciding the appeal. Ashcroft argued that the Board would have to decide issues that would have practical effects for the parties in making future permit applications on similarly zoned properties. The Board dismissed this argument, as there was no evidence Ashcroft owned other land in the city, and the impact of the decision on future plans of the parties for the land in question or similarly zoned lands would be merely speculative.

As the issue was not one of a recurring but brief nature, the Board then moved to the question of whether there was sufficient public importance requiring resolution of the issue in the public interest. The property in question was uniquely zoned for university use, with few other properties in the city zoned as such. The evidence also raised issues of interpretation of planning strategies for the specific planning area. Further, development permits are considered on specific applications before development officers. The Board determined the issues did not amount to having sufficient public importance to override the usual practice of dismissing moot appeals.

Finally, the Board noted the requirement to demonstrate an awareness of its proper law-making function, and to not depart from its traditional role. The Board recognized that the principle of stare decisis is not applicable to Board decisions, and that the Board's legal conclusions are not binding on courts. Determining a moot issue for the purpose of providing future guidance would be departing from the Board's usual appellate role in planning matters.

Conclusion

The Board's decision effectively reviews and applies the Borowski principles of mootness in the planning context. Ultimately, in doing so, the Board concludes there will be no practical effect in granting or denying the development permit. A careful analysis of whether there is a policy or public interest reason for hearing the appeal is carried out. In conducting this analysis, the Board recognizes that it is not its role to determine a moot issue simply because it may help one of the parties determine whether to pursue separate contemplated litigation. The takeaway for municipal planners, lawyers, and developers is that the Board will not entertain appeals where a verdict will have no practical or legal impact.

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