Case: Terrigno v. Farrell, 2023 ABCA 323 (CanLII)
Keywords: City councillor; Municipal Governance Act, RSA 2000, c M-26; mootness; costs
As the Court of Appeal says, “[t]his is an unusual case”. (See para. 1).
The Appellants seek to have their claim declared moot, except as to costs. (See para. 1; Rule 4.36(4) of the Alberta Rules of Court, Alta. Reg. 124/2010).
The Appellants allege that the Respondent, a former City of Calgary councillor, contravened the pecuniary interest provisions in Part 5 of the Municipal Governance Act, RSA 2000, c. M-26 (“MGA”). (See para. 3).
A three-day hearing is scheduled. However, prior to the hearing, a municipal election is held. The Respondent does not seek re-election and ceases to be a City councillor. (See para. 4).
The Appellants assert the Respondent does not seek re-election because they “exposed her misconduct”. They further claim that they “would certainly have been successful”. (See para. 8). However, rather than pursue declaratory relief against the Respondent (i.e., a declaration that the Respondent’s conduct constituted a breach justifying her removal from public office), the Appellants bring an application to have their claim declared moot. (See para. 4).
The Chambers Judge (Bourque J.) determines the claim is not moot for two reasons:
- s. 175(4) of the MGA “expressly provides otherwise” (i.e., expressly contemplates that an application to disqualify a City councillor can continue even if the subject resigns or does not run); and
- as a matter of common law, a live controversy continues to exist affecting the rights of the parties. (See paras. 5-7; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC); see also, Bellatrix Exploration Ltd v. BP Canada Energy Group ULC, 2021 ABCA 148 at para. 10).
The Appellants ask the Court of Appeal (Slatter, Pentelechuk, and Kirker JJ.A.) to “replace the decision with a finding of mootness…leaving the issue of costs for the trial court”. (See para. 2). The Court of Appeal finds the Chambers Judge made no error and declines to do so. (See para. 5).
Section 175(1) of the MGA says a councillor who is disqualified must “resign immediately”. Where a councillor does not do so, s. 175(2)(b) provides a mechanism for electors to apply to a Judge of the Court of King’s Bench for an order declaring them to be disqualified. (See para. 8).
Here, the councillor in question resigned. The Appellants then claimed costs “for having been successful at ridding this city of this councillor”. (See para. 8).
However, even if the councillor’s decision to not seek re-election was motivated by the Appellants’ claims, does it necessarily follow that the merits of those claims are proven? Indeed, is it correct at law to say the question (i.e., whether a councillor contravened the MGA) is “moot” simply because that councillor resigns?
The Court of Appeal answers these questions in the negative.
Importantly, the Respondent herein denies the allegations made against her. (See para. 8). For the Court of Appeal, the Appellants’ claims remain “tangible and concrete” because of their “substance and the declaratory relief that remains available”. (See para. 8; s. 175(2)(b) of the MGA). The Court also noted that the Appellants’ costs claim “implicates the merits of the pecuniary interest allegations made”. (See para. 8).
The Appellants’ mootness argument is based on the theory that s. 175 has no application in circumstances where a councillor chooses not to run after an application for an order to disqualify is filed. (See para. 6).
Upon reading the words of s. 175 “in their entire context and as working together to give effect to the purpose of the statutory scheme governing the disqualification of councillors”, the Court of Appeal agreed with the Chambers Judge in rejecting that argument. (See para. 7; R. v. McColman, 2023 SCC 8 at para. 35).
For the Court of Appeal, the purpose of the MGA is to “protect democratic governance” and s. 175(4) contemplates that an application continues regardless of whether the councillor ceases to hold office. (See para. 7). Will the Appellants herein seek declaratory relief against the former councillor? It would appear from the Court of Appeal’s decision regarding the mootness of the underlying claim, that (municipal) chickens ought not to be counted until after they’ve (juridically) hatched.
Counsel for the Appellants, Rocco Terrigno, Antonietta Terrigno, Maurizio Terrigno: Christopher Souster (Nimmons Law Office, Calgary)
Counsel for the Appellant, Mike Terrigno: John Mark Keyes (University of Ottawa, Ottawa)
Counsel for the Respondent: David Pick (Brownlee LLP, Calgary)