Supreme Court of Canada
Fraternité des Policiers de la Communauté urbaine de Montréal Inc. v. City of Montreal et al., [1980] 1 S.C.R. 740
Date: 1980-04-22
Fraternité des Policiers de la Communauté urbaine de Montréal Inc. formerly known as the Fraternité des Policiers de Montréal Inc. (Defendant) Appellant;
and
City of Montreal (Plaintiff) and Urban Community of Montreal Respondents;
and
Camille Beaulieu Mis en cause.
1980: January 31, February 1; 1980: April 22.
Present: Pigeon, Dickson, Beetz, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Labour law—Arbitral award—Application of Health Insurance Act and Supplemental Pension Plans Act to collective agreement—Invalidity of syndicate by-law—Evocation—Res judicata—Health Insurance Act, S.Q. 1970, c. 37, ss. 12, 13—Supplemental Pension Plans Act, S.Q. 1965, c. 25, s. 8—Professional Syndicates Act, R.S.Q. 1964, c. 146, as am. by S.Q. 1965, c. 51, ss. 9, 13a—Civil Code, art. 1241—Code of Civil Procedure, arts. 847, 850.
Under the collective agreement existing in 1970 between appellant (the “Fraternité”) and respondent (the “City”), the employer contributed to the health insurance of its employees. This contribution was paid to the Fraternité health insurance fund in accordance with the Professional Syndicates Act. Before the Health Insurance Act came into effect on November 1, 1970, the Fraternité adopted a by-law to create a new health insurance fund for services other than insured services within the meaning of the new Act. The City, which was required to pay a larger contribution under the government plan than it was paying under the collective agreement, refused to make any payment to this new plan. The Fraternité submitted a grievance, in which it claimed from the City the amount of the contributions stipulated in the collective agreement for November 1970. The arbitrator allowed this grievance, and the City obtained a writ of evocation from a judge of the Superior Court, but another judge of the Superior Court dismissed the application on the merits. The Court of Appeal reversed the latter judgment, revised the arbitral award and dismissed the grievance of the Fraternité; hence the appeal to this Court.
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Held: The appeal should be dismissed.
The Health Insurance Act in general terminated every contract of insurance covering what became an “insured service” as of November 1, 1970. In creating a government plan, the government voided every contract the purpose of which was to provide what the government had undertaken to provide. Furthermore, s. 8 of the Supplemental Pension Plans Act prohibits the coming into force of a plan “unless it is first registered by the Board and certified to be in compliance with the standards”, approval which in the case at bar the Board did not give until November 20. By reason of this prohibitive enactment of public order, any provision seeking to give effect to the by-law of the new fund of the Fraternité as of October 15 was void. Because these are the provisions which would have the effect of requiring the City to pay the premium for November, this is a nullity which vitiates the award itself. The arbitrator does not appear to have considered this point. With regard to the judgment authorizing the writ of summons to be issued, this is an interlocutory judgment which did not constitute res judicata. The right conferred by the new Code of Civil Procedure (1965) to appeal from the decision authorizing or refusing to issue the writ does not have the effect of altering the nature of this judgment and making it final.
Syndicat des professeurs du CEGEP du Vieux-Montréal v. CEGEP du Vieux Montréal, [1977] 2 S.C.R. 568; Davis v. The Royal Trust Co., [1932] S.C.R. 203; Metras v. Trudeau (1885), M.L.R. 1 Q.B. 347; Levine v. Serling (1911), 23 Que. K.B. 289; Canadian Car & Foundry v. Bird (1922), 64 S.C.R. 257; Dominion Textile Co. v. Skaife, [1926] S.C.R. 310; Ville de St-Jean v. Molleur (1908), 40 S.C.R. 139; Mutual Life Ins. Co. of New York v. Dame Jeannotte-Lamarche (1935), 59 Que. K.B. 510; Parkovnick v. Ducharme, [1947] Que. K.B. 524; Couture v. Maurice Pollack Ltée, [1946] Que. K.B. 243; Dame Dion v. Orr, [1961] Que. Q.B. 320; Bergevin v. Dame Gauthier, [1961] Que. Q.B. 440; François Nolin Ltée v. Quebec Labour Relations Board, [1968] S.C.R. 168; Commission de la fonction publique v. Desbiens, [1970] C.A. 727; Collège des médecins v. Léonard, [1974] C.A. 302; International Union of Operating Engineers v. Carrières Montréal-Est (1965) Ltée, [1975] C.A. 454; Dubois v. Commission de Police du Québec et al., [1977] C.A. 28, referred to; Comité d’appel du bureau provincial de médecine v. Chèvrefïls, [1974] C.A. 123, criticized.
APPEAL from a decision of the Court of Appeal of Quebec which reversed a judgment of
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the Superior Court and revised an arbitral award. Appeal dismissed.
Mario Létourneau and Normand Beaulieu, for the appellant.
Neuville Lacroix, for the respondent the City of Montreal.
Michel Côté, Q.C., for the respondent the Urban Community of Montreal.
English version of the judgment of the Court delivered by
PIGEON J.—This appeal is from a decision of the Court of Appeal, [1979] C.A. 51, which reversed the judgment of the Superior Court, revised the award made by the mis en cause, Camille Beaulieu, and dismissed the grievance submitted by the Fraternité des Policiers de Montréal Inc. now known as the Fraternité des Policiers de la Communauté urbaine de Montréal Inc. (the “Fraternité”). The collective agreement under which the grievance was submitted to arbitration was made with the City of Montreal, but under s. 29 of the Statutes of Quebec 1971, c. 93, the Urban Community of Montreal was substituted for the latter, and it is on this account that it is a respondent in the appeal at bar, under an express provision of the Court granting leave.
As Mayrand J.A. observed in the Court of Appeal, the origins of this case lie in the application of the Health Insurance Act, S.Q. 1970, c. 37, to the clauses of a collective agreement providing for a contribution by the employer to health insurance for its employees. The many collective agreements governing various groups of City employees had for a long time provided for a contribution to health insurance by the employer. The collective agreement between the City and the Fraternité for the period from December 1, 1969 to December 31, 1970 contained the following stipulation:
[TRANSLATION] ARTICLE XXXV—HEALTH INSURANCE
35.00 The City assumes the cost of the health insurance premiums of policemen up to an amount of five dollars
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and fifty cents ($5.50) a month for married policemen and one dollar and sixty-five cents ($1.65) a month for unmarried policemen. The account shall be rendered monthly by the treasurer of the Fraternité and the cheque shall be made out to the illness assistance fund of the Fraternité. The City may cause the said account to be audited.
The Health Insurance Act received royal assent on July 17, 1970, but by virtue of a subsequent Act (S.Q. 1970, c. 38) assented to on October 16, 1970, the provisions establishing the government health insurance plan became effective on November 1. These provisions include, inter alia, the following:
12. No person shall make or renew a contract of insurance or make a payment under a contract of insurance under which an insured service is furnished or under which all or part of the cost of such a service is paid to a resident of the Province of Québec or to another person on his behalf.
If such a contract also covers other services and property it shall remain in force as regards such other services and property and the consideration provided with respect to such contract must be adjusted accordingly, unless the beneficiary of such services and of such property agrees to receive equivalent benefits in exchange.
If the consideration was paid in advance, the amount of the reimbursement or adjustment, as the case may be, must be remitted within three months unless the beneficiary agrees, during such period, to receive equivalent benefits.
…
13. (1) When an employer has undertaken to pay a sum of money for the benefit of his employees for the insurance of the cost of services which become insured services, he must, if the amount which he pays in respect of an employee under sections 67 to 72 is less than the amount which he would otherwise have paid in respect of such employee, remit the difference to him as the instalments become due until such undertaking has terminated, and indicate to his employees, not later than three months after the date fixed under section 90, the amount which is so owing to each of them and the manner in which it was established; when the employees are represented by a certified association within the meaning of the Labour Code, the employer must give such indications to such association.
(2) The employer shall be relieved of the obligation to remit to an employee the amount owing to him under
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subsection 1 if such employee accepts equivalent benefits in exchange; when employees are represented by a certified association within the meaning of the Labour Code, such association may accept on behalf of the employees the granting to them by the employer of equivalent benefits.
(3) Payment of the amounts owing by an employer to his employees under subsections 1 and 2 cannot be claimed by them before the expiry of the three months contemplated in subsection 1.
(4) If the undertaking by the employer exists under a collective agreement within the meaning of the Labour Code, any difference arising out of the application of this section shall be a grievance within the meaning of the Labour Code, as if it were a case of the interpretation or application of the collective agreement binding the employer and such association; in other cases, recourse may be had to arbitration as if an arbitration clause had been agreed upon between the parties.
(5) For the purposes of this section, the word “employee” includes retired persons and this section shall not apply to employees governed by a collective agreement within the meaning of the Labour Code when such agreement expressly provides for the manner of disposing of insurance of the cost of services which become insured services.
Under the plan adopted by the Fraternité, the benefits conferred on policemen by its assistance fund related essentially to “insured services” within the meaning of the Health Insurance Act. On the other hand, the contribution which the City was obliged by that Act to pay as employer was greater than what it had to pay under the collective agreement. Accordingly, if matters had remained there, it is clear that, first, the Fraternité assistance fund would have been released of its obligations to the policemen, the latter being assumed by the government plan, and second, the City would have been relieved of any contribution under the collective agreement since it had become required to pay a greater amount under the government plan.
In these circumstances, the Fraternité adopted three resolutions as follows:
(1) to abolish the illness assistance fund as of October 15, 1970;
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(2) to itself allow identical benefits to its members up to November 1;
(3) to create a new health insurance fund as of October 15 for services other than “insured services” within the meaning of the Health Insurance Act.
These three resolutions were submitted to a special general meeting of the members of the Fraternité on October 29, 1970 and were approved. The by-law governing the new health insurance fund [TRANSLATION] “created on October 15, 1970” was thus ratified.
The Fraternité is a professional syndicate governed by the Professional Syndicates Act, R.S.Q. 1964, c. 146. The power to create special funds is conferred on it by para. 1 of s. 9 of that Act. As amended in 1965 (S.Q. 1965, c. 51, s. 3), this paragraph reads as follows:
(1) Establish and administer special indemnity funds for the heirs or beneficiaries of deceased members, or for the members on the decease of their consorts and special funds for superannuation, assistance in case of illness, unemployment, or other funds of a similar nature, which shall be governed exclusively by the by-laws approved by the Quebec Pension Board.
In addition to amending the foregoing paragraph, the 1965 Act added the following:
13a. The Supplemental Pension Plans Act shall apply, notwithstanding section 2 thereof, to special funds established by the by-laws contemplated in paragraph 1 of section 9 and such, by-laws shall constitute plans within the meaning of the said act.
…
Finally, the Supplemental Pension Plans Act (S.Q. 1965, c. 25) provides inter alia:
8. No supplemental plan shall come into force in the Province unless it is first registered by the Board and certified to be in compliance with the standards.
To comply with these enactments, the Fraternité on November 4 made an application for approval of the by-law for the new fund. However, the Pension Board did not give its approval until November 20.
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The City refused to make any contribution to health insurance as of November 1, 1970, the date on which the government health insurance plan came into effect. The City found that it was required to pay into this plan a larger contribution than it was paying under the collective agreements and refused to make any payment to the Fraternité. On January 22, 1971 the latter submitted a grievance in writing. It claimed the amount stipulated in clause 35 of the collective agreement for November 1970. This is the grievance which was submitted to arbitration.
The decision of the arbitrator is dated January 26, 1972. He does not appear to have taken into account the requirement of approval by the Pension Board. He stated:
[TRANSLATION] … On October 15, 1970, in a special meeting, the members of this Fraternité adopted new by-laws making changes to benefits. They abolished the old fund and created a new one. This was all ratified on October 29, 1970 at a general meeting of the members and submitted for approval by the Superintendent of Insurance, who on November 9, 1970, in a letter to the Fraternité, stated:
I am pleased to inform you on behalf of the Superintendent of Insurance that we agree to the filing of the new by-laws of your Fraternité adopted on October 15, 1970 and ratified at a special meeting of the members held on the 29th of that month. I shall advise the Pension Board to this effect.
(signed) Jean-Yves Hamel,
Legal Counsel.
According to the documents filed, from October 15, 1970 onwards we find that the benefits conferred under this new fund are completely different from those which the legislator would impose under the Health Insurance Act, which came into effect on November 1, 1970.
After that, the arbitrator considered whether the agreement allowed the Fraternité to alter at will the benefits for which the City was required to pay a fixed contribution. He concluded that it had this right, stating:
[TRANSLATION] From Clause 35 of the collective agreement it must be deduced that the employer undertook only to pay a sum of money to its policemen, when it is said that: “The City assumes the cost of the health insurance premiums of policemen up to…” The policemen were accordingly free, through their Fraternité, to
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administer this money paid by the employer, to select the benefits they wanted to have, and to amend them as they saw fit, except that these amounts had to be used for health insurance purposes. In no case is there any mention of their being required, first, to limit themselves to any form of basic coverage.
The arbitrator accordingly concluded that the grievance should be allowed, observing:
[TRANSLATION] Why, even on the very eve of the coming into force of the government’s plan, would not the Fraternité have the right to exercise prerogatives which it had always been recognized as having, and which until then it had freely exercised?
There is nothing in the Health Insurance Act prohibiting such action. Section 13 of that Act has meaning and effect only in respect of the services which were privately insured on November 1, 1970. It is a statute of public order. Neither the employer nor the employees may contravene it in the case of services which become insured. Section 13 of the Act provides the parties with the necessary machinery for resolving a situation in which there is duplication. On November 1, 1970 there was no such duplication of services. Accordingly, this machinery may not be used. Since neither the wording of the agreement nor established practice prohibited or limited in any way the right of the Fraternité to amend its by-laws, even if such amendment was made at the last minute, it must be concluded that this action was lawful.
Referring to the decision of Mr. Jean-Réal Cardin dated May 13, 1970 [sic], we find that the facts were different. In that case the Union of Public Employees, local 301, had negotiated a new insurance policy dated March 2, 1971 but retroactive to November 1, 1970, and that policy was subscribed for a whole range of benefits not covered by the Quebec Health Insurance Act. It is quite clear that the Union could not, by a subsequent action, seek to avoid the application of this Act, in particular s. 13. However, it should be noted that, in the case of the Fraternité des Policiers, the amendments made to the benefits were made before the Act came into effect, and on November 1, 1970, when this Act came into effect, it cannot be said that there was any duality or duplication of the same services.
At no point did the arbitrator consider the provisions of s. 13a of the Professional Syndicates Act and those of the Supplemental Pension Plans Act.
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He recognized the principle that the application of the Health Insurance Act could not be prevented by a retroactive amendment of benefits insured in consideration of a premiun paid under a collective agreement, but he held that the change was made by the Fraternité in good time before November 1. He did not stop to consider whether by the effect of that Act, the whole matter was not brought forward to the date of approval by the Pension Board, that is November 20. This is the reason for which the Court of Appeal reversed the decision. Mayrand J.A. said (at p. 55):
[TRANSLATION] The right to establish and administer illness assistance funds is granted to the Fraternité by virtue of the Professional Syndicates Act. Section 9 of that Act (as amended by S.Q. 1965, c. 51, s. 3) provides that such funds
…shall be governed exclusively by the by-laws approved by the Quebec Pension Board.
The Fraternité did not seek approval of the new by-laws until November 4, 1970, and approval was given on November 20 (Exhibit U-2A-b, J.R., p. 109).
…
The validity of the by-laws adopted by the Fraternité is subject to approval by the Pension Board, and the by-laws accordingly cannot have effects prior to such approval without infringing the rule that by-laws are not retroactive. Approval by a higher authority enables the latter to decide on the advisability of the measure submitted at the time when such authority makes its decision. This administrative caution is destroyed if there is an attempt to give retroactive effect to the approval.
1 accordingly conclude that the changes which the Fraternité attempted to make before November 1, 1970 could only be effective after that time, when the competent authority gave its approval of the new by-laws adopted earlier. As a consequence, the conditions set forth in s. 13(1) of the Health Insurance Act were met; the City undertook to pay and in fact paid a contribution for the benefit of its policemen for the insurance of the cost of services which became insured services under the public health insurance plan.
As the arbitrator was in error as to the existence of these facts, on which his jurisdiction depended, his refusal to exercise the jurisdiction conferred on him by s. 13(4) of the Act gave rise to evocation.
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With respect to s. 13(1) of the Health Insurance Act, I must say that it does not seem to me to have quite the scope which the arbitrator and the Court of Appeal appear to have given it. In fact, if the wording is closely scrutinized, it will be seen that the obligation contemplated applies only in the case where the employer pays the government plan an amount which is “less” than what “he would otherwise have paid”. In the case at bar, this does not occur: the employer is not paying the government plan less, it is paying more. However, this does not mean that the Health Insurance Act is not to be taken into account, for even if s. 13 does not cover this particular case, the fact remains that this Act did in general terminate every contract of insurance covering what became an “insured service” as of November 1, 1970. This is what s. 12 provides. In creating a government plan, the government voided every contract the purpose of which was to provide what the government had undertaken to provide. All contracts concluded for this purpose accordingly became void as of November 1, and all obligations under such contracts therefore became obligations without a consideration.
No one appears to have suggested or contended that, because technically, in the case of the Fraternité, a contribution to a benefit fund was stipulated rather than a contract of insurance, the provisions of ss. 12 and 13 of the Health Insurance Act could not be relied on. The situation here involves the application of fundamental principles of the law of contract, and I am satisfied that no one erred in concluding that the obligation to make a contribution to an illness benefit fund was in all respects to be assimilated to the obligation to pay a health insurance premium, in defining the consequences of the Quebec government plan which became effective on November 1, 1970. It accordingly appears to me that the Court of Appeal did not err in holding that if, for November 1970, the City’s obligation was to pay a contribution for “insured services”, this obligation was extinguished as a result of the Act. To hold otherwise, it would be necessary to conclude that the obligation of the City at that time was to pay a contribution for the benefits contemplated in the new assistance fund of the Fraternité. To arrive at such a conclu-
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sion, it must be found that: (1) this was the obligation stipulated in the contract; (2) this new plan had come into effect.
The Court of Appeal did not feel it necessary to rule on the first point, which is exclusively a matter of interpretation of the contract. In this regard, I shall merely point out that the interpretation of the agreement was within the jurisdiction of the arbitrator. In order to interfere with his decision, the Court must not simply be of the opinion that another interpretation would be preferable. As I observed in Syndicat des professeurs du CEGEP du Vieux-Montréal, at p. 573, it must be found that the arbitrator has given “the text a construction it could not bear”. This is what counsel for the Urban Community maintained, arguing that the obligation referred to the contribution to the existing fund, not to a new fund of a different nature.
On the second point, it should be noted that this involves a prohibitive provision of public order, and that s. 8 of the Supplemental Pension Plans Act prohibits the coming into force of a plan “unless it is first registered by the Board and certified to be in compliance with the standards”. How, in the face of such an express provision, can there be any conclusion reached other than that arrived at by the Court of Appeal, namely, that the new benefit fund could not legally operate before November 20? The question may at times arise whether the official approval of some documents makes them valid from the day on which they were executed, but the provision in question here appears designed to exclude this possibility. It is true that the by-law which the Pension Board approved sets the commencement of the new “health insurance” plan at October 15, 1970, but I cannot see how the approval by the Board could be effective as against a prohibitive statute. Under art. 14 C.C., “Prohibitive laws import nullity, although such nullity be not therein expressed”.
Can it be said that as the by-law was adopted to have effect as of October 15, the date on which the
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executive of the Fraternité adopted it, it had an apparent validity and it was not for the arbitrator to declare it to be void, as this was exclusively a matter for the courts? I do not think so. I think the same rule should be followed as in dealing with a decision of an inferior court, as for instance a municipal court. Although it cannot pass up on the validity of a municipal by-law, this does not mean that its decision based on an invalid by-law cannot be quashed for the defect resulting in the nullity of the by-law on which it is based. Thus, once the Court has to hold that, by virtue of a prohibitive enactment of public order, the by-law for the new Fraternité fund could not come into force before approval by the Pension Board, it follows that any provision seeking to give it effect as of October 15 was void. Because these are the provisions which would have the effect of requiring the City to pay the premium for November, I think it is clear that this is a nullity which vitiates the award itself. The arbitrator does not appear to have considered this point, and the same is true of the trial judge, who like him, merely considered whether under clause 35 of the agreement the City’s obligation applied to the premium payable to the new fund.
In its factum the City relied on the judgment authorizing the writ of summons to be issued, as having the force of res judicata. This judgment was rendered in accordance with art. 847 C.C.P., the second paragraph of which provides:
The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought.
Under art. 850 this decision was subject to appeal. An appeal was entered by the Fraternité, but it was discontinued. The case was then heard before a judge other than the one who authorized the writ to be issued. In this Court it was argued that so far as the second judge was concerned, and therefore also the Court of Appeal and this Court, what the first judge said as to the law constituted res judicata. It will immediately be seen how
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fraught with consequences this argument would be if it were valid. Since there is some support for it in recent cases and comments, I feel it is proper for me to make some observations on this point.
The rule on res judicata is stated in art. 1241 C.C.;
Art. 1241. The authority of a final judgment (res judicata) is a presumption juris et de jure; it applies only to that which has been the object of the judgment, and when the demand is founded on the same cause, is between the same parties acting in the same qualities, and is for the same thing as in the action adjudged upon.
In Davis v. The Royal Trust Co. Rinfret J. reviewed the cases on the authority of interlocutory judgments under the law of Quebec. The appeal was from a decision of the Court of Appeal which had affirmed the dismissal of an exception to the form alleging plaintiffs’ lack of capacity. The appeal was quashed on the ground that the judgment a quo was not “final” within the meaning of the Supreme Court Act, because it did not “determine” a “substantive right”. Clearly, in order to so hold this Court had to come to the conclusion that the interlocutory judgment, even when affirmed by the Court of Appeal, did not constitute res judicata. Rinfret J. noted first (at p. 207), that in 1885, in Metras v. Trudeau, the Court of Appeal had held:
[TRANSLATION] That the appeal from the judgment of the Superior Court again puts in question all the interlocutory judgments rendered in the case, and that the failure by a defendant to protest against or appeal from an interlocutory judgment dismissing his exception to the form does not prevent him from discussing this judgment on the appeal from the final judgment, as the interlocutory is not res judicata on the questions raised by his exception to the form.
He then emphasized, citing several cases, that this rule had been invariably followed. Among the cases cited was Levine v. Serling, in which one reads (at p. 293):
[TRANSLATION] Whereas the thirty-day period fixed by art. 1211 C.C.P. for an appeal from interlocutory judgments is designed simply to allow a speedy appeal, before the final judgment, from interlocutory judgments
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prejudging the merits, with the necessary suspension of the proceedings under way, but the failure to appeal from such judgments within this short time period does not have the effect of depriving the losing party of his right to appeal later, at the same time as from the final judgment.
After referring to Canadian Car & Foundry v. Bird, in which this Court had similarly held that the judgment of the Court of Appeal was not “final”, he stated (at p. 208):
It may be, now that the Court of King’s Bench has pronounced upon the point concerning the absence of quality of the respondents, that the Superior Court and the Court of King’s Bench itself will be inclined to follow the ruling already made, when the question comes again for decision on the merits of the case. This will not be, however, because of lack of power to decide otherwise. It will be rather the effect of the application to the particular instance of the maxim Stare decisis. But we entertain no doubt that if the appellant ever comes before a higher court upon the merits, she will be at liberty to take up the point again and have it revised, should the judgment of the Court of King’s Bench be erroneous, (1906), 37 S.C.R. 535, at p. 539.
The learned judge noted, however, that an exception had to be made in the case of a judgment maintaining a demurrer, in accordance with the decision in Dominion Textile Company v. Skaife. In this regard he said (at p. 209), before citing another case to the same effect (Ville de St-Jean v. Molleur):
Judgments maintaining demurrers, in whole or in part, are not analogous. If the demurrer be to the whole action and if it be maintained, the action is dismissed and cadit questio. In all other cases, the allegations struck out upon demurrer disappear from the record and no evidence whatever can be adduced in respect thereof at the trial. The trial judge is therefore powerless, and any attempt by him to remedy the situation by the final judgment would be ineffective and inoperative. The result is that judgments on demurrers striking out part of the allegations stand in a class by themselves and must be treated as final judgments.
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In Mutual Life Insurance Company of New York v. Dame Jeannotte-Lamarche, as in Parkovnick v. Ducharme, the Court of Appeal followed the earlier cases and reversed the judgments on the merits by revising interlocutory decisions.
In Couture v. Maurice Pollack Ltée, the exception with respect to judgments on a demurrer striking out part of the allegations of the action was applied.
In 1961, despite a strong dissent based on the earlier cases, the Court of Appeal applied this exception to interlocutory decisions sustaining an objection to evidence: Dame Dion v. Orr. In doing so, the Court relied on the above quoted words of Rinfret J. in Davis v. The Royal Trust Co., respecting allegations struck out on a demurrer, although he had taken care to state that those judgments “stand in a class by themselves”. A decision to the same effect was made in Bergevin v. Dame Gauthier, a case reported in summary form only.
The new Code of Civil Procedure was promulgated in 1965. As was mentioned in François Nolin Ltée v. Quebec Labour Relations Board, art. 847 [TRANSLATION] “gave legislative sanction to the rule laid down in Ville de Montréal v. Benjamin News, [1965] Que. Q.B. 376, that before authorizing a writ of prohibition to be issued the judge must pronounce on the law”. However, art. 850 breaks new ground by allowing a right of appeal from the “judgment granting … authorization to exercise the recourse” as from the judgment refusing it.
It was not long before the question was raised whether this change might have altered the nature of the judgment authorizing the writ to be issued. In Commission de la fonction publique v. Desbiens, the Court of Appeal followed the earlier precedents. The report includes only a sum-
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mary of the decision, but the following passage at p. 728 is taken verbatim from the reasons of Turgeon J.A., who wrote the unanimous opinion of the Court:
[TRANSLATION] Respondent’s argument based on the authority of res judicata must be disposed of immediately. With all due respect for the contrary opinion, the judge was not bound on the merits by the decision authorizing the writ to be issued. The latter was handed down before the case began and constituted only a preparatory judgment. Furthermore, for there to be res judicata, there must be identity of parties acting in the same capacities, identity of case and identity of object. But, the object of the first judgment was to authorize the writ to be issued: it did not decide the case. Moreover, on the merits, the judge had primarily to decide whether the Board had exceeded its jurisdiction. Accordingly, there was no identity of object.
The Court of Appeal expressed different views in Comité d’appel du bureau provincial de médecine v. Chèvrefils. The Superior Court judgment which had maintained the writ of evocation was upheld in that case, so that it was not necessary to rule on the effect of the judgment which had authorized the writ to be issued. Before citing most of the above quoted extract from the judgment in Desbiens, Kaufman J.A. cited what had been said in this Court in François Nolin Ltée v. Quebec Labour Relations Board, supra, at p. 170, that art. 847 C.C.P. had given [TRANSLATION] “legislative sanction to the rule … that before authorizing a writ of prohibition to be issued the judge must pronounce on the law”; he then stated (at p. 125):
This said, I agree with the trial judge that Paré, J., who had issued the writ, had, in fact, laid down the law between the parties, and no appeal having been taken, his findings bind the parties, not on the facts, of course, but on the law.
Montgomery J.A., for his part, added (at p. 127):
Regarding the extent to which the judgment authorizing the issue of the writ can be regarded as chose jugée, I agree with my colleague Mr. Justice Kaufman that, if art. 850 C.P. gives a right of appeal against such a judgment, it necessarily follows that the judgment may
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constitute chose jugée on the questions actually decided
…
Some months later, in Collège des médecins v. Léonard, a case in which this was more important because the Court of Appeal was reversing the judgment of the Superior Court which had maintained the evocation, Lajoie J.A. said for the Court (at p. 308):
[TRANSLATION] It may not be inappropriate to mention that if, on an application for a writ of evocation, the judge hearing the motion must rule on the law, assuming the facts alleged to be true, his decision is not binding on the judge who has to decide on the merits of the case after the writ is issued, and is of no greater authority than the reasons supporting it.
In International Union of Operating Engineers v. Carrières Montréal-Est (1965) Ltée, the principle stated in Chèvrefils was reaffirmed. The Court refused to apply it in Dubois v. Commission de Police du Québec et al., Kaufman J.A. saying (at p. 35):
As my colleague points out, the judgment in Comité d’appel du Bureau provincial de médecine v. Chèvrefils has no application in this case. In the first place, the delays for appeal had not yet expired when the case was heard on the merits. Secondly, it is clear that the judge who issued the writ contented himself to say that a prima facie case had been made out. He did not rule on the question of law, and there cannot be chose jugée.
With respect, I must say that Î cannot really see how the nature of the judgment authorizing the writ of evocation to be issued could thus depend on the way in which the judge rendering it expresses himself. I am also unable to see how what was said in François Nolin Ltée can justify the conclusion drawn from those words in Chèvrefils, or how the right of appeal from an interlocutory judgment could make it final, contrary to the principles set forth in Davis v. The Royal Trust Company.
I must now stress the exact meaning of the following observation in Syndicat des professeurs
[Page 757]
du CEGEP du Vieux-Montréal v. CEGEP du Vieux-Montréal (at p. 575):
Having reached the conclusion that the judgment of the Superior Court dismissing the motion for evocation should be restored, I see no need to consider the opinion expressed in the Court of Appeal by Lajoie J.A. who, while concurring in the conclusion of Crête J.A. that the judgment of the Superior Court should be reversed and a writ of evocation should be issued, would have appended the reservation that the judge at trial should not feel bound by that decision. This reservation was not expressed in the formal judgment of the Court of Appeal and it appears to me that from this it should be inferred that this questionable suggestion was not approved.
It should be noted that what was there being dealt with was not the effect of the decision of the judge of the Superior Court who authorized the writ to be issued, but of a judgment of the Court of Appeal reversing the refusal of the trial judge. Then, there was no indication that the “suggestion” had reference to the authority of res judicata rather than of precedent. In this connection, reference should be made to the above quoted passage from the judgment of Rinfret J., in Davis, at p. 208.
On the whole, I would dismiss the appeal. Respondents are entitled to their costs, but in the circumstances these costs will be the same as if the two respondents had not been separately represented.
Appeal dismissed with costs.
Solicitor for the appellant: Mario Létourneau, Montreal.
Solicitors for the respondent the City of Montreal: Péloquin, Badeaux, Allard and Lacroix, Montreal.
Solicitors for the respondent the Urban Community of Montreal: Courtois, Clarkson, Parson and Tétrault, Montreal.
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