Supreme Court of Canada
Séminaire de Chicoutimi v. La Cité de Chicoutimi, [1973] S.C.R. 681
Date: 1972-05-24
Séminaire de Chicoutimi (Plaintiff)
and
Attorney General and Minister of Justice of the Province of Quebec Appellants;
and
The City of Chicoutimi (Defendant) Respondent.
1971: April 29, 30 and May 3; 1972: May 24.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall and Laskin JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Constitutional law—Municipal by-law—Petition to quash—Unconstitutionality of the Cities and Towns Act, R.S.Q. 1964, c. 193, s. 411 and 13 George VI, c. 59, s. 42—Exclusive jurisdiction of the Provincial Court and of the Superior Court under s. 96 of the British North America Act—Evocation—Code of Civil Procedure, s. 846.
The appellant, Seminary of Chicoutimi, contending that By-law No. 717 adopted by the respondent was ultra vires, submitted to the Provincial Court a petition to quash, on the strength of the provisions of s. 42 of 13 George VI, c. 59 and of s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193.
In spite of the contention of the respondent that these dispositions were unconstitutional and that the Provincial Court had no jurisdiction in this matter, the latter proceeded with the hearing and allowed the appellant’s petition, considering that it did not have authority to decide the constitutional question, that the want or excess of jurisdiction should have been raised by means of evocation, and that the Court had de facto jurisdiction. It held that By-law 717 was null and ultra vires the City.
The Court of Appeal concluded that the provisions of s. 42 of 13 George VI, c. 59 and s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, were ultra vires the Legislature and that, for this reason, the Provincial Court did not have jurisdiction to hear the appellant’s petition, reversed the judgment of the Provincial Court, rejected the Attorney General’s intervention, and referred the petition to the Superior Court. The appellants are appealing to this Court from these decisions and the respondent, by a cross-appeal, challenges the decision ordering that the petition be referred to the Superior Court.
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Held: The appeal and cross-appeal should be dismissed.
The provisions of s. 42 of 13 George VI, c. 59 and s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, are ultra vires the Provincial Legislature because they confer on a provincial court, presided over by a judge appointed by the Government of the Province, jurisdiction to hear and decide on a matter which must be heard and decided by a court presided over by a judge appointed by the Government of Canada, in accordance with s. 96 of the British North America Act.
With respect to the Provincial Court, since the want of jurisdiction by reason of the subject-matter was raised in limine litis and throughout the whole contestation by the respondent, it could not ascertain that it had jurisdiction by reason of the subject matter and so dispose of the City’s objection without ruling on the constitutionality of the Act conferring that jurisdiction on it, these two questions being inextricably bound up in the present instance. However, generally, an action brought before a court other than that with jurisdiction over the case is not to be dismissed but referred to the competent court, even in the case of a court lacking jurisdiction by reason of the subject matter.
APPEAL and CROSS-APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing a judgment of the Provincial Court. Appeal and Cross‑Appeal dismissed.
R. Dufour, for the plaintiff, appellant.
J. Landry, Q.C., and C. Gagnon, Q.C., for the Attorney General of the Province.
G. Prévost and L.P. de Grandpré, Q.C., for the defendant, respondent.
P.M. Ollivier, Q.C., for the Attorney General of Canada, intervenant.
P. Lamontagne, for the respondent, cross-appellant.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—Respondent, the City of Chicoutimi, hereinafter referred to as “the City,” on August 1, 1966, adopted a by-law
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bearing No. 717, the purpose of which was to impose a special tax pertaining to land on the basis of the area of land subject to this tax in the municipality of Chicoutimi. Pursuant to this by-law, the property of the appellant, the Seminary of Chicoutimi, hereinafter referred to as “the Seminary”, was assessed and entered on the collection roll.
Contending that this by-law was null, illegal, ultra vires, discriminatory and unfair, the Seminary sought to have it quashed by applying to the Provincial Court—formerly the Magistrate’s Court—on the strength of the provisions of s. 42 of the Act respecting certain judicial recourses in municipal and school matters, 13 George VI, c. 59, adopted by the Legislature in 1949. These provisions, reproduced in s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, are designed to transfer to the Magistrate’s Court the jurisdiction then exercised by the Superior Court under s. 411, R.S.Q. 1941, c. 233, with respect to the quashing of municipal by-laws on grounds of illegality.
In the City’s submission, these provisions, ss. 42 of 13 George VI, c. 59 and 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, are ultra vires the provincial Legislature because they are transferring to a provincial Court, presided over by a judge appointed by the Government of the province, matters which are to be decided by a Court presided over by a judge appointed by the Government of Canada, in accordance with the provisions of s. 96 of the British North America Act. This explains why, in a motion similar to a declinatory exception, the City requested the judge of the Provincial Court seized of the case, Judge André Gauthier, to declare these provisions unconstitutional and hold himself without jurisdiction to proceed with the hearing on this petition to quash a by-law.
Eventually, the learned judge decided to proceed with the hearing of the petition to quash, and the City accordingly presented argument on the merits, subject to its objection as to jurisdiction. In accordance with art. 95 of the Code of
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Civil Procedure, the City notified the Attorney General, who then intervened in support of the constitutionality of these provisions enacted by the Legislature.
With regard to the judgment given by the Provincial Court on April 25, 1968, it appears sufficient at this stage of the proceedings to note that Judge Gauthier considered that the Provincial Court did not have authority to decide the constitutional question, that the want or excess of jurisdiction should have been raised by means of evocation, and that the Court had at least de facto jurisdiction. However, upon further considering the constitutional question, he expressed the opinion that the statutes in question were intra vires the Legislature. On the merits of the petition to quash by-law 717, the learned judge held that this By-law was unfair, discriminatory, null and ultra vires the City, and for these reasons he allowed the Seminary’s petition, granted the Attorney General’s intervention and quashed and annulled the by-law.
This judgment was reversed by a unanimous judgment of the Court of Appeal, then constituted by Tremblay C.J. and Casey, Taschereau, Montgomery and Rivard JJ. The reasons for judgment were stated by Montgomery J. After holding that the Provincial Court had jurisdiction to decide on the constitutional question, and that the writ of evocation specified in art. 846 et seq. of the Code of Civil Procedure was an alternate and not an exclusive remedy, the learned judge considered the main question, namely that of the constitutionality of the provisions of s. 42 of 13 George VI, c. 59 and s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, concluding that these provisions were ultra vires the Legislature, and that for this reason the Provincial Court did not have jurisdiction to hear the Seminary’s petition. Hence the unanimous judgment by the Court of Appeal, which allowed the City’s appeal with costs, reversed the judgment of the Provincial Court, rejected the Attorney General’s intervention, recom-
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mending him to pay the costs thereof, and referred the Seminary’s petition to quash the by‑law to the Superior Court.
The Seminary of Chicoutimi and the Attorney General and Minister of Justice of the Province of Quebec are appealing to this Court from these decisions, and the City, by a cross-appeal, challenges that judgment order which provides for the Seminary’s petition to be referred to the Superior Court.
The crucial point in this case is whether the provisions of s. 42 of 13 George VI, c. 59 and s. 411 of the Cities and Towns Act, R.S.Q. 1964, c. 193, are ultra vires the provincial Legislature because they confer on a provincial court, presided over by a judge appointed by the Government of the province, jurisdiction to hear and decide on a matter—namely, a petition to quash a municipal by-law on grounds of illegality and not merely on grounds of procedural irregularity—which, in the view of the City and the Court of Appeal, must be heard and decided by a court presided over by a judge appointed by the Government of Canada, in accordance with s. 96 of the British North America Act.
Be it said at this point that if, as the Court of Appeal held, and as I also believe for the reasons stated below, this question must be answered affirmatively, then it is clear that the other questions—in particular whether in the case at bar evocation is an exclusive, and not alternate, remedy, and whether the Provincial Court had jurisdiction to rule on the constitutionality of the foregoing sections—become utterly academic at this stage of the proceedings. Moreover, and in view of the form in which these two questions have arisen in the present case, I would add that I am respectfully in agreement with the conclusion reached by the Court of Appeal. Because, since the want of jurisdiction by reason of the subject matter was raised in limine litis and throughout the whole contestation by the City, as it could moreover be raised by the court of its own motion by virtue of what is implied in art. 164 of the Code of Civil Procedure, I do not really see how the Provincial Court could in the circumstances
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ascertain, as it was bound to do, that it had jurisdiction by reason of the subject matter, and so dispose of the City’s objection, without ruling on the constitutionality of the Act conferring that jurisdiction on it. These two questions are inextricably bound up in the present instance, since the court’s jurisdiction was necessarily dependent on the constitutionality of the legislative provisions purporting to confer such jurisdiction on it.
On the constitutionality aspect, the problem in the case at bar derives from combining these provisions of the British North America Act which, on the one hand, confer exclusive jurisdiction on the provinces over the Administration of Justice in the province, including the Constitution, Maintenance and Organization of Provincial Courts and—apart from the exception laid down by s. 96—the power to appoint judges to these courts, and, on the other hand, confer on the central government the exclusive power of appointing
“…the judges of the Superior, District and County Courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick.”
Consequently, therefore, this provision in s. 96 implicitly denies the provinces the power of bestowing upon those courts which are presided over by judges they appoint the jurisdiction of the courts described in this section. (Toronto Corporation v. York Corporation; The Attorney General for Ontario v. Victoria Medical Building Limited.)
The question presented in the case at bar is whether the jurisdiction conferred by the provisions of s. 42 of 13 George VI, c. 59, and s. 411 of the Cities and Towns Act R.S.Q. 1964, c. 193, is, in a general way, in conformity with the kind of jurisdiction exercised in 1867 by the courts of summary jurisdiction, rather than with the kind of jurisdiction exercised by the courts described in s. 96. (In Re Adoption Act
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Reference; Labour Relations Board of Saskatchewan v. John East Iron Works.)
Leaving aside for the moment any reference to the legislation concerning the municipal administration of Lower Canada, there is no doubt that the jurisdiction conferred on the Magistrate’s Court by the statutes the constitutionality of which is here in question was, before July 1, 1867, exercised by the Superior Court, and in exceptional cases by the Circuit Court which, at least for a time, shared this jurisdiction conferred on the Superior Court, under certain circumstances and in certain judicial districts. This follows (i) from the Act of 1849, 12 Victoria, c. 38, titled An Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower Canada; (ii) from the Act of 1853, 16 Victoria, c. 211, aimed, inter alia, at removing certain doubts raised with respect to the meaning of the last part of s. 7 of 12 Victoria, c. 38; and (iii) from the 1867 Code of Civil Procedure, put into effect on June 28, 1867, only a few days before the British North America Act came into force.
Indeed, it is known that on the eve of Confederation the Superior Court still exercised—as it had done since its creation in 1849—(a) the general jurisdiction which was conferred by s. 6 of the Act of 1849, and extended by s. 2 of c. 78, C.S.L.C. 1860, to hear and determine in the first instance all suits or actions which were not exclusively matters for the Circuit or Admiralty Courts, and (b) the special jurisdiction conferred on it by s. 7 of the Act of 1849, and extended by s. 4 of c. 78, C.S.L.C. 1860, to exercise a superintending and reforming power and control over courts of inferior jurisdiction and, in particular, over bodies politic and corporate within Lower Canada, including of course municipal corporations. This general jurisdiction, which makes the Superior Court the court of original general jurisdiction, is recognized in art. 28 of the 1867 Code of Civil Procedure, and while no specific provision is to be found in that
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Code relating to this special superintending and reforming power and control by the Superior Court, it can be seen that this power was extended before and after 1867, as appears in s. 2329 of the 1888 Revised Statutes, the relevant provisions of which were substantially reiterated in Art. 50 of the 1897 Code and in art. 33 of the present Code.
Be it noted that the special superintending jurisdiction of the Circuit Court which could be exercised concurrently with the Superior Court pursuant to the provisions of s. 3(2) of c. 79 of the Consolidated Statutes of Lower Canada, 1860, extended under that section to justices of the Peace and commissioners for the summary trial of small causes, and not to bodies politic and corporate within Lower Canada.
Finally, it should be pointed out that the courts of Lower Canada are listed and classified as to jurisdiction in the 1867 Code of Civil Procedure. These are the Court of Queen’s Bench (Appeal side), the Court of Review, the Superior Court, the Circuit Court, and, classified in Book Fifth under the heading of INFERIOR JURISDICTIONS, the Commissioners’ Court for the summary trial of small causes, the Recorder’s Court in certain cities, and finally Trinity House. No provision of this Code indicates that any court other than the Superior Court had original jurisdiction to quash municipal by-laws on grounds of excess of jurisdiction.
Referring now to the legislation relating specifically to the municipal administration of Lower Canada at the time of Confederation, reference must be made, except in the case of a city, town or borough incorporated by a special Act, to the Act respecting Municipalities and Roads in Lower Canada, also cited as The Lower Canada Municipal Act of 1860, C.S.L.C. 1860, c. 24. The fourth part of this Act—ss. 62 et seq.—deals mainly with penalties, actions, and appeals, and includes various provisions of a declaratory, temporary and special nature.
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Much stress was placed on the fact that in s. 66(1) the County Council is given the right of reviewing or disallowing a by-law passed by a local municipality, on appeal presented by at least five electors or a majority of the persons interested, if less than ten. The County Council, a municipal body composed of the mayors of the various local municipalities in the county in which mayors were elected or appointed, was required as such to make administrative decisions in certain municipal matters. It should however be noted that, under the prohibition placed on it by s. 66(5), the County Council had no power to disallow or amend a by-law passed by the Council of a town or village municipality.
The statutes prior to Confederation, to which we were referred in order to show that, in certain municipal matters, the Circuit Court had appellate jurisdiction from decisions of county and local councils, are of no assistance in stating conclusively that on the eve of Confederation there was, in addition to the Superior Court, another court of original jurisdiction having competence anywhere in Lower Canada with respect to quashing by-laws of towns or villages on grounds of illegality. The question of whether the Circuit Court could have had a similar jurisdiction, moreover, seems academic in view of the question before us, for, as was unanimously said by the judges of the Court of Appeal in the reference on “the Constitutionality of the Act respecting the jurisdiction of the Magistrate’s Court”, 11-12 Eliz. II, c. 62, the Circuit Court, as it existed at the time of Confederation—and as it remained until such Court was abolished in 1953—was the second most important civil court of original jurisdiction in Lower Canada, and has always remained included among the courts enumerated in s. 96 of the British North America Act. I feel, in particular, that the following extract from the
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reasons given by Mr. Justice Choquette, at pages 17, 18 and 19, is relevant:
[TRANSLATION] Before and after Confederation, the Circuit Court was always presided over by a judge of the Superior Court and, since 1889 in Montreal, by one of the judges specially appointed for that Court by the federal government. At no time did the Province claim the right of appointing these judges. Moreover, the Circuit Court does not appear in the chapter on inferior jurisdictions of the 1867 Code of Civil Procedure. In Art. 1061 of that Code the court was designated as the “Circuit Court for the district”, when sitting in the same location as the Superior Court, and its jurisdiction then extended to the whole district. In Art. 1062 it was designated as the “Circuit Court in and for the county of…”, when a proclamation by the Governor had authorized it to sit in a county other than that in which the Superior Court for the district was sitting. Art. 1064 gave the authority to preside over the Circuit Court only to judges of the Superior Court. Referring to the district Circuit Court, Art. 1198 designated it as the “(Circuit) Court in the district”, the word “Circuit” being in parentheses.
In his report on the disallowance of the 1888 statute, the then Minister of Justice, Sir John Thompson, quoted by W.E. Hodgins, wrote as follows:
“The circuit court was therefore, at the time of the union, on one sense, a branch of the superior court. The powers and duties of superior court judges included the powers and duties of circuit court judges. When the Governor General appointed a judge of the superior court, under section 96 of the British North America Act, the appointment carried with it an appointment as circuit court judge.
The judges of the circuit court were, therefore, among the judges, who, under section 96, were to be appointed by the Governor General. They were among the judges whose qualification was prescribed by section 98 as being, simply, membership of the bar of the province.
The circuit court judges, inasmuch as they were superior court judges, had their tenure of office prescribed by section 99. They were to hold office during good behaviour, and were to be removable by the Governor General on the joint address of the Senate and the House of Commons. They were among the judges whose salaries, under section 100, were to be fixed and provided by the Parliament of Canada.”
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In the Small Debts Act case, Walkem J. said:
“The Small Debts Court is not one of the courts mentioned in the section, either in name or nature. It is not a superior court; nor is it a district court, for that court, within the meaning of the section, is a court peculiar to the Province of Quebec; nor is it a county court, as that court is constituted here or in Ontario.”
In Rimmer v. Hannon, Lamont J. said:
“In lower Canada there were courts called circuit courts. The Province was divided into 20 districts and a court established in each, having jurisdiction in civil actions up to $200.00. Mr. Lefroy, in his article above referred to states that the term ‘district’ was an alternative to the term “circuit”. Those courts were presided over by a superior court judge, and Sir John Thompson, in his celebrated report on the Quebec District Magistrates’ Act (1888), states that they were, in one sense, branches of the superior courts.”
It is said that this division into twenty districts dealt only with the Superior Court; but we have seen that the district Circuit Court was held in the same locations as the Superior Court, and that its jurisdiction extended to the whole district.
At the time of Confederation the Circuit Court was the second most important civil court of original jurisdiction in Lower Canada, as the County Court was for Upper Canada. If the authors of the Constitution had intended to exclude the Circuit Court from the scope of s. 96, they would certainly have said so, as they did for the Courts of Probate in Nova Scotia and New Brunswick.
I conclude that in 1867, and until it was abolished in 1953, the Circuit Court was a “District court” within the meaning of s. 96 of the British North America Act. It follows that the Province would not have the power to appoint the judges of that court, and could not do so indirectly by changing the name of the court or transferring its powers to an inferior tribunal. As Drake J. states in the aforementioned Small Debts Act case, at p. 264:
“…the Province could not by abolishing the existing courts, and establishing others under a different nomenclature with equal jurisdiction, escape from the
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supreme power vested in the Governor General of appointing the judges.”
It should also be noted, as Montgomery J. points out on page 31 of the aforementioned report, that as originally constituted—that is, after Confederation—the Magistrate’s Court was to exercise the jurisdiction formely conferred on the Court of Justices of the Peace and the Commissioners’ Court, which were both recognized at the time of Confederation as courts of inferior jurisdiction. It is true that the appeal made against this decision was upheld by this Court—see—which felt it had to limit itself strictly to answering the question submitted by the Lieutenant Governor in Council, which dealt exclusively with the constitutionality of the Act respecting the jurisdiction of the Magistrate’s Court, 11-12 Eliz. II, c. 62. However, this in no way detracts from the respect due to the very well reasoned opinions of the learned judges, and I feel it is sufficient, for the purposes of deciding the question now before this Court, to adopt the foregoing reasons of Mr. Justice Choquette.
For these reasons and those given in the judgment appealed from, I would therefore hold that the jurisdiction conferred by the legislative provisions the constitutionality of which is now being challenged is not, in a general way, in conformity with the kind of jurisdiction exercised in 1867 by the courts of summary jurisdiction, but conforms rather to the kind of jurisdiction exercised by the courts described in s. 96.
I would therefore dismiss the appeal with costs.
On the cross-appeal, respondent submitted that, if the appeal proper was dismissed, the order in the judgment of the Court of Appeal to the effect that the Seminary’s petition be referred to the Superior Court should be set aside, and further, that the parties should be put out of court. This is a question of practice and procedure in the Province. In Houle v. Dame Lessard, the Court of Appeal recently recon-
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sidered the matter and held that, generally, an action brought before a court other than that with jurisdiction over the case is not to be dismissed but referred to the competent court, and that this rule applies even in the case of a court lacking jurisdiction by reason of the subject matter. In the case at bar it has not been shown that the Court of Appeal erred in making the order which it was within the power of the trial court to make.
I would dismiss the cross-appeal with costs.
Appeal and cross-appeal dismissed with costs.
Solicitors for the appellant, Seminary of Chicoutimi: Dufour, Tremblay & Larouche, Chicoutimi.
Solicitors for the appellant, Attorney General of the Province of Quebec: Talbot & Landry, Chicoutimi.
Solicitors for the respondent, City of Chicoutimi: Chouinard, Prévost, Casgrain, Vaillancourt & Angers, Chicoutimi.
Solicitor for the intervenant, Attorney General of Canada: Paul Ollivier, Ottawa.
Solicitors for the respondent, City of Chicoutimi, (cross-appeal): Geoffrion & Prud’homme, Montreal.
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