Supreme Court of Canada
Montreal (City of) v. Esquire Club Inc. et al., [1975] 2 S.C.R. 32
Date: 1974-04-29
City of Montreal Appellant;
and
Esquire Club Inc. Respondent;
and
Municipal Court of the City of Montreal Mise-en-cause.
1974: March 26; 1974: April 29.
Present: Laskin C.J. and Judson, Pigeon, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Municipal law—Operating without a licence—Summonses for breaches of municipal by-law—Issuance of writ of mandamus granted with postponement orders—Motion to strike order referring to further informations and summonses—Code of Civil Procedure, art. 758.
The Club, which had been in operation for many years, had its application for renewal of the licence required by municipal by-laws refused by appellant, in 1963 and this led to the first writ of mandamus still pending and irrelevant to this appeal. Despite the lack of a licence it continued from 1963 to 1970 doing business and paid the applicable taxes and assessments without interference by the City, from 1963 to 1970. In 1970 summonses were served on it at the City’s request for “operating” a business without the licence required. A judgment of the Superior Court, upheld by the Court of Appeal, granted respondent’s petition for a second writ of mandamus, with an order to the mise-en-cause to postpone, until final judgment should be rendered, (1) the hearing of any summons served on the Club, and (2) the laying of any further information against the Club, and the issuance of any new summons. Appellant asks that the second conclusion be struck, relying on art. 758 of the Code of Civil Procedure.
Held: Judgment a quo varied by ordering postponement of hearing of any further summons served on respondent at the instance of appellant for the same purposes.
It is difficult to apply to this petition for mandamus the rules governing motions for evocation, as proposed by the Court of Appeal. These are two different domains. The comparison can hardly apply to proceedings not yet instituted, and it would lead
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into an analysis of the meaning and scope of art. 758 C.C.P., an analysis which does not seem to be called for in the circumstances. Basically, the parties are anxious to avoid being obliged to oppose each other in the Municipal Court before the merits of the claims put forward by respondent have been finally determined in the mandamus proceedings. The intention is therefore to arrive at this result while at the same time protecting appellant against the effects of prescription.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, affirming a judgment of the Superior Court. Judgment a quo varied by ordering postponement of hearing of any further summons served on respondent at the instance of appellant for the same purposes.
R. Bilodeau, for the appellant.
J.P. Ste-Marie, Q.C., for the respondent.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—Appellant asks this Court to vary a Court of Appeal judgment affirming a Superior Court decision which granted a petition for issue of a writ of mandamus.
Respondent added two ancillary conclusions to those relating to the mandamus:
(1) that the hearing of any summons already served on the Club be postponed, and
(2) that the laying of any further information against the Club, and the issuance of any new summons, also be postponed.
In this Court the City does not object to that part of the judgment granting a writ of mandamus; nor does it object to the first of the two other conclusions, ordering the postponement of the hearing on summonses already served on the Club. Relying on art. 758 of the Code of Civil Procedure, however, the City asks that the judgment a quo be amended by striking out the reference to further informations and summonses.
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The difficulties between the parties go back several years, as may be clearly seen from a summary of the facts alleged in the petition.
(1) the Club has been opened for many years, and until April 30, 1963 the City had granted it the licence required by the municipal by-laws;
(2) in 1963 the City refused to renew the licence, and this gave rise to proceedings in mandamus which, through the fault of both parties, are still pending;
(3) since 1963, despite the lack of a licence, the Club has paid the City all the applicable taxes, surcharges and other assessments;
(4) from 1963 to 1970, despite the lack of a licence, the City did not prevent the Club from operating;
(5) however, between May 21 and September 21, 1970 about 137 summonses were served on the Club at the City’s request, for “operating” a business without holding the licence required by the by-laws.
Hence the proceedings now before this Court, proceedings which are still at the preliminary stage, namely the issuance of a writ of mandamus.
In the Superior Court the City failed to appear, and as noted above the judgment not only authorized that the writ be issued and served, but also made the following orders:
[TRANSLATION] ORDERS respondent to refrain from laying any further information against petitioner for alleged violations of by-law No. 2820 of the Municipal By-laws of respondent;
ORDERS the mise-en-cause, until final judgment shall be rendered in this matter, to postpone the hearing of any summons already served on petitioner by respondent, and the issuance of any new summons for the same purposes.
This judgment was unanimously upheld by the Court of Appeal. The three paragraphs which are relevant in the reasons of the Chief Justice may conveniently be cited here:
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[TRANSLATION] The City raised no objection in this Court to issuance of the writ. Its only objection was to the postponement order. Its only argument was that this order constituted an injunction to restrain legal proceedings contrary to art. 758 C.C.P.
First, this is not an injunction but a mandamus. It is established that, when a motion for evocation is made under art. 846 C.C.P., the Superior Court may order that proceedings in a lower court be suspended. I do not see why it cannot do so on a mandamus.
Moreover, in the case at bar I feel it was right in doing so. If the City had acted promptly on the mandamus proceedings which were instituted in 1963, the matter would have been decided long ago. It can still do so. In my view it would be unfair to subject Esquire in the meantime to a multiplicity of proceedings in the Municipal Court.
I have great hesitation in applying to this petition for mandamus the rules governing motions for evocation. I feel these are two different domains, particularly as it is difficult to apply such a comparison to proceedings not yet instituted, a matter which constitutes the only issue before us. The comparison would also lead us into an analysis of the meaning and scope of art. 758 C.C.P., and such an analysis does not seem to be called for in the circumstances.
Basically what the parties on both sides are anxious to avoid is being obliged to oppose each other in the Municipal Court before the merits of claims put forward by the Club have been finally determined in mandamus proceedings. In order to arrive at this result, while at the same time protecting the City against the effects of prescription, it is only necessary to vary the judgment a quo by ordering the mise-en-cause not to proceed, until final judgment is rendered herein, not only with the hearing of any summons already served on the Club for alleged violations of by-law 2820 of the City By-laws, but also with the hearing of any further summons that may be served on the Club at the instance of the City for the same purposes.
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In view of the circumstances no award will be made as to costs in this Court.
Judgment accordingly. No award as to costs.
Solicitors for the appellant: Côté, Péloquin, Normandin & Bouchard, Montréal.
Solicitors for the respondent: Ste-Marie & Giroux, Montreal.
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