SUPREME
COURT OF CANADA
Between:
Jon Breslaw
Appellant
and
City of Montreal
Respondent
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 10)
Concurring
Reasons:
(paras. 11 to 29)
|
LeBel J. (Fish, Abella, Charron and Rothstein JJ.
concurring)
Deschamps J. (McLachlin C.J.
and Binnie and Cromwell JJ. concurring)
|
______________________________
Breslaw v. Montreal (City), 2009 SCC 44, [2009] 3 S.C.R. 131
Jon Breslaw Appellant
v.
City of Montreal Respondent
Indexed as: Breslaw v. Montreal (City)
Neutral citation: 2009 SCC 44.
File No.: 32369.
2009: January 19; 2009: October 8.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for quebec
Civil procedure — Class action — Conditions for
authorizing action — Application for authorization to institute class action in
order to seek declaration that municipal by‑law imposing property taxes
are null and claim refund of tax overpayments — Whether class action should be
authorized — Code of Civil Procedure, R.S.Q., c. C‑25,
art. 1003.
After the amalgamation of the municipalities on the
island of Montréal, the Charter of Ville de Montréal provided, in order
to gradually achieve equality in taxation among the amalgamated sectors, for a
ceiling on yearly increases in the tax burden of the aggregate of the units of
assessment in each sector. B, a resident of one of the amalgamated sectors
that has since regained its autonomy, argued that the increases in the property
tax in 2004 and 2005 exceeded the 5% ceiling in many sectors of Montréal. He
applied for authorization to institute a class action on behalf of those
affected by the excessive increase in which he intended to seek declarations
that the municipal by‑laws concerning the tax burden were null and that
the by‑laws concerning taxes were “inconsistent” with s. 150.1 of
the Charter, and to ask for a refund of the property tax overpayments. The
Superior Court denied the requested authorization on the basis that the facts
alleged did not seem to justify the conclusions sought (art. 1003(b)
C.C.P.). The Court of Appeal affirmed that judgment.
Held: The appeal should
be dismissed.
Per LeBel, Fish, Abella,
Charron and Rothstein JJ.: The facts alleged by B do not seem to justify
the conclusions being sought, as the motion for authorization does not contain
executory conclusions. A declaration of inconsistency would not give rise at
this point to a liquid and exigible claim for the members of the group. Such a
claim could only be established at the end of a new fiscal and budgetary
exercise. Finally, the composition of the group presents the same difficulties
as in the context of an action for declarations that municipal by‑laws
are null. [5] [8‑9]
Per McLachlin C.J.
and Binnie, Deschamps and Cromwell JJ.: It can be seen from the Superior
Court judge’s reasons that he exercised his discretion under the C.C.P. to
determine whether the action should be authorized and decided that the
conclusion being sought did not flow from the alleged facts. This main reason
was sufficient to justify a refusal to authorize a class action. If a public
body acts outside the limits imposed by its enabling statute, the unavoidable
consequence is that its act is null. But if the act is not declared to be
null, it is presumed to be valid and its requirements must be satisfied. The
taxes were imposed under provisions B was not asking the court to quash. A
simple declaration of inconsistency would therefore not be a sufficient basis
for granting a partial refund. If B’s argument were accepted, the judge would
have to supplant the city, and indeed the government, in order to establish a
lawful tax amount. That is not a matter for the courts. [11] [15] [23‑28]
However, the judge at first instance erred in asserting
that an individual action could have the same result as a class action, since
success in an individual action does not apply in respect of all the other
ratepayers where a monetary remedy is sought. In addition, a class action
averts the need to bring thousands of individual actions. Finally, the
discretion referred to in art. 4.2 C.C.P. is exercised in the course of
the analysis of the four conditions for authorization set out in art. 1003
C.C.P. and cannot be regarded as a fifth condition for authorization of a class
action. [22] [27]
Cases Cited
By LeBel J.
Referred to: Marcotte
v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, aff’g 2007 QCCA 866,
[2007] R.J.Q. 1467.
By Deschamps J.
Referred to: Marcotte
v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Francœur v.
Municipalité régionale de comté d’Acton, [1985] R.D.J. 511; Comité de
citoyens et d’action municipale de St‑Césaire v. Ville de St‑Césaire,
[1986] R.J.Q. 1061; Gravel v. Corporation municipale de la paroisse de La
Plaine, [1988] R.D.J. 60; Bouchard v. Agropur Coopérative, 2006 QCCA
1342, [2006] R.J.Q. 2349; Hoffmann — La Roche v. Secretary of State for
Trade and Industry, [1974] 2 All E.R. 1128; St. Lawrence Cement
Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392.
Statutes and Regulations Cited
Act to reform the municipal
territorial organization of the metropolitan regions of Montréal, Québec and
the Outaouais, S.Q. 2000, c. 56, s. 1.
By‑law concerning taxes (fiscal 2004), City of Montréal, No. 03‑201, s. 3.
By‑law concerning taxes (fiscal 2005), City of Montréal, No. 04‑166, s. 3.
By‑law concerning
the tax burden (fiscal 2004), City of Montréal, No. 03‑204, s.
2.
By‑law concerning the tax burden (fiscal
2005), City of Montréal, No. 04‑169. s.
2.
Charter of Ville de Montréal, R.S.Q., c. C‑11.4, ss. 5, 150.1, 150.4, 150.5.
Code of Civil Procedure, R.S.Q., c. C‑25, ss. 4.2, 59, 67, 1003, 1005.
Authors Cited
Pépin,
Gilles, et Yvon Ouellette. Principes de contentieux administratif, 2e ed.
Cowansville, Qué.: Yvon Blais, 1982.
APPEAL from a judgment of the Quebec Court of Appeal
(Nuss, Morissette and Côté JJ.A.), 2007 QCCA 1542, [2007] Q.J.
No. 12620 (QL), 2007 CarswellQue 10170, affirming a decision by
Lacoursière J., 2006 QCCS 5503, [2007] R.J.Q. 318, [2006] Q.J.
No. 13747 (QL). Appeal dismissed.
Douglas C. Mitchell
and Katheryne A. Desfossés, for the appellant.
André Durocher, Véronique
Belpaire and Annie Gerbeau, for the respondent.
English version of the judgment of LeBel, Fish, Abella, Charron and
Rothstein JJ. delivered by
LeBel J. —
I. Introduction
[1] In this
appeal, as in the cases of Marcotte v. Longueuil (City) and Usinage
Pouliot Inc. v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, this
Court must consider some of the legal issues raised by the forced amalgamations
of Quebec municipalities that took place in the early 2000s. The amalgamation
process had a significant impact on the island of Montréal. For a few years,
all the municipalities on the island were amalgamated and the island consisted
of a single city known as Ville de Montréal. The new city comprised all the
municipalities existing on the island up to that time, together with the Communauté
urbaine de Montréal (Act to reform the municipal territorial organization of
the metropolitan regions of Montréal, Québec and the Outaouais, S.Q. 2000,
c. 56, s. 1; Charter of Ville de Montréal, R.S.Q., c. C‑11.4,
s. 5). After the events that gave rise to this dispute, the new City of
Montréal was partially dissolved, and some of the municipalities that had been
amalgamated were reconstituted.
[2] The
issue now before this Court emerged before this partial dissolution. It stems
from reforms to the tax systems of the amalgamated municipalities. The
legislature wanted to gradually achieve equality in taxation among the
amalgamated sectors of the new City of Montréal over a period of 20 years.
During this transitional period, the Charter of Ville de Montréal provided
for a ceiling, in each sector corresponding to the territory of one of the
amalgamated municipalities, on yearly increases in the tax burden of the
aggregate of the units of assessment. This ceiling applied, inter alia,
to the revenues derived from the general property tax:
150.1. The city may, for a fiscal year, fix any general
property tax rate in such manner that, in relation to the preceding fiscal
year, the increase in the tax burden borne by the aggregate of the units of assessment
situated in a sector and in respect of which all or part of the rate applies is
not greater than 5%.
This provision
is similar to the ones in issue in Marcotte and Usinage Pouliot.
The appellant submits that the city has violated it.
II. Origin of the Case
[3] The
appellant, Jon Breslaw, a resident of the City of Westmount — which became one
of the sectors of the City of Montréal and has since regained its autonomy —
contested the respondent’s application of s. 150.1 in the 2004 and 2005
fiscal years. In his opinion, the increases in the property tax for those
years had exceeded the 5% ceiling in many sectors of Montréal. He accordingly
applied for authorization to institute a class action on behalf of those
affected by the excessive increase. According to Mr. Breslaw’s original
motion for authorization, the group would comprise all residents of those
sectors where the property tax increase had allegedly exceeded the legal
maximum. In his conclusions, he asked for the municipal by‑law concerning
the tax burden for 2004 to be quashed, for a declaration that increases in the
tax burden of units of assessment that exceeded the 5% maximum were null, and
for an order that the city refund the group’s members for property tax
overpayments in 2004 and 2005.
[4] At the
time of presentation of the motion for authorization of the class action,
significant amendments authorized by the Superior Court were made to the
description of the group and to the conclusions. First of all, the amendments
included a more precise description of the sectors concerned and limited the
group to ratepayers in the 15 sectors of the city where the increase in the
general property tax had allegedly exceeded 5% in 2004 and/or 2005. Next, in
addition to seeking a declaration that the municipal by‑law concerning
the tax burden was null, the appellant asked in his motion that the by‑law
concerning taxes be declared to be [translation]
“inconsistent” with s. 150.1 of the Charter of Ville de Montréal.
Finally, in his conclusions, the appellant asked for a refund of the property
tax overpayments. In this respect, his conclusions differ substantially from
those of the appellants in Marcotte and Usinage Pouliot, who
would ask the court to quash the by‑laws authorizing the collection of
the taxes and to order that the taxes collected in the sectors at issue be
refunded in full.
III. Judicial History
A. Quebec Superior
Court
[5] Lacoursière J.
dismissed Mr. Breslaw’s motion for authorization to institute a class
action: 2006 QCCS 5503, [2006] Q.J. No. 13747 (QL). In his view,
according to what he considered to be a well‑established line of
authority and to the very words of Quebec’s Code of Civil Procedure,
R.S.Q., c. C‑25, his role at the authorization stage was limited to
determining whether the motion met the four conditions set out in
art. 1003 of the Code. He held that, although the motion did meet
the other requirements of art. 1003, it was inconsistent with
art. 1003(b), as the facts alleged did not seem to justify the
conclusions sought. In other words, Mr. Breslaw had not made out a prima
facie case, as required by the Code of Civil Procedure. In
Lacoursière J.’s opinion, Mr. Breslaw’s reasoning did not lead to a
refund of the property taxes (paras. 84‑87). The declaration of
inconsistency he sought could not place the city under an obligation to refund
money to the group members. The judge stated that he could not on his own
initiative amend so as to enhance the applicant’s conclusions at the authorization
stage (paras. 97‑98). He added that in the circumstances, a class
action did not offer more advantages than an individual action in nullity. On
this point, he referred to the case law of the Quebec Court of Appeal, which I
summarize in my reasons in Marcotte and Usinage Pouliot.
B. Quebec Court of
Appeal (Nuss, Morissette and Côté JJ.A.)
[6] The
Court of Appeal dismissed Mr. Breslaw’s appeal: 2007 QCCA 1542, [2007]
Q.J. No. 12620 (QL). It held that the principles enunciated in the
judgment in Marcotte v. Longueuil (Ville de), 2007 QCCA 866, [2007]
R.J.Q. 1467, were dispositive of the appeal. A class action was not an
option. Like the judge at first instance, the Court of Appeal noted that the
conclusions being sought were not executory.
IV. Analysis
[7] The
appeal raises questions similar to those I discuss in my reasons in Marcotte
and Usinage Pouliot. The only difference is the appellant’s
request, in the conclusions he seeks in the motion for authorization, that the
municipal by‑laws imposing the property taxes be declared to be
inconsistent with the Charter of Ville de Montréal.
[8] I
acknowledge that the conclusions set out in the appellant’s motion for
authorization represent a serious — and interesting — effort to resolve the
difficulties inherent in conclusions in which an applicant seeks simply to
quash municipal tax by‑laws and obtain a refund of the amounts collected
under them. The appellant sought to introduce nuances into the conclusions so
as to reflect the facts that only an overpayment was in issue and that the
group members had received services from the city in exchange for their
property taxes. Nevertheless, it seems to me that Lacoursière J. was
correct in holding that the motion for authorization did not contain executory
conclusions. This on its own would suffice to dispose of the appeal.
[9] Even
so, I believe it will be helpful to refer also to my reasons in Marcotte
and Usinage Pouliot. The composition of the group presents the same
difficulties as in the context of an action for declarations that municipal by‑laws
are null. Also, the only possible result of a declaration of inconsistency
would be to require the city to recalculate its budget and its taxes, including
the amount of the property tax. The conclusions of inconsistency would not
give rise at this point to a liquid and exigible claim. Such a claim could
only be established at the end of a new fiscal and budgetary exercise.
V. Conclusion
[10]
For these reasons, I would dismiss the appeal with costs.
English version of the reasons of McLachlin C.J. and Binnie, Deschamps
and Cromwell JJ. delivered by
[11]
Deschamps J. — This
appeal raises the same question of law as Marcotte v. Longueuil (City)
and Usinage Pouliot Inc. v. Longueuil (City), 2009 SCC 43, [2009] 3
S.C.R. 65. This Court must decide whether the courts may, in exercising their
discretion to authorize or refuse to authorize a class action, grant
municipalities immunity from the recovery of wrongfully collected taxes in
light of the fact that the class action is intended to facilitate access to
justice. In my reasons in Marcotte and Usinage Pouliot, I say
that they may not. In the instant case, it can be seen from the Superior Court
judge’s reasons (2006 QCCS 5503, [2006] Q.J. No. 13747 (QL)) that he
exercised his discretion under the Code of Civil Procedure, R.S.Q.,
c. C‑25 (“C.C.P.”), to determine whether the action should be
authorized. He held that one of the conditions had not been met. It was only
on an additional basis that he considered and accepted the argument, based on Francœur
v. Municipalité régionale de comté d’Acton, [1985] R.D.J. 511 (C.A.), Comité
de citoyens et d’action municipale de St‑Césaire v. Ville de St‑Césaire,
[1986] R.J.Q. 1061 (C.A.), and Gravel v. Corporation municipale de la
paroisse de La Plaine, [1988] R.D.J. 60 (C.A.), that the class action is
not an “appropriate” procedure for seeking declarations that municipal by‑laws
are null. In the circumstances, it would be unwise to intervene. I would
accordingly dismiss the appeal.
[12]
As was the case for the City of Longueuil, the amendments to the Charter
of Ville de Montréal, R.S.Q., c. C‑11.4 (which came into force
on January 1, 2002), resulted from the enactment of the Act to reform
the municipal territorial organization of the metropolitan regions of Montréal,
Québec and the Outaouais, S.Q. 2000, c. 56. Under that Act, the
respondent, the City of Montréal (“Montréal”), replaced 28 municipalities,
including Westmount, where Mr. Breslaw, the appellant in this appeal,
resides. Like the appellants in Marcotte and Usinage Pouliot,
Mr. Breslaw submits that the taxation power was not exercised lawfully.
His action has a different basis, however.
[13]
In his motion to institute proceedings in which he applied for
authorization to bring a class action, Mr. Breslaw submitted that certain
by‑laws concerning the tax burden were ultra vires. According to
s. 150.1 of the Charter of Ville de Montréal, Montréal may increase
the property tax rate for a sector only if the increase in the tax burden does
not exceed 5%. Section 150.4 provides that where a tax increase in relation to
the preceding fiscal year does not result solely from the constitution of the
new city, the 5% maximum applies only in respect of the part of the increase
that does result from its constitution. And s. 150.5, para. 2,
provides that the government may, by regulation, determine the only cases in
which an increase is deemed not to result from the constitution of the new
city.
[14]
Montréal adopted By‑law No. 03‑204, the By‑law concerning
the tax burden (fiscal 2004), and By‑law No. 04‑169, the By‑law
concerning the tax burden (fiscal 2005); in each of them, s. 2
identifies the expenditures that result from the constitution of the new city
and those that are not included in the calculation of the ceiling set in
s. 150.1. Mr. Breslaw argued that s. 2 of each of these by‑laws
was ultra vires, because only the government could determine which
increases were related to the constitution of the new city. Thus, although the
increase in the tax burden appeared to be consistent with s. 150.1 because
it was less than 5%, in reality it was not consistent with that section,
because Montréal had made adjustments that it did not have the authority to
make. The appellant accordingly asked for a declaration that the provisions in
question were null and for a refund of the taxes paid in excess — if the city’s
adjustments were disregarded — of the 5% limit.
[15]
At first instance, Montréal submitted that even though
Mr. Breslaw’s argument was valid, the conclusion he sought did not flow
from the alleged facts, because the taxes had been imposed not under the by‑laws
concerning the tax burden, but under provisions he was not asking the court to
quash, namely s. 3 of the By‑law concerning taxes (fiscal 2004),
No. 03‑201, and s. 3 of the By‑law concerning taxes
(fiscal 2005), No. 04‑166. Absent a declaration that the
provisions imposing the taxes were null, these provisions were valid. In
response to this argument by Montréal, Mr. Breslaw amended his pleadings.
But instead of seeking a declaration that the by‑laws concerning taxes were
null, he asked for a declaration that the provisions authorizing Montréal to
collect the taxes were [translation] “inconsistent”
with s. 150.5 of the Charter of Ville de Montréal. He requested,
for each of the members of the proposed class action group, a refund of the
property tax overpayments, as opposed to a full refund of all property taxes
paid. In his own case, the amounts in issue were $560 for 2004 and $753 for
2005.
[16]
Thus, Mr. Breslaw’s action is different from those of the
appellants in Marcotte and Usinage Pouliot, not only because the
legal basis for the excess of jurisdiction is not the same, but also because
Mr. Breslaw is asking neither that the by‑laws imposing the taxes be
quashed nor that all the taxes paid be refunded. Moreover, whereas in Marcotte
and Usinage Pouliot neither the Superior Court nor the Court of Appeal
considered in detail the conditions set out in art. 1003 C.C.P. for
authorizing the institution of a class action, in the instant case,
Lacoursière J., the Superior Court judge, reviewed those conditions as
well as the scope and timing of the exercise of his discretion in this regard.
[17]
On the basis of the comments of Pelletier J.A. in Bouchard v.
Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349,
Lacoursière J. held that his discretion had to be exercised while
reviewing each of the four conditions set out in the Code of Civil Procedure
and not as a distinct preliminary stage. Although he did not explicitly mention
art. 4.2 C.C.P., there is no question that the discretion he referred to
was the one provided for there, since Pelletier J.A. himself had mentioned
it in Agropur. Lacoursière J. then reviewed the conditions for
authorizing a class action. He found that the questions of law or fact were
sufficiently identical, similar or related; that the composition of the group
made the application of art. 59 or 67 C.C.P. impracticable; and that the
proposed representative was in a position to represent the members of the group
adequately. However, he found that the facts alleged did not seem to justify
the conclusions sought.
[18]
According to Lacoursière J., the facts alleged by Mr. Breslaw
did not lead to the conclusion being sought: the refund of an overpayment. He
saw this as a problem of legal logic. If a provision has not been adopted in
conformity with its enabling statute but has not been declared to be null, this
cannot then be remedied by a declaration of inconsistency. The judge rejected
Mr. Breslaw’s suggestion that the court could amend his conclusions to
make them legally acceptable. In Lacoursière J.’s view, art. 1005
C.C.P., pursuant to which the judge may identify the conclusions sought, did
not permit the court to substitute its own conclusions for those of the
litigants:
[translation] The
article does not confer on the Court the discretion to substitute its own
conclusion for the one explicitly set out on the application for authorization
in order to further the remedy sought, which in the present case is a recovery
of taxes.
This is all the more true since the conclusion that the Applicant asks
the Court to reformulate, if appropriate, is the very legal basis of the
monetary remedy he seeks, namely, the recovery of taxes. Finding that the Court
has the power to reformulate this conclusion would be tantamount to distorting
and altering the meaning of article 1003(b) [C.C.P.].
It is worth noting that the Applicant, who was ably represented, chose
not to suggest an alternative formulation to the conclusion sought with respect
to the Tax By‑laws. The Court cannot do so in his place.
Consequently, the legal syllogism that the Applicant
proposes, which is based on the alleged facts, does not justify the recovery of
taxes, the remedy he seeks for the members of the group. [paras. 98‑101]
[19]
The judge added that [translation]
“the Court, . . . relying on its discretion in its analysis of
the conditions set out in article 1003 C.C.P., is of the view that a class
action is not an appropriate vehicle”, because “[t]he recovery of taxes sought
by the Applicant could easily be obtained through an individual action which
concluded that the municipal by‑law at the origin of the property tax was
unlawful” (paras. 102‑3). He accordingly dismissed the application.
[20]
The Court of Appeal did not distinguish the instant case from Marcotte,
and it referred to its reasons in that case (2007 QCCA 1542, [2007] Q.J.
No. 12620 (QL)).
[21]
Mr. Breslaw argues that whether his conclusions are appropriate
should be determined at trial and not at the authorization stage. He submits
that he limited his conclusions to a declaration of inconsistency because he
wanted to suggest an approach that is tailored to the specific facts of the
case and would make the recovery of taxes possible without having the perverse
effect that would flow from a conclusion of nullity. In his submission, the
argument that the by‑law must be declared to be null before a declaration
of inconsistency can be obtained is a “technical” one.
Analysis
[22]
For the reasons I give in Marcotte and Usinage Pouliot, I
agree with the Superior Court judge in the instant case as regards the timing
and scope of the exercise of the discretion referred to in art. 4.2
C.C.P. This discretion is exercised in the course of the analysis of the four
conditions for authorization set out in art. 1003 C.C.P. It cannot be
regarded as a fifth condition for authorization of a class action.
Article 4.2 C.C.P. does not establish a free‑standing discretion.
The discretion must be exercised in the context of the proceeding before the
judge.
[23]
I also agree with the Superior Court judge that the appellant’s legal
syllogism is flawed. If a public body acts outside the limits imposed by its
enabling statute, the unavoidable consequence is that its act is null. But if
the act is not declared to be null, it is presumed to be valid and its
requirements must be satisfied: G. Pépin and Y. Ouellette, Principes
de contentieux administratif (2nd ed. 1982), at p. 280; Hoffmann —
La Roche v. Secretary of State for Trade and Industry, [1974] 2 All E.R.
1128 (H.L.), at pp. 1153‑54. A court may not take the place of the
public body and make a decision that body should have made, especially where
setting the amount of taxes is concerned.
[24]
The appellant seeks only a declaration of inconsistency, as he considers
some of the taxes imposed and collected to be valid. Lacoursière J.
rightly observed that a simple declaration of inconsistency would not be a
sufficient basis for the remedy — a partial refund — being sought. In this
Court, the appellant seeks the same conclusion, which he describes as
“creative”. In his opinion, a declaration of nullity would have “the perverse
effect of annulling the collection of all taxes collected by the Respondent,
including taxes validly collected and paid” (factum, at para. 73). Should
the conclusion be found to be inappropriate, the appellant would like to leave
it to the trial judge to reframe it. As in the Superior Court, he has not
offered to do so himself. Moreover, this is consistent with his position that,
since a portion of the taxes paid is valid, he does not wish to “impoverish the
Respondent any more than [is] legally justified” (para. 78).
[25]
In St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008]
3 S.C.R. 392, this Court held that judges hearing class actions have a broad
latitude in drafting conclusions capable of providing group members with an
adequate remedy. Judges hearing motions for authorization have a similar power
under art. 1005 C.C.P. However, the exercise of this power must have a
valid legal basis, and it cannot be used to modify the action.
[26]
The appellant no doubt had reasons for not asking that the by‑laws
be quashed. One of them can be inferred from the proceedings in Marcotte
and Usinage Pouliot. If the appellant had asked that the by‑laws
be quashed, the amount of the refund claim would have corresponded to the total
of the property tax paid. The appellant refrained from seeking this conclusion
in the instant case. He wanted to limit his claim to the amount of the
overpayment. But if the appellant’s argument were accepted, the judge would
have to supplant the city, and indeed the government, in order to establish a
lawful tax amount. That is not a matter for the courts. As can be seen, the
appellant’s choice is based on a strategy decision that goes to the substance
of his case. This would not amount to a simple reframing of the conclusions.
Furthermore, if Lacoursière J. had undertaken to amend the conclusions, it
would have been necessary to reframe them all, including the requested
declaration of inconsistency and the monetary claim. Pointing out that
Mr. Breslaw was ably represented, the judge found that it would be inappropriate
for him to take Mr. Breslaw’s place in recasting the legal basis of the
claim and the conclusions. He relied, inter alia, on the fact that
counsel for Mr. Breslaw had refused to submit an alternative conclusion
entailing a declaration that the by‑law authorizing the taxes was null
(para. 100). I have difficulty seeing how this Court could interfere with
the judge’s exercise of this discretion.
[27]
Lacoursière J. also mentioned, as an additional reason, that an
individual action for the recovery of taxes collected pursuant to unlawful
municipal by‑laws could produce the same outcome for all the aggrieved
ratepayers, at a lower cost and without the inherent complexity of a class
action. On this point, it is my opinion that the judge failed to consider the
fact that a class action averts the need to bring thousands of individual
actions. As I explain in Marcotte and Usinage Pouliot, success
in an individual action does not apply in respect of all the other ratepayers
where a monetary remedy is sought. The judge therefore erred in asserting that
an individual action could have the same result as a class action. Moreover,
although he made this additional comment while discussing the relationship
between the facts alleged and the conclusions sought, it is hard to see a
connection between his comment and this condition for authorizing a class
action. Article 1003(b) requires the court to determine whether, from a
legal standpoint, the conclusions being sought can follow from the alleged
facts, not whether the same conclusions might be granted in an individual
action. What must be done is to determine not whether the action is
appropriate, but whether the facts alleged in the motion may, prima facie,
justify the conclusions sought. This is a question that goes to substance, not
to procedure.
[28]
Although I do not agree with this additional reason, the main reason
given by the Superior Court judge was sufficient to justify his refusal to
authorize a class action.
[29]
For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Irving Mitchell Kalichman,
Montréal.
Solicitors for the respondent: Fasken Martineau DuMoulin,
Montréal.