Bill 64 worth fighting even if it fails, professor says
It remains unclear whether Sask. cities will pursue legal action
An abrupt government reversal means Saskatchewan cities can now challenge controversial legislation expected to strip them of grants totalling $33 million — and one local expert thinks there are reasons to take action even if it is doomed to fail.
Because cities have no constitutional standing, the clause in Bill 64 prohibiting legal challenges or damage claims was probably “insurance,” and Government Relations Minister Donna Harpauer’s pledge to remove it was likely little more than a symbolic gesture, said Felix Hoehn, a professor at the University of Saskatchewan’s College of Law.
At the same time, municipalities may choose to launch a court battle for political or publicity reasons, even though it would have “no reasonable prospect of success,” Hoehn added.
“Certainly, municipalities may well say, ‘We had an agreement (and) we should have received some kind of notice or there should have been some kind of consultation,’ and they may want to drive that point home by taking the matter to court.”
It remains unclear, however, whether the Saskatchewan Urban Municipalities Association (SUMA), which has repeatedly condemned Bill 64, or its members will take that route.
“SUMA is in the process of consulting with legal counsel to reassess its options on this matter,” the association’s chief executive, Laurent Mougeot, said in an email Wednesday.
Reached by phone, SUMA president Gordon Barnhart said he did not know if one or more of the association’s members plan to pursue action independently, but noted that the success or failure of a challenge remains an “open question.”
The Saskatchewan Party government introduced Bill 64 last month as part of its 2017-18 budget. The legislation will amend existing acts to redirect grants paid annually to municipalities by SaskPower, SaskEnergy and TransGas into government coffers.
The move outraged most, if not all, of the province’s municipal governments, which, led by Saskatoon Mayor Charlie Clark, argued that the payments are based on long-standing contracts with the Crown corporations and their removal will leave a “void.”
Harpauer, meanwhile, said last month that the decision was taken to help trim around $600 million from the government’s $1.3 billion deficit and correct an “inequitable” system under which some municipalities received more grants in lieu of property taxes than others.
Despite her earlier insistence that the clause was included “because (cities) were going to” fight Bill 64, Harpauer on Tuesday said it was no longer necessary. When asked for an explanation, she told a government committee it was a “cautionary measure.”
NDP Opposition municipal relations critic Nicole Rancourt said the province should scrap Bill 64 and attempt to reach a more equitable agreement with municipalities — a solution Clark first proposed late last month.
Asked whether the 109 cashstrapped municipalities affected by Bill 64 should file suit to emphasize their concern, Rancourt said any legal challenge comes with significant costs and each city and town must decide if a fight is worthwhile.
After reiterating his view that municipalities have little to gain by challenging Bill 64 except a Pyrrhic victory, Hoehn said the legal questions surrounding Bill 64 have nothing to do with the government’s decision to claw back the grants. “I think the municipalities ultimately have no legal grounds, (but that) doesn’t mean what the province did was fair or reasonable or equitable in the eyes of the municipalities, or that they shouldn’t have approached it differently.”