Joseph Investment Corp. v. Cité d’Outremont, [1973] SCR 708

Supreme Court of Canada

Joseph Investment Corp. v. Cité d’Outremont, [1973] S.C.R. 708

Date: 1972-01-25

Joseph Investment Corp. (Plaintiff) Appellant;

and

Cité d’Outremont (Defendant) Respondent;

and

Services Sanitaires Sigma Inc. (Mise-en-cause).

1971: October 22; 1972: January 25.

Present: Fauteux C.J. and Abbott, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Municipality—By-law—Garbage removal—Discretionary power—Contract—Mandamus—Distinction between industrial and commercial establishments—Cities and Towns Act, R.S.Q. 1964, c. 193, s. 427(11).

The defendant gave a contract to the mise-en-cause for garbage removal, as provided in By-law 359. The contractor notified the plaintiff that it would remove only a maximum of 5 garbage containers from each of its properties, while the by-law fixes the quantity by premises and does not limit the total quantity to be removed but specifies a small charge for each additional container. The contractor discontinued garbage removal from all plaintiff’s properties. A writ of mandamus was issued ordering the defendant to remove or arrange for the removal of garbage from the commercial premises in the properties of the plaintiff. The Court of Appeal making a distinction between industrial and commercial establishments, varied the judgment of the Superior Court and allowed in part the action of the plaintiff ordering the removal of garbage only from the plaintiff’s premises classified as commercial by the Court of Appeal. Hence the appeal to this Court.

Held: The appeal should be allowed.

A ratepayer is entitled to mandamus to compel a municipality to provide him with a service made available to all by a by-law adopted at the discretion of the municipal council, even if the power to make the by-law is discretionary.

The by-law applies to the removal of all garbage, saving the exceptions specified therein, which exceptions do not at all refer to the garbage to be removed

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from plaintiff’s properties. There is no indication that the City did not intend to make full use of the powers granted in subs. 11 of s. 427 of the Cities and Towns Act and to provide for garbage removal throughout the municipality. The provisions quoted in support of the distinction between business and industry are for the sole purpose of defining certain words used in the by-law. Furthermore the word “commerce” in its modern meaning does not always exclude industry. Also, the contract provides that the mise-en-cause undertakes to remove the garbage in the City’s territory in accordance with the by-law.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing a judgment of the Superior Court. Appeal allowed.

B. Pollack, for the plaintiff, appellant.

Y. Denault, for the defendant, respondent.

The judgment of the Court was delivered by

PIGEON J.—Appellant is the owner of several properties in the City of Outrement, in which it has its offices as well as a jute importing business. The rest is occupied by some fifteen tenants, and in these premises are to be found warehouses, manufacturing enterprises, industrial workshops, import businesses, a car rental agency and two restaurants. Until 1965 the City had the waste and refuse removed by its employees, as provided in By-law 359, adopted on February 3, 1954.

At the end of 1964 the City decided to have the removal of garbage done by a contractor. On January 14, 1965, it signed a contract with Services Sanitaires Sigma Inc. (“Sigma”), by which this company undertook to remove the garbage as from the start of the year. On December 10, 1965, Sigma sent appellant a letter which reads as follows:

The following is further to our recent telephone conversation and to let you know that starting December 27th, our Company will pick-up the maximum garbage containers allowed by the Municipal By-Law of the City of Outrement, which specifies that per col-

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lection and per civic number, you are entitled to have a maximum of 5 garbage containers of 4.4 cubit feet.

Consequently, all our establishments in the City will be restricted, to the maximum.

To appreciate Sigma’s attitude we need only read the relevant provision in the By-law:

Article 15. When the refuse of any dwelling or of any commercial premises, to be collected at each round, is contained in more than five receptacles of a maximum capacity of 4.4 cubic feet or of a maximum weight of one hundred pounds each, a charge of twenty-five cents shall be made to the occupant of said premises for the removal of each additional receptacle.

It can be seen that the By-law determines the quantity, not by civic number but by premises. Further, it does not limit the quantity of refuse to be removed, but specifies a small charge for each additional receptacle. Needless to say, appellant protested to the City, pointing out the foregoing in a letter dated December 15, 1965.

At first the municipality ordered Sigma to remove the garbage. Later, for some undisclosed reason, it sided with Sigma, and towards the end of March 1966 the contractor discontinued garbage removal from any of appellant’s properties altogether. On April 5, appellant caused to be served a notice of motion for a writ of mandamus. The City then filed a complaint in the Municipal Court charging appellant with allowing accumulation of the garbage which Sigma was refusing to remove. The record does not show what came out of this complaint, but in the Superior Court a writ was issued and the City was subsequently ordered, by judgment dated March 6, 1967, to remove or arrange for the removal of garbage from the commercial premises in the properties of appellant (the plaintiff at that time). Sigma was summoned as mise-en-cause in this action, and the trial judge ordered regarding it that it [TRANSLATION] “shall abide by the judgment now delivered”.

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The City and Sigma, which were represented by the same counsel and had filed a joint defence in the Superior Court, also made a joint inscription in appeal from the judgment of the Superior Court. The Court of Appeal gave the following decision:

[TRANSLATION] For the reasons stated in the notes delivered herewith:

ALLOWS the appeal with costs, REVERSES the judgment of the Superior Court, ALLOWS in part the action of Joseph Investment Corporation, with costs, and ORDERS the City of Outremont, in accordance with the provisions of By-law 359 of the City, to remove or arrange for the removal of garbage from the building at 435 Beaubien Street West, the restaurant in the basement of 6250 Hutchison Street, and the restaurant and car rental agency on the first and fourth floors of 6545 Durocher Avenue. (Rinfret J., dissenting, would have dismissed the application for mandamus.)

The reasons show that the Court of Appeal made a distinction between industrial and commercial establishments. It held that the by-law provided for garbage removal from commercial, not from industrial, establishments. The premises listed in its decision are those classified by it as commercial.

Appellant appealed to this Court from that judgment, but the appeal was brought against the City only. The respondent, however, did not invoke res judicata. In this case this objection could be overcome, as it was in La Malbaie v. Boulianne[1]. Counsel for the City, who, as we have seen, was acting for Sigma also, therefore gave a written consent for judgment to be rendered in this Court as if Sigma were a party, on condition that the latter be not condemned to pay any costs, and counsel for the appellant has agreed to this.

The only question that has really to be examined in this case is the scope of By-law 359. A

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taxpayer is clearly entitled to mandamus to compel a municipality to provide him with a service made available to all by a by-law (Minister of Justice v. City of Lèvis[2].) The adoption of such a by-law is left to the discretion of the municipal Council but an obligation then arises, as the Court of Appeal unanimously recognized. It must even be added that, as a rule, a municipality may not use a power to make by-laws in an arbitrary manner (Sun Oil v. Verdun[3].)

It is also clear that the majority in the Court of Appeal did not err in refusing to accept some alleged violations of the provisions of By-law 359 respecting the manner in which garbage was to be set out for removal, as a ground of defence against appellant’s action. This was not the reason for which the service was refused, nor could it justify the refusal.

The sole reason for which the Court of Appeal held that the By-law referred only to appellant’s commercial establishments was stated by Rinfret J. as follows:

[TRANSLATION] By-law 359, adopted on February 3, 1943, as amended by By-law 402, and filed as Exhibit P-1, states:

Article 1.—The word “Building” in this By-law shall mean any building, structure or construction whatsoever.

Article 2.—The word “dwelling” shall mean any building or part of a building wherein resides one family or one person only.

Article 3.—The words “commercial premises” mean any store, shop, office building or any place wherein business of a commercial nature is carried on or transacted.

The City, the defendant-appellant, has thus not made full use of the powers granted it in Sec. 427: it has not provided for removal of garbage “throughout the municipality,” and it has specified the “places in the municipality” where there would be garbage removal.

Those are “dwellings” and “commercial premises”.

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Unless they fall within one or other of these expressions, the establishments of the tenants of plaintiff-respondent are not covered by the By-law.

…

The trial judge held that car rentals, showrooms, ordering, and converting raw materials into finished products “are commercial”, in that they “make it possible to realize a profit by the sale of converted materials”.

Restaurants, showrooms and car rentals qualify under this part of the definition of “commercial premises”. They are not, properly speaking, stores or shops.

I agree with the trial judge on the first three items in his list, but I cannot agree that the conversion of raw materials to finished products constitutes a business of a commercial nature, in the modern meaning of the word.

A distinction must be made between business and industry.

Respectfully, I find, on the contrary, that in the context of the By-law under consideration this distinction is unjustified. Firstly, there is nothing to suggest that the municipality did not want to make full use of the power undoubtedly conferred on it by subs. 11 of s. 427 of the Cities and Towns Act, to provide for removal of garbage “throughout the municipality or in such places in the municipality as the council may designate…” The provisions cited in support of this distinction are not intended to specify the places where there is to be garbage removal; they are three articles the sole purpose of which is to define certain words used in the By-law. It is true that there is no provision expressly stating that the municipality shall remove the garbage in all its territory, but this necessarily follows. Further, this is how it has been understood for over twenty years, and this is also what is formally recognized in the contract of January 1965, which provides that the contractor undertakes to remove the garbage in the

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City’s territory in accordance with By-law 359. In that By-law, art. 13 and 14 read as follows:

Article 13.—The days and the hours for the removal of garbage and ashes shall be fixed by the said City Engineer and Manager by written notice or circular and every person shall, on such days and hours, place all receptacles, bundles and other matters herein referred to in the same manner provided by the present By-law.

Article 14.—The scavengers of the City shall empty the receptacles and replace the same where found, but, in no case shall the employees of the City be permitted to enter any building for the purpose of removing receptacles.

Attention must be drawn in the second of these articles to the word “building” which, according to art. 1, means “any building whatsoever”. Then, special note must be taken, as the trial judge has done, of the following provision dealing with industrial establishments:

Article 21.—The scoria and ashes from steam engines, blacksmith’s shops, furnaces of industrial establishments shall forthwith be removed by the owners of such establishments.

If the City meant the By-law to compel owners of industrial establishments to remove all their waste, why would the City have created this obligation for scoria and ashes only? In my view this provision, like that of art. 17 respecting the removal of all debris of building materials, etc. by the contractor or owner, shows that in By-law 359 the City intended to deal with all waste removal in the municipality. The cases in which the removal would have to be done by the building owner were specified because, as a general rule, it would be done by employees of the municipality. In this context, the definition of commercial premises cannot be read as giving this word a meaning which excludes any industrial activity.

Furthermore, it must not be assumed that the word “commerce” in its modern meaning always excludes industry. In the Robert dictionary, the first definition is:

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[TRANSLATION] In its widest sense. Any operation the purpose of which is the sale of goods or securities, or the purchase of the same for resale, whether or not they undergo a conversion process.

Only further down does the author state:

[TRANSLATION] In a narrower sense, in contrast with AGRICULTURE and INDUSTRY.

Immediately after this, however, turning to the legal aspect, he quotes art. 632 of the Code de commerce, which refers expressly to [TRANSLATION] “Any manufacturing business”. Is there need to add that, in the Quebec Civil Code (v.g. arts. 1233 and 1235), it is quite clear that the word “commercial” is not used otherwise.

I therefore conclude that the trial judge correctly held that By-law 359 of the City of Outremont applies to the removal of all garbage, saving the exceptions specified therein, which exceptions do not at all refer to the garbage to be removed from appellant’s properties.

For these reasons, I would allow the appeal against the respondent, the City of Outremont, set aside the judgment of the Court of Appeal and restore that of the Superior Court concerning it, the whole with costs in all Courts against respondent.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Pollack & Pollack, Montreal.

Solicitors for the defendant, respondent and the mise-en-cause: Lacroix, Viau, Bélanger, Hébert, Mailloux & Beauregard, Montreal.