Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 SCR 326

Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326

 

Les Immeubles Port Louis Ltée                                                        Appellant

 

v.

 

Corporation municipale du Village

de Lafontaine                                                                                                 Respondent

 

indexed as:  immeubles port louis ltée v. lafontaine (village)

 

File No.:  20942.

 

1990:  April 27; 1991:  February 28.

 

Present:  Lamer C.J.* and La Forest, L'Heureux‑Dubé, Sopinka and Gonthier JJ.

 

on appeal from the court of appeal for quebec

 

                   Municipal law ‑‑ Loan by‑laws ‑‑ Insufficiency of public notices convening electors ‑‑ Direct action in nullity ‑‑ Disputed by‑laws in effect for over five years ‑‑ Whether Superior Court had discretion to dismiss action for lateness ‑‑ If so, whether court validly exercised its jurisdiction -- Municipal Code, arts. 684a, 758 ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 33.

 

                   Civil procedure ‑‑ Direct action in nullity ‑‑ Disputed municipal by‑laws in effect for over five years ‑‑ Time within which remedy available ‑‑ Discretionary nature of remedy ‑‑ Code of Civil Procedure, R.S.Q., c. C‑25, art. 33.

 

                   Between 1969 and 1978 the respondent adopted loan by‑laws to defray certain local improvement costs.  Each of the by‑laws provided that part of the costs of certain work would be covered by a special tax on the owners of property in a given sector of the municipality.  In 1977 the appellant purchased land located in a sector affected by the loan by‑laws.  The contract of sale provided that the appellant undertook to pay general and special municipal taxes, including "all future instalments of special taxes, the payment whereof has been spread over a number of years".  In 1983 the appellant brought an action under art. 33 C.C.P. to quash the loan by‑laws and recover taxes wrongly paid for 1978 to 1983, arguing mainly that the respondent had not complied with the necessary formalities for adoption of these by‑laws.  Article 758 of the Municipal Code provided that in order to come into force and effect, a loan by‑law had to be approved by "the municipal electors who are owners of taxable immoveables" at a public meeting held on or before the thirtieth day after the date of the passing of the by‑law, and that such electors must have received a "notice of convocation of at least ten clear days".  The lots owned by the appellant were not even mentioned in most of the disputed notices of convocation.  The Superior Court dismissed the direct action in nullity for lateness.  The trial judge held that despite the thirty‑year prescription of the direct action in nullity, the Superior Court can exercise its discretion and refuse to intervene if the complainant has demonstrated a lack of diligence in making his complaint.  The judge concluded that the action was not brought within a reasonable time as the clause in the contract of sale and the payment of improvement taxes showed that the appellant had known of the by‑laws for over five years.  The Court of Appeal, in a majority judgment, affirmed the Superior Court judgment.

 

                   Held:  The appeal should be dismissed.

 

                   The adoption of the disputed by‑laws is not in accordance with the provisions of the Municipal Code.  Both before and after the 1979 legislative amendment, art. 684a empowered the respondent to impose a special tax on the appellant without assuming part of the cost, but the respondent did not comply with the requirements of art. 758 regarding public notices convening electors.  Most of the disputed notices did not indicate the appellant's immovable property as being among those to which the loan by‑laws applied.  The description contained in the notices was therefore clearly insufficient.  By not giving it notice of a meeting, the municipality denied the appellant its right to be heard and neglected to seek and obtain the approval required by law.  The group of owners of taxable immovable property was an essential part of the regulatory process.

 

                   The insufficiency of the public notices convening electors is a serious illegality relating to the municipality's failure to observe the formalities required by law.  This illegality involves observance of the audi alteram partem rule and the exercise of the appellant's voting right.  It is thus beyond question that the appellant could attack the validity of the loan by‑laws through a direct action in nullity, since this is neither a mere irregularity nor a formal defect.  However, apart from a case where there is a total absence of jurisdiction, a judge may refuse to grant the relief sought if, in view of the circumstances, he considers it justified to do so.  This discretionary power to grant or deny such a remedy is inherent in the reforming jurisdiction of the Superior Court pursuant to art. 33 C.C.P.  As the remedy is discretionary in nature, and despite the thirty‑year prescription provided for in art. 2242 C.C.L.C., the direct action in nullity must be brought within a reasonable time.  The requirement of a reasonable time is still present under common law principles in the exercise of this remedy.

 

                   A judge hearing a direct action in nullity must exercise his power of review in a judicial manner and observe the established principles of law.  He cannot act in a purely arbitrary manner.  In exercising his discretion, the judge must take into account a number of factors, including the nature of the disputed act and the nature of the illegality committed and its consequences.  He must also take into account the causes of the delay between the disputed act and the bringing of the action.  The nature of the right relied on and the plaintiff's behaviour are other factors relevant to the exercise of the Superior Court's discretionary power.  The plaintiff may be called on to justify his inaction so that the Superior Court can assess whether the delay in exercising his right was reasonable.

 

 

                   In this case the trial judge was right in exercising his discretion and dismissing the action in view of the circumstances and the relative importance of the nullity relied on.  The case did not involve a lack of jurisdiction or even a defect affecting the overall exercise by the respondent of its powers.  The matter was completely within the respondent's authority.  What was actually involved was rather a defect in the exercise of this power, the failure to give prior notice to certain persons.  These were the only persons affected, and in this sense the failure can be described as a relative nullity.  Finally, it was open to the trial judge in exercising his discretion to take the appellant's behaviour into account including its lack of diligence in exercising its rights.

 

Cases Cited

 

                   Referred to:  Commission de la santé et de la sécurité du travail du Québec v. Pillin, [1983] C.A. 277; Cité de Sillery v. Sun Oil Co., [1962] Que. Q.B. 914, aff'd [1964] S.C.R. 552; Comité de citoyens et d'action municipale de St‑Césaire Inc. v. Ville de St‑Césaire, [1985] C.S. 35, aff'd [1986] R.J.Q. 1061 (C.A.); City of Beaconsfield v. Bagosy (1974), [1982] J.M. 92; Trudeau v. Devost, [1942] S.C.R. 257; Dechène v. City of Montreal, [1894] A.C. 640; Shannon Realties, Ltd. v. Ville de St. Michel, [1924] A.C. 185; Donohue Bros. v. Corporation of the Parish of St. Etienne de La Malbaie, [1924] S.C.R. 511; Tremblay v. Corporation des Éboulements (1923), 35 Que. K.B. 474; Corporation de la paroisse de St‑Joseph de Maskinongé v. Boucher (1926), 41 Que. K.B. 359; Ville de La Tuque v. Desbiens (1919), 30 Que. K.B. 20; Abel Skiver Farm Corp. v. Town of Ste‑Foy, [1983] 1 S.C.R. 403; Montreal Light, Heat & Power Cons. v. City of Westmount, [1926] S.C.R. 515; Soeurs Dominicaines de l'Enfant‑Jésus v. Corporation de la paroisse de St‑Colomb‑de‑Sillery (1928), 45 Que. K.B. 101; Brown v. Corporation of the Village of Asbestos (1929), 67 C.S. 531; Thériault v. Corporation de la Paroisse de Notre‑Dame du Lac (1903), 9 R. de J. 326; Ville de Beaconsfield v. Brunet (1920), 31 Que. K.B. 196; Corporation de la Rivière du Gouffre v. Larouche (1925), 39 Que. K.B. 267; Corporation du village de St-Ulric de la Rivière Blanche v. Corporation du comté de Matane (1924), 38 Que. K.B. 247; Corporation de St‑Joseph de Beauce v. Lessard, [1954] Que. K.B. 475; Beauchamp v. Cité d'Outremont, [1970] C.A. 286; Air Canada v. City of Dorval, [1985] 1 S.C.R. 861; Town of St. Louis v. Citizens Light and Power Co. (1903), 13 Que. K.B. 19; Corporation municipale du Village de Ste‑Anne‑du‑Lac v. Hogue, [1959] S.C.R. 38; Gravel v. City of St‑Léonard, [1978] 1 S.C.R. 660; Théberge c. Métabetchouan (Town), [1987] 2 S.C.R. 746; Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512; Eaton v. St. James Assiniboia Community Committee, [1974] 2 W.W.R. 342; Boily v. Corporation de St‑Henri de Taillon (1920), 61 S.C.R. 40; Desy v. Corporation de St‑Constant (1923), 36 Que. K.B. 202; Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 607; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555; Côté v. Corporation of the County of Drummond, [1924] S.C.R. 186; Sidbec‑Dosco Inc. v. Commission de la santé et de la sécurité du travail du Québec, [1987] R.J.Q. 197; Québec (Procureur général) v. Giroux, [1988] R.J.Q. 1774; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Homex Realty and Development Co. v. Corporation of the Village of Wyoming, [1980] 2 S.C.R. 1011; Regina v. Aston University Senate, Ex parte Roffey, [1969] 2 Q.B. 538; Regina v. Herrod, Ex parte Leeds City District Council, [1976] Q.B. 540; The Queen v. Sheward (1880), 5 Q.B.D. 179, aff'd (1880), 9 Q.B.D. 741 (C.A.); Rex v. Glamorganshire Appeal Tribunal, Ex parte Fricker (1917), 33 T.L.R. 152; Rex v. Stafford Justices, Ex parte Stafford Corporation, [1940] 2 K.B. 33; Soeurs de Jeanne‑d'Arc v. Aqueduc de Sillery (1929), 47 Que. K.B. 235;  Samson v. Ville de St‑Bruno de Montarville, [1981] C.A. 193; Corporation municipale de la Cité de Sept‑Iles c. Rioux, [1985] C.A. 295; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.

 

Statutes and Regulations Cited

 

Act respecting Municipal Taxation, R.S.Q., c. F‑2.1 [formerly S.Q. 1979, c. 72], s. 3.

 

Cities and Towns Act, R.S.Q., c. C‑19, ss. 11, 397 et seq.

 

Civil Code of Lower Canada, art. 2242.

 

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 33, 453, 834 et seq.

 

Municipal Code, arts. 14, 684a [ad. 1963, c. 65, s. 8; am. 1968, c. 86, s. 38; repl. 1979, c. 36, s. 49], 758 [repl. 1963, c. 65, s. 10; am. 1975, c. 82, s. 35], 697 [am. 1946, c. 55, s. 14; 1950, c. 74, s. 11; 1979, c. 72, s. 291].

 

Municipal Code of Québec, R.S.Q., c. C‑27.1, arts. 689 et seq., 979.

 

Authors Cited

 

Brun, Henri et Guy Tremblay.  Droit constitutionnel, 2^e éd.  Cowansville, Qué.:  Éditions Yvon Blais Inc., 1990.

 

Chevrette, François et Herbert Marx.  Droit constitutionnel.  Montréal:  Presses de l'Université de Montréal, 1982.

 

de Smith, S. A.  Judicial Review of Administrative Action, 4th ed. By J. M. Evans.  London:  Stevens & Sons, 1980.

 

Dicey, Albert Venn.  Introduction to the Study of the Law of the Constitution.  London:  Macmillan, 1885.

 

Dussault, René and Louis Borgeat.  Administrative Law:  A Treatise, 2nd ed., vol. 4.  Translated by Donald Breen.  Toronto:  Carswells, 1990.

 

Evans, J. M. et al.  Administrative Law: Cases, Text, and Materials, 3rd ed.  Toronto:  Emond‑Montgomery, 1989.

 

L'Heureux, Jacques.  Droit municipal québécois, t. 2.  Montréal:  Wilson & Lafleur/SOREJ, 1984.

 

Le Dain, Gerald E.  "The Supervisory Jurisdiction in Quebec" (1957), 35 Can. Bar Rev. 788.

 

Pépin, Gilles et Yves Ouellette.  Principes de contentieux administratifs, 2^e éd.  Montréal:  Éditions Yvon Blais Inc., 1982.

 

Rousseau, Gilles.  "Aspects contentieux de la résolution et du règlement en droit municipal" (1986), 46 R. du B. 627.

 

Théroux, Patrick.  "La notion de délai raisonnable dans l'exercice d'un recours par voie d'action directe en nullité sous l'article 33 C.p.c.".  Dans Formation permanente du Barreau du Québec, Développements récents en droit administratif, vol. 2.  Cowansville, Qué.:  Éditions Yvon Blais Inc., 1989.

 

Wade, H. W. R.  Administrative Law, 6th ed. Oxford:  Clarendon Press, 1988.

 

                   APPEAL from a decision of the Quebec Court of Appeal, [1988] R.J.Q. 1239, 23 Q.A.C. 173, affirming a judgment of the Superior Court, J.E. 85‑474.  Appeal dismissed.

 

                   Jean‑Jacques Rainville and Mario St‑Pierre, for the appellant.

 

                   Stéphane Sansfaçon and Albert Prévost, for the respondent.

 

//Gonthier J.//

 

                   English version of the judgment of the Court delivered by

 

                   Gonthier J. -- This case concerns, first, the legal consequences of a municipal corporation's failure to give certain owners of lots affected the required notices of the adoption of loan by‑laws to cover local improvements, and second, the action in nullity under art. 33 of the Code of Civil Procedure, R.S.Q., c. C-25, the time in which it can be exercised and the discretion existing in this regard.

 

I -‑ Facts and Proceedings

 

                   Between 1969 and 1978 the respondent adopted various loan by‑laws to defray certain local improvement costs.  They concerned chiefly sewer, water supply and roadway work.  Each of the by‑laws provided that part of the costs of certain work would be covered by a special tax on the owners of property in a given sector of the municipality, including the appellant.

 

                   In 1977 the appellant purchased immovable property in the respondent's village.  This land was located in a sector affected by the loan by‑laws.  No building had been built or was served by the municipal water supply or sewer work which was the subject of the by‑laws.  The contract of sale contained the following clause:

 

                   The present Sale is thus made subject to the following terms and conditions, which the Purchaser binds and obliges itself to fulfil, namely:--

 

                                                                   . . .

 

2.  To pay all taxes and assessments affecting the said property, both municipal and school, general and special, and including all future instalments of special taxes, the payment whereof has been spread over a number of years, as and from the Thirtieth day of September, Nineteen Hundred and Seventy‑Seven.  [Emphasis added.]

 

                   Between 1978 and 1983 the appellant paid the basic municipal taxes and the additional taxes for local improvements.  The taxes in the latter category totalled $136,354.46.

 

                   In 1983 the appellant brought an action under art. 33 of the Code of Civil Procedure to quash the loan by‑laws and recover taxes wrongly paid for 1978 to 1983.  It argued mainly that the respondent had not complied with the necessary formalities for adoption of the said by‑laws.  It added that the respondent had abused its taxing powers and that it had paid the taxes for which it was claiming reimbursement by error of law and solely in reliance on the tax bills it had been sent.

 

                   In defence the respondent contended that the various loan by‑laws challenged by the appellant had been adopted for municipal infrastructure work affecting the appellant's property; that it had been aware of these facts for many years and had never objected; and that the notices given by the respondent concerning the by‑laws adopted were sufficient and the action was belated.

 

                   The Superior Court dismissed the action, J.E. 85-474, and its decision was affirmed by the Court of Appeal, [1988] R.J.Q. 1239.

 

II -‑ Applicable Legislation

 

                   The legislative provisions necessary to decide this case are arts. 684a (before and after the 1979 amendment) and 758 (before and after the 1975 amendment) of the Municipal Code as well as art. 33 of the Code of Civil Procedure.

 

Municipal Code

 

                   Article 684a determined the municipal council's power to impose a special tax to pay for municipal works.  Before the legislative amendment of 1979 it read as follows:

 

                   684a.  The council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable real estate subject to such tax.  In the case of lots that are situated at a street corner or are not rectangular, the council may fix the frontage for assessment purposes, taking into account both frontage and area.

 

                   The council may also charge the cost of such works either entirely to the corporation or to both the corporation and the ratepayers of one or more portions of the municipality, in the proportions determined by the by‑law.

 

After 1979 art. 684a (the substance of this provision is now contained in art. 979 of the Municipal Code of Québec, R.S.Q., c. C‑27.1) read as follows:

 

                   684a.  The council may impose the special tax for the payment of municipal works of any kind, including works of maintenance, according to either the municipal valuation or the area or the frontage of the taxable real estate subject to such tax.  In the case of lots that are situated at a street corner or are not rectangular, the council may fix the frontage for assessment purposes in the manner it deems appropriate.

 

                   The council may also charge the cost of such works either entirely to the corporation or to both the corporation and the ratepayers of one or more parts of the municipality or entirely to the ratepayers of one or more parts of the municipality, in the proportions determined by the by‑law.  [Emphasis added.]

 

                   Article 758 laid down procedures for making corporation loan by‑laws known to the public.  Until 1975 it provided:

 

                   758. 1.  Corporation loans, by a bond issue or otherwise, and issues of bonds, in payment or for aid, are effected only under a by‑law to that effect which, in order to come into force and effect, must be approved by the municipal electors who are owners of taxable immoveables, in accordance with this article, and subsequently authorized by the Minister of Municipal Affairs.

 

                   2.  A public meeting of the municipal electors who are owners of taxable immoveables shall be held after the passing of such by‑law, at the place, on the day and at the time fixed by the council for such purpose.

 

                   3.  Such meeting shall be held between seven and ten o'clock in the evening, on or before the thirtieth day after the date of the passing of the by‑law, after the secretary‑treasurer has given a notice of convocation of at least ten clear days.  [Emphasis added.]

 

In 1975 an amendment to art. 758 (An Act to amend the Municipal Code, S.Q. 1975, c. 82, s. 35) introduced para. 4, which read as follows:

 

                   4.  The public notice must mention:

 

                   a) the number, the title and the object of the by‑law and the date of its adoption by the council; in addition, when the by‑law imposes a special tax on the immovables of one sector or zone of the municipality, excluding all or some other zones or sectors, the notice must clearly describe the perimeter of such sector or zone, using, whenever possible, street names or road names or numbers, as the case may be;

 

Code of Civil Procedure

 

                   33.  Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature of Québec, and bodies politic and corporate within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

 

III -‑ Judgments of Courts Below

 

Superior Court

 

                   Michaud J. first noted that under the Municipal Code the action to annul a municipal by‑law for illegality is subject to a three‑month prescription, while the direct action in nullity under art. 33 of the Code of Civil Procedure is subject to the thirty‑year prescription of art. 2242 of the Civil Code of Lower Canada.

 

                   He observed that the appellant had brought the action over five years after the last disputed by‑law was adopted and had bought its property knowing of the special taxes, as indicated by the specific clause in the deed of sale.  Further, he pointed out that the appellant even wrote the municipality to ask how it could take better advantage of the municipal services.

 

                   The trial judge then said that despite the thirty‑year prescription of the direct action in nullity, the Superior Court can exercise its discretion and refuse to intervene if the complainant has demonstrated a lack of diligence in making his complaint.  After citing various authorities, in particular Commission de la santé et de la sécurité du travail du Québec v. Pillin, [1983] C.A. 277, Cité de Sillery v. Sun Oil Co., [1962] Que. Q.B. 914, aff'd [1964] S.C.R. 552, and Comité de citoyens et d'action municipale de St‑Césaire Inc. v. Ville de St‑Césaire, [1985] C.S. 35, aff'd [1986] R.J.Q. 1061 (C.A.), the judge concluded that the action in nullity must be brought within a reasonable time and that it was obviously late in the case at bar.  He added that granting annulment more than five years after the most recent by‑law had taken effect would compromise the stability of municipal finances.

 

                   In the view of the trial judge, the letters sent to the municipal corporation by the appellant, the clause in the contract of sale and the payment of improvement taxes tend to show that the appellant knew of the by‑laws long before it brought its action.  Consequently, the fact of waiting such a long time before taking action constitutes a tacit waiver of its right to object to the by‑laws.  He accordingly dismissed the action.

 

Court of Appeal

 

                   Lévesque J. (ad hoc)

 

                   Lévesque J. reduced the case to two issues which the Superior Court judge did not have to consider in depth (at p. 1240):

 

[translation]  1.  Are the disputed by‑laws ultra vires the Municipal Code or are they at least applicable to the appellant?

 

2.  Is the insufficiency of the public notices convening electors a sufficient ground for the Superior Court to intervene and quash the disputed by‑laws?

 

                   On the first point, Lévesque J. concluded that the by‑laws were authorized by art. 684a of the Municipal Code, not art. 697 as suggested by the appellant.  He said that the Municipal Council's discretionary power could not be reviewed in the absence of fraud or a serious breach of the law.  Lévesque J. added that the primary purpose of the immovable property was residential and that this had continued.  It was therefore reasonable for the municipal authorities to provide for an extension of services to the appellant's immovable property, and the latter would benefit from this.  The purpose of the work was reasonable, since it was to serve a sector in the more or less long term and also to be used in its development.

 

                   Ruling on the question of the sufficiency of the public notices, the judge cited City of Beaconsfield v. Bagosy (1974), [1982] J.M. 92, which recognized that insufficient notice is a good reason for setting aside a by‑law.  Lévesque J. stated that the insufficiency of the notices was not an absolute cause of nullity but a unique occurrence which might be the basis for the exercise of judicial discretion.

 

                   He noted that in the case at bar all the by‑laws had been adopted over five years before, the work done, the bonds issued and the taxes paid without protest.  Furthermore, the appellant had not given any reasons for its delay in bringing an action and the reference to taxes in the deed of sale constituted a presumption of knowledge.  He considered that the trial judge had correctly exercised his discretion and upheld his decision that the appellant had waived its right to raise the insufficiency of the notices.

 

                   Tyndale J.A.

 

                   Without ruling on the merits, Tyndale J.A. considered the action to be belated and like Lévesque J. dismissed the appeal.

 

                   Jacques J.A., dissenting

 

                   Jacques J.A. first mentioned that the statute requires that the notices describe the "owners of taxable immoveables" adequately; and the lots owned by the appellant are not mentioned in four of the disputed notices (by‑laws 96, 104, 117 and 135).  By‑law 70 cannot be given effect as the failure to hold a meeting within thirty days vitiated the proceeding.  In his opinion these illegalities were sufficient to shift the burden of proof to the respondent corporation.  The judge noted that City of Beaconsfield v. Bagosy, supra, had already established that a notice is a necessary prerequisite to the validity of a zoning by‑law, not merely an irregularity.  At page 1244, he wrote:

 

                   [translation]  I consider that the same is true regarding the imposition of a land tax on immovable property which has not been mentioned in the public notice to the municipal electors who own taxable immovable property.  In that case the by‑law is not enforceable with respect to the omitted immovable property, though it may be with respect to the property mentioned in the notice.

 

                   Jacques J.A. noted that the evidence accepted by the trial judge could not in any way suggest acquiescence, since there must be express or presumed knowledge of what is being acquiesced in.  Finally, he concluded that the delay was not excessive and did not constitute a tacit waiver, if it is compared with the five‑year time limit set by the legislature for prescription of the action to recover wrongly paid taxes.  Further, this delay causes no prejudice to the municipality, whose only obligation is to reimburse money it should not have collected.  He was thus of the view that the right to reimbursement of wrongly paid money took priority over the stability of municipal finances.

 

IV -‑ Issues

 

                   The issues may be summarized as follows:

 

1.Were the by‑laws adopted in accordance with the law?

 

(a)Does art. 684a empower the respondent to impose a special tax on the appellant without assuming part of the cost?

 

(b)Did the respondent comply with the legal requirements regarding the notices?

 

2.What are the legal consequences of the insufficiency of the public notices convening electors?

 

3.In view of the nature of the illegality committed, did the Superior Court have discretion to dismiss a direct action in nullity on the grounds that it was late?

 

4.If so, did the Superior Court validly exercise its discretion in the circumstances of this case?

 

                   I will examine the nature of the alleged defect and its legal consequences, namely whether it can be a basis for judicial review.  I will then discuss the nature of the remedy applicable in the circumstances.

 

V -‑ Analysis

 

A.  Were the Disputed By‑laws Adopted in Accordance with the Law?

 

                   1.  Article 684a of the Municipal Code

 

                   In the Court of Appeal the appellant raised an argument which it has since abandoned.  It claimed that the respondent's power to impose a special tax rested on art. 697 of the Municipal Code.  That article is more restrictive than art. 684a of the Municipal Code.  The Court of Appeal rejected this argument and in this Court the appellant admitted that the respondent was acting pursuant to art. 684a.  On this basis, it is now disputing the allocation of costs made by the corporation, which it says was not in accordance with the article.  In its submission, the provision does not allow the corporation to impose a special tax without assuming at least part of the financial burden.  The appellant relies on the legislative amendment of 1979, which added to the second paragraph that the costs could be charged "entirely to the ratepayers of one or more parts of the municipality", and on the legislature's silence on this point prior to the amendment.  It thus argues that at the time the disputed by‑laws were adopted the corporation had a duty to assume at least part of the financial burden.  Its argument assumes that the article is divided into two parts, the first dealing with the bases of taxation and the second with the way in which the cost is to be allocated.

 

                   This argument is no more valid than that made in the Court of Appeal.  Article 684a as it read before the 1979 amendment clearly authorizes in its first paragraph the imposition of a special tax and leaves open the choice of several bases of allocation:  the municipal valuation, the area and the frontage of the taxable real estate subject to the tax.  There is no mention at all of any contribution by the corporation.  This possibility is only referred to in the second paragraph, beginning with the words "The council may also charge the cost of such works . . .".  (Emphasis added.)  I do not agree with the way the appellant reads the provision or with the resulting division.  The article as a whole sets out the allocation of costs and the second paragraph, by the insertion of the word "also", confers additional powers in the matter.  The article first contemplates payment by the owners of immovable property, and second deals with the variations on this procedure.  The 1979 amendment merely clarified a power which the municipality already had under the first paragraph.  This argument is rejected.

 

                   2.  Lack of Notice to the Owners of Lots P‑215a and P‑237

 

                   The appellant argues that the respondent's loan by‑laws were adopted without compliance with the essential formalities provided for this purpose in the Act as regards notice, thereby denying the appellant its right to be heard.  For the first five by‑laws, namely by‑laws Nos. 70, 77, 96, 104 and 117, adopted between January 22, 1969 and July 31, 1975, the said formalities were contained at the time in art. 758 of the Municipal Code.  Paragraph 1 specified that the by‑law "in order to come into force and effect, must be approved by the municipal electors who are owners of taxable immoveables".  Such approval was to be given at a public meeting and, under para. 3, the meeting was to be held "on or before the thirtieth day after the date of the passing of the by‑law", and the electors were to have received "notice of convocation of at least ten clear days".  The Act accordingly provided that the group of owners of taxable immovable property was an essential part of the regulatory process.  The notice of convocation to the owners concerned was to allow them to have an opportunity to present their views at a meeting of owners held with the mayor present.  As to by‑law No. 135 adopted on May 23, 1978, the Council also had to comply with the conditions set out in art. 758(4), that is, provide a clear description of the area covered.

 

                   Most of the disputed public notices of convocation do not indicate the appellant's immovable property as being among those to which the loan by‑laws apply.  Like the judges of the Court of Appeal, I consider that the description contained in the public notices was clearly insufficient and did not meet the conditions of art. 758 of the Municipal Code.  The respondent breached its obligation to inform and hear the appellant when it adopted the by‑laws, thereby infringing the Act and the audi alteram partem rule.

 

B.  The Legal Consequences of the Insufficient Notices

 

                   The Council's jurisdiction is not at issue as such:  what is in question is an aspect of the exercise of its powers, namely failure to comply with a legal prerequisite, that of prior notice to the owners of certain affected lots.  Is this more than a mere irregularity, because it affects an important right, that of being informed and heard and being able to participate in a vote?  And since this right is attached to certain persons and affects them alone, can it be the subject of a waiver by them?

 

                   The answer to these questions is important because, as we shall see, it may determine the remedy available and consequently the procedure for obtaining the remedy to which it gives rise.  The decision to be made on the appeal turns on this.  For a proper understanding of the matter, one must first identify the principal possible infringements of the taxpayer's rights, their nature and the classification made of them by our courts, as well as the remedies which the taxpayer has obtained in each case.  It is important in this analysis to bear in mind the distinction between the right and the remedy, as was so aptly noted by de Smith in Judicial Review of Administrative Action (4th ed. 1980), at p. 422:

 

Whether the tribunal lacked jurisdiction is one question; whether the court, having regard to the applicant's conduct, ought in its discretion to set aside the proceedings is another.  The confused state of the present law is due largely to a failure to recognise that these are two separate questions.

 

                   1.  Illegalities:  Ultra Vires or Irregularities

 

                   First we may note that the case law classifies these infringements in terms of the remedies provided in our legislation, depending on whether it is a remedy to quash conferred by municipal legislation or one involving the superintending and reforming power of the superior courts.  Articles 689 et seq. of the Municipal Code of Québec, like arts. 397 et seq. of the Cities and Towns Act, provide a remedy to quash certain municipal acts for illegality and make it subject to a three‑month prescription.  Nevertheless, the courts have held that failure to exercise this remedy did not have the effect of removing all illegalities, and they have established categories of defects which come within the superintending power of the Superior Court.  In an article titled "Aspects contentieux de la résolution et du règlement en droit municipal" (1986), 46 R. du B. 627, Professor Gilles Rousseau makes a detailed study of the distinctions developed by the courts to penalize the most serious illegalities where the right to the special remedy has expired.  At page 651, he writes:

 

                   [translation]  Very quickly in the early part of the century the courts, after accepting that certain defects could be raised after the time limit, were consequently obliged to divide the illegalities and identify those which crossed the line and those which did not.  In this way an initial distinction was made between illegality, including formal defects and irregularities, and cases of ultra vires.

 

                   Our courts have admitted the direct action in nullity and the application for a declaratory judgment in matters of ultra vires.  With time, the availability of these remedies has been extended to certain defects which do not pertain to the lack of initial jurisdiction.  It has thus become more difficult to define the limits of the ultra vires concept.  The cases contain many refinements the meaning of which is not constant and varies with the context in which they are used, such as absolute or relative nullity, abuse and excess of power or simple illegalities, formal defects or irregularities.

 

                   At the outset, these distinctions between various types of illegality were used to decide on the proper remedy and make it possible to extend the deadline for objecting.  Professor Rousseau discusses the utility of the distinctions based on the nature of the illegality.  At pages 652‑53 of the article cited above, he notes:

 

                   [translation]  The importance which the courts attach to the distinction is bound up with the special seriousness of the ultra vires defect:  the general idea is that it justifies an expansion and extension of the objection.  The remedies available from general civil law, principally the action in nullity but also now the application for a declaratory judgment, may be used despite the existence of the special remedies to quash; they are still open regardless of whether the three‑month time limit assigned to them has expired; the possibility of invoking the nullity of a municipal decision as a defence or exception has sometimes been associated with ultra vires; according to certain recent decisions, the presence of excess of jurisdiction or ultra vires still allows the action in nullity to be brought any time during the thirty‑year period provided for by general civil law (art. 2242 C.C.), while if the disputed decision is instead affected by abuse of power, the court may exercise its discretion and dismiss the action even if it is within this time limit.  Finally, the conditions applicable to the plaintiff or concerning the interest required (art. 55 C.C.P.) are made more flexible:  ultra vires is a basis for the remedies exercised by the municipal taxpayers or electors under art. 33 C.C.P., even if they are not able to show special or discrete damage.

 

                   As to the means of objecting, the distinction between illegality and ultra vires has chiefly been used to uphold an objection for a formal defect within three months and to free from this limitation an action alleging ultra vires or lack of jurisdiction.

 

                   This diverse use of the concepts by the courts involves a confusion between the right and the remedy, which underlies the appellant's argument that since the case at bar concerns an absolute nullity, the Superior Court has no discretion to dismiss the action on the ground that it is late.

 

                   While it is true that some judges have distinguished between absolute and relative nullity, this was chiefly to enable serious illegalities to be penalized beyond the time limit and make challenges to mere formal defects and irregularities subject to a short prescription period.  None of the judgments cited by the appellant denies the court's discretion to dismiss the action, even when it is brought within the thirty‑year prescription period, if the court still considers that it is belated.

 

                   Let us look more closely at the case law, the classification it has made of infringements of taxpayers' rights and the consequences it has attached thereto.  "Illegality" is a generic term covering any act not in accordance with the law.  In Trudeau v. Devost, [1942] S.C.R. 257, Taschereau J. said at p. 265:  [translation] "An ultra vires resolution is illegal but an illegal resolution is not necessarily ultra vires."  In that case this Court held that the direct action in nullity was only available if the act was ultra vires At page 262, it said:

 

[translation]  The courts have unanimously held, and it is now well established, that in a case of illegality any taxpayer may have recourse to the special procedure provided by the law within the stipulated time limits, but that where ultra vires acts are concerned there is always the remedy under art. 50 of the Code of Civil Procedure to have the courts declare an absolute nullity.  The lack of jurisdiction brings about this absolute nullity . . .  Dechène v. City of Montreal, [1894] A.C. 640; Toronto Railway Co. v. Corp. of Toronto, [1904] A.C. 809; Shannon Realties Ltd. v. Ville de St-Michel, [1924] A.C. 185; Donohue Bros. v. La Malbaie, [1924] S.C.R. 511. [Emphasis in original.]

 

                   It was thus not enough to allege illegality, there also had to be proof of an ultra vires act for a party to be entitled to go beyond the special procedures provided for objections to the acts of municipal corporations.  In Dechène v. City of Montreal, [1894] A.C. 640, the Privy Council held that a motion to quash was the proper remedy and dismissed the direct action in nullity to penalize a mere illegality described as an irregularity.  Thirty years later, in Shannon Realties, Ltd. v. Ville de St. Michel, [1924] A.C. 185, the same court repeated this rule in affirming a judgment of this Court.  Use of the direct action in nullity was ruled out for challenges to valuations made on erroneous principles or by faulty methods because the law had created special mechanisms for challenges by way of appeal.  Lord Shaw noted at pp. 194‑95:

 

                   It follows that the appeal made to art. 50 of the Civil Procedure Code Act fails, not because a remedy has been refused but because the remedy expressly given and prohibitively fenced has been ignored.

 

                   On the other hand, Mignault J. in Donohue Bros. v. Corporation of the Parish of St. Etienne de La Malbaie, [1924] S.C.R. 511, concluded that there was excess of jurisdiction and a right to employ the direct action in nullity in respect of a valuation roll in which the corporation had valued machinery as an integral part of a mill contrary to what was prescribed by law.  Mignault J. took great care to distinguish this case from Shannon Realties, Ltd. v. Ville de St. Michel, supra, in which an over‑valuation did not give rise to an allegation of ultra vires.

 

                   The Court of Appeal applied this rule.  In Tremblay v. Corporation des Éboulements (1923), 35 Que. K.B. 474, Allard J.A. wrote at p. 479:

 

                   [translation]  It is now well‑settled law that in the case of an illegality which does not affect the council's jurisdiction, taxpayers who wish to complain of it must do so by an action to quash.

 

He thus endorsed the position of Sévigny J. of the Superior Court for Saguenay, who had said at trial:

 

                   [translation]  Whereas the superintending and reforming power given to the Superior Court over bodies politic and corporate applies only in cases of absolute nullity, ultra vires acts or acts which involve arbitrary, oppressive and improper decisions, and not to cases of illegality resulting from formal defects and irregularities, which can be corrected using the special procedure provided by law, where there is one;

 

                   In Corporation de la paroisse de St‑Joseph de Maskinongé v. Boucher (1926), 41 Que. K.B. 359, the court held that use of art. 50 of the Code of Civil Procedure (now art. 33) could only be allowed to invalidate an act subject to fundamental nullity.  The court accordingly dismissed the direct action as there was no proof that the act was arbitrary or oppressive.  At pages 361‑62, Rivard J.A. commented:

 

                   [translation]  The cases in which the Superior Court can exercise the superintending and reforming power over municipal corporations given to it by art. 50 are still under discussion.  This discussion will undoubtedly continue for some time, because it seems difficult to come up with an exact and precise rule:  there are too many competing elements which cause the solution to vary depending on the particular circumstances of each case.  There is no question that, in principle, the remedy exists in cases where a municipal council has acted in a matter which was not within its jurisdiction, when it has exceeded its powers or trenched upon a jurisdiction that was not its own.  However, when the question is whether an abuse of power should be treated like an excess of jurisdiction, the solution is less clear because various circumstances must be taken into consideration, and the same is true when the allegation is one of flagrant injustice, bordering on fraud and indicating bad faith.  In short, it seems that the furthest one can go is to say that the art. 50 remedy should be allowed when, because of a lack of jurisdiction, fraud, a flagrant defect amounting to an excess of jurisdiction or a clear breach of the law, the disputed act should be regarded as vitiated by a fundamental nullity.

 

                   Right from the first quarter of the century a precise definition of ultra vires has been difficult to formulate.  Lamothe C.J. set out certain principles in Ville de la Tuque v. Desbiens (1919), 30 Que. K.B. 20.  The municipality had committed a series of acts which the parties were trying to annul by the direct action under the Code of Civil Procedure.  The Chief Justice's statement of principle found at p. 21 has been repeatedly adopted by our courts:

 

[translation]  Two major principles have been stated in earlier decisions; they are the two beacons by which we must be guided:  In cases of absolute nullity it is always possible to resort to art. 50 C.C.P.  When the illegality results from formal defects and irregularities it is necessary to use the special procedure provided by law, if there is one.

 

                   It is not always easy to distinguish whether a disputed municipal act is absolutely void or simply voidable.  Sometimes this distinction is apparent:  at other times, it remains confused and obscure.  If a municipal council undertakes a business without having been expressly empowered to do so, there will be no hesitation in declaring that undertaking ultra vires.  If a municipal council does an act which is strictly speaking within the limits of its powers, but does that act in some way other than that prescribed by law, the distinctions commence.  The courts have often set aside municipal decisions perpetrating a manifest injustice against one or more taxpayers; the fact that the decision appears arbitrary, oppressive or improper may lead the courts to regard it as void ab initio.  The tendency in the decisions has been to regard a gross abuse of jurisdiction as amounting to an excess of jurisdiction.  The words "ultra vires" have thereby been given a wider meaning.

 

                   2.  Ultra Vires:  its Various Manifestations

 

                   It can thus be seen that, in municipal law, ultra vires refers to the most serious defects.  The expression means "outside the jurisdiction of" and may be synonymous with absolute nullity.  We must determine more exactly how the courts have treated grounds for intervention by the Superior Court through its superintending and reforming power, so as to distinguish lack, abuse and excess of jurisdiction and decide where the case at bar falls and how it can or should be disposed of.

 

(a) Lack of Jurisdiction

 

                   A municipality, which is a creature of statute, has only the powers expressly delegated to it or resulting directly from powers so delegated.  Acting otherwise goes to the very existence of the power, since the administrative authority has no jurisdiction to act as it is doing.  This lack of jurisdiction may relate to the subject‑matter, the territory or the person.  In municipal law, most examples of this situation occur in the field of taxation.

 

                   In Abel Skiver Farm Corp. v. Town of Ste‑Foy, [1983] 1 S.C.R. 403, this Court restated the rules to be followed in determining the proper remedy for an alleged illegality.  Taking into account the particular nature of the act, Beetz J. approached the question in the form of two assumptions.  If the municipality used an incorrect method or an erroneous rule of valuation, a taxpayer who refrains from using or neglects to use the expeditious and special procedures provided by law will not be able to challenge the valuation roll (see Shannon Realties, Ltd. v. Ville de St. Michel, supra).  If on the other hand it has valued a tax‑exempt item for taxation purposes, its action will then be regarded as ultra vires and without jurisdiction and can be challenged in the ordinary superior courts of law (see Donohue Bros. v. Corporation of the Parish of St. Etienne de La Malbaie, supra).  Having set forth these principles, Beetz J. considered the subject of the appeal.  As the action asked the Court to vacate the valuation and collection rolls in respect of the appellant's land, which had been valued as an ordinary immovable, whereas it should have been recognized as "land under cultivation" within the meaning of s. 523 of the Cities and Towns Act, he considered that the city had valued a tax‑exempt property and so committed an ultra vires act as it had no jurisdiction over property of this kind.

 

                   Montreal Light, Heat & Power Cons. v. City of Westmount, [1926] S.C.R. 515, applies the same rule.  The city of Westmount had sued a power company to recover municipal and school taxes.  In its defence the company alleged that the tax was illegal.  The city had included electric meters in valuing the company's property.  These meters were by their very nature tax‑exempt, since not only were they movable property, they were placed on subscribers' premises temporarily.  Though the taxpayer had neither challenged the valuation roll nor appealed pursuant to the Cities and Towns Act and the Education Act, the Court dismissed the action and vacated the roll in its entirety.  It was clearly beyond the corporation's jurisdiction to tax them.

 

                   In Soeurs Dominicaines de l'Enfant‑Jésus v. Corporation de la paroisse St‑Colomb‑de‑Sillery (1928), 45 Que. K.B. 101, a challenge was made to the taxation of property owned by a charitable institution and used to hospitalize retired priests when this type of immovable property was exempted by law.  The Court of Appeal distinguished among the appellants' allegations between grounds of simple illegality and ultra vires grounds.  Létourneau J.A. said at p. 111:

 

                   [translation]  Only one of the grounds of appeal can be allowed, namely ultra vires; the others cannot give rise to the action which was brought, as pursuant to art. 50 C.C.P.  In L'Oeuvre du Patronage de St‑Hyacinthe v. La Cité de St‑Hyacinthe, the situation was that of an estoppel based on the non‑performance of an essential formal prerequisite which was imposed by the statute itself:  the Patronage could only be subject to payment of the tax in question if it had first been given a bill for the cost of the work with supporting documentation, and this requirement had not been met.

 

                   In the case at bar, it must be recognized that the law (art. 693 Mun. C.) in principle exempts the properties of the appellant community, and this suffices for the court to say that, apart from the exception which we find in the provision, the corporation has no power to tax these properties.

 

                                                                   . . .

 

                   Apart from the exceptional case which I have already mentioned, the corporation lacks any authority or jurisdiction:  hence the ultra vires.

 

As the act alleged against the municipality was in the nature of a [translation] "fundamental nullity ab initio:  a total absence of power", the court concluded that the community was justified in bringing the direct action in nullity.

 

                   The rule is stated in Brown v. Corporation of the Village of Asbestos (1929), 67 C.S. 531.  In that case the corporation had taxed a worker living outside the municipality who only entered it to work.  The corporation had no jurisdiction over non‑residents and had committed an act which was clearly ultra vires and could be challenged at any time in the Superior Court.  White J. of the Superior Court said at p. 533 of his reasons:

 

                   It seems clear that if the part of the by‑law complained of is ultra vires it can be attacked before the Superior Court at any time by anyone having an interest therein.  It would be hard to believe that a by‑law which was beyond the power of a Corporation to enact would become legal if no one contested it within three months.

 

                   Lack of jurisdiction is the clearest form of ultra vires, but as the writers Pépin and Ouellette point out (Principes de contentieux administratifs (2nd ed. 1982), at p. 88), the courts have extended judicial review under general civil law by applying the concept of ultra vires not only to conditions which govern only the existence of the power to act but also those relating to the way in which that power is exercised.  Thus, although originally the administrative body had full powers over the subject‑matter, territory or person, actions committed in exercising that power could affect its jurisdiction.  This is when an act is said to be an abuse or excess of power.

 

(b) Abuse of Power

 

                   A municipality must exercise its powers in accordance with the purposes sought by the legislature.  It vitiates its acts and decisions if it abuses its discretionary power.  A municipal act committed for unreasonable or reprehensible purposes, or purposes not covered by legislation, is void.  This illegality results not from the breach of specific provisions but from limitations imposed by the courts on the discretionary power of government and affects the substance of the disputed decision, since it is the reasons for the act which must be assessed.  The courts will accordingly determine whether the act is fraudulent, discriminatory, unjust or affected by bad faith, in which case it will be treated as an abuse of power and clearly would not be covered by expiry of the three months allowed for the specific remedies.

 

                   In Thériault v. Corporation de la Paroisse de Notre‑Dame du Lac (1903), 9 R. de J. 326, a by‑law directed a property owner to contribute financially to the maintenance of a road when he did not benefit from it.  The Superior Court allowed the direct action in nullity and regarded the act as an abuse of power, since a great injustice had been committed against the plaintiff.

 

                   In Ville de Beaconsfield v. Brunet (1920), 31 Que. K.B. 196, the town had adopted a by‑law to abolish a road; it changed its mind and adopted another by‑law reinstating the same road.  The respondent challenged the latter by‑law by a direct action in nullity, alleging ultra vires.  Lamothe C.J. found there had been no ultra vires acts, since there was no indication of oppression.  The Chief Justice considered that this was simply a relative nullity and as the council acted within its powers, use of the direct action in nullity was denied.

 

                   In Corporation de la Rivière du Gouffre v. Larouche (1925), 39 Que. K.B. 267, Bernier J.A. expressed the opinion that minutes prepared, homologated and given effect on the same day without the required public notices was an abuse of power.  He allowed the direct action in nullity and stated, at p. 270, that the illegality was fatal:

 

                   [translation]  This is not a mere irregularity or even a mere illegality:  it is a fundamental abuse of the powers of a municipal council.

 

                   In Corporation du village de St‑Ulric de la Rivière Blanche v. Corporation du comté de Matane (1924), 38 Que. K.B. 247, we read at p. 252:

 

                   [translation]  On the determination of how far the Superior Court can go, the decisions of the courts seem to have varied depending on the particular circumstances.  It has been held that the Court had the right to intervene in the case of a flagrant and oppressive injustice, amounting to an abuse of authority such that it indicated bad faith and could be regarded as fraud and an excess of power; that is the furthest that it can go.

 

                   In Corporation de la paroisse St‑Joseph de Maskinongé v. Boucher, supra, the owners of immovable property assessed for the maintenance of a watercourse asked that the decision of the corporation be vacated.  The action was dismissed because the plaintiffs could not prove abuse of power.  The Court of Appeal held that in the absence of proof of a lack of jurisdiction, fraud, a flagrant defect amounting to fraud or a breach of the law, in short without proof of a fundamental nullity, there was no basis for use of the direct action.

 

                   Pratte J.A. applied this principle in Corporation de St‑Joseph de Beauce v. Lessard, [1954] Que. Q.B. 475.  Taxpayers complained of the corporation's hasty decision to build a bridge across the Chaudière River, and especially of the way the cost was allocated.  In the circumstances, the judge considered that as the corporation acted in good faith the allegation of ultra vires should be dismissed.  At page 478, he said:

 

                   [translation]  The scope of art. 50 C.C.P. has been so often explored that it would be superfluous to review the many cases to which it has given rise and which have determined its limits.  We need only recall that the courts have consistently held that an action under art. 50 C.C.P. is available against municipal proceedings in cases of excess of power, fraud and also when a breach of the law or an abuse of power amounting to fraud creates a flagrant injustice.

 

                   This passage was adopted by this Court in Cité de Sillery v. Sun Oil Co., supra, at p. 556, where Abbott J. reiterated that the burden of proving that the municipal authority acted for fraudulent purposes rests with those asking that its decision be set aside.  As the company had not discharged its burden, the direct action in nullity was dismissed.  The same rule was applied in Beauchamp v. Cité d'Outremont, [1970] C.A. 286, in which a taxpayer's action was dismissed because he had not been able to prove fraud.

 

(c)Serious Illegalities Which Are Not Mere Irregularities or Formal Defects

 

                   Other forms of illegality relied on in the courts deal with an organization's failure to observe the necessary formalities in exercising its powers.  The infringement cited by the appellant appears to be of this nature.

 

                   Under art. 14 of the Municipal Code no action, suit or proceeding founded upon form or upon the omission of any formality, even a mandatory one, in any act or proceeding relating to municipal matters may be entertained unless the form or omission has caused substantial injustice or the formality omitted is such that the omission invalidates, under the provisions of the Municipal Code, the proceedings or other municipal acts requiring such formality.  Section 11 of the Cities and Towns Act and s. 3 of the Act respecting Municipal Taxation, R.S.Q., c. F‑2.1, are to the same effect.  Nonetheless, these sections deal only with formal defects (see City of Beaconsfield v. Bagosy, supra).  In Droit municipal québécois (1984), t. 2, Professor Jacques L'Heureux states, at pp. 319‑20:

 

[translation]  According to the decided cases, when a formality is an essential condition for the validity of an act, its omission causes the act to be null and void without it being necessary to prove any damage.

 

                                                                   . . .

 

                   The notions of "essential formality" and "essential element" are still not well defined in the cases, however.  In fact it can be said that, generally speaking, the courts quash an act for a procedural irregularity when the purpose of the procedure has not been achieved.

 

                   The courts have established that illegalities which impair the substance of a proceeding or which affect a fundamental right are open to a broader challenge.  This Court ruled in Air Canada v. City of Dorval, [1985] 1 S.C.R. 861, on the importance of the publicity surrounding a regulatory act.  In that case the Court quashed a by‑law imposing a business tax and authorizing the council to set the rate by an ordinary resolution.  This procedure had allowed the city to delegate to itself a power it was only entitled to exercise in accordance with a strict publicity procedure.  This Court recognized that the subdelegation infringed a mandatory and substantive rule, since in setting the business tax the city used a method of adoption different from that provided by law.  It is in this sense that the city's act was characterized as ultra vires.  At page 874, the Court said:

 

The Council thus wrongfully used the Charter and the Act to authorize itself to do by way of resolution what it could only do by by‑law.  It delegated to itself the power to set the rate by way of resolution, whereas the Legislature had conferred this power on it with a requirement that it be exercised by a by‑law.  The Council of the City of Dorval in this way exceeded its jurisdiction, which provided a basis for remedy under art. 33 C.C.P.

 

                   Town of St. Louis v. Citizens Light and Power Co. (1903), 13 Que.  K.B. 19, was to the same effect.  A contract concluded pursuant to a resolution rather than a by‑law was regarded as null and void, since it lacked the valid consent of the corporation.  Lacoste C.J. considered that the precondition for valid exercise of the power had not been met and that this was not a mere formal defect.  Consequently, the act was absolutely null and void and there was no need to require proof of injustice resulting from the omission of essential formalities.  In the court's view, the failure to proceed in the required way resulted in absolute nullity of the resolution and the contract itself.

 

                   In Ville de La Tuque v. Desbiens, supra, a by‑law authorizing municipal work had been passed without the corporation having the money necessary to pay for it on hand.  This act was characterized as ultra vires and gave rise to a direct action in nullity.

 

                   Failure to obtain approval is often cited as a substantial illegality on the basis of which an act can be quashed.  In Corporation municipale du Village de Ste‑Anne‑du‑Lac v. Hogue, [1959] S.C.R. 38, the municipality had passed a resolution awarding a waterworks franchise but had failed to obtain the approval of a majority of the electors who were property‑owners and of the Lieutenant Governor in Council as required by law.  This failure to obtain the necessary approval was regarded as rendering the contract absolutely null and void.  In the opinion of Taschereau J., [translation] "The municipal council's act is absolutely null and void, and this can be pleaded by any of the parties concerned" (p. 40).  It can be seen that in his reasons he is very careful to distinguish a fundamental nullity from a simple failure to comply with formal requirements.  At page 42, he observes:

 

[translation]  This is not an objection to the form or a failure to comply with formal requirements, but rather an allegation of fundamental nullity, which the appellant was justified in relying on as a basis for refusing to recognize the legal existence of an exclusive franchise, without this proceeding having been previously quashed . . .  [Emphasis in original.]

 

                   In Gravel v. City of St‑Léonard, [1978] 1 S.C.R. 660, this Court held that a contract signed by the city was absolutely null and void because the approval of the Municipal Commission required by law had never been obtained.

 

                   In Théberge v. Métabetchouan (Town), [1987] 2 S.C.R. 746, this Court penalized the failure to observe the minimum fifteen‑day delay that must be allowed between the publication of notice of a poll and the vote as provided by the Cities and Towns Act.  The judges of the Superior Court and the Court of Appeal had dismissed the action, considering that the evidence disclosed no actual damage, no flagrant injustice and no trace of any excess of power.  Lamer J. rejected this reasoning because of the special provisions of the Act, and in particular of s. 335 of the Cities and Towns Act.  That section provides that no election shall be declared invalid simply by reason of non‑compliance with the provisions of the Act regarding delays, "unless it appear to the court that such non‑compliance may have affected the result of the election" (emphasis added).  Lamer J. concluded on the basis of the slim majority of votes obtained in the election that a few days more might have had a decisive effect on the election and that the formal defect was significant.  He concluded that the poll was invalid and declared the by‑law to be inoperative.  It may be noted that the action was brought promptly after the acts alleged.

 

                   Like lack of approval, insufficient or defective notice may impair the essential validity of an act and affect the rights which the legislature sought to protect.  Such illegalities are sufficiently serious to justify the exercise of the superintending and reforming power and an extension of the time for filing an objection.

 

                   The regulatory authority a corporation has is limited by certain statutory requirements, including the right to be heard.  This principle is set forth in Wiswell v. Metropolitan Corporation of Greater Winnipeg, [1965] S.C.R. 512.  This Court had to decide whether s. 206(5) of the Metropolitan Winnipeg Act, which provided for a separate remedy subject to a three‑month prescription, applied to the disputed act, namely a failure to observe the publicity rules in adopting a by‑law.  The appellants were asking the Court to invalidate an amendment to a zoning by‑law on the ground of insufficiency of the notices appearing in the columns of two newspapers, but never sent to the parties concerned as required by the Act.  Hall J. concluded that the municipal by‑law was absolutely void because individuals had not been given a real opportunity to be heard, and allowed the action for a declaratory judgment to go forward despite the fact that the special remedy had expired.  Citing certain commentary, he said at p. 524:

 

The law in this regard is stated by Rogers in The Law of Canadian Municipal Corporations, vol. 2, p. 893, as follows:

 

. . . if a by‑law is within the power of the council and remains unimpeached within the time limited, it is validated by the effluxion of time.

 

                   It must be stressed, however, that the curative effect of a failure to quash a by‑law is limited to by‑laws which are merely voidable and not void.  The courts have made a distinction between these two classes of illegal by‑laws.  A voidable by‑law is one that is defective for non‑observance or want of compliance with a statutory formality or an irregularity in the proceedings relating to its passing and is therefore liable to be quashed whereas a void by‑law is one that is beyond the competence to enact either because of complete lack of power to legislate upon the subject matter or because of a non‑compliance with a prerequisite to its passing.

 

                   Even if the by‑law was voidable only as argued by the respondent, I do not think that s. 206 of The Metropolitan Winnipeg Act, supra, would bar the action for a declaratory judgment declaring the by‑law invalid.

 

                   In Eaton v. St. James Assiniboia Community Committee, [1974] 2 W.W.R. 342, the Manitoba Court of Queen's Bench held that the by‑law was voidable only because the appellant had not proven that the procedural irregularities made it void.  The court noted that the particular remedy did not cover the invalid by‑law and that if the latter had been void because of failure to observe the prerequisites to its passing, it would have been inoperative.

 

                   In City of Beaconsfield v. Bagosy, supra, the Quebec Court of Appeal clearly established that public notices sent to affected owners must be sufficiently detailed to enable persons covered by the by‑law to know how their rights will be affected.  In his reasons, Bélanger J.A. wrote at p. 95:

 

[translation] In my opinion, such a notice ought to have contained sufficient information for the persons affected to be aware that it was addressed to them:  while it was not necessary to reproduce the entire amending by‑law, it was essential that the group of owners who had rights to preserve be identified at least by the territory covered by the by‑law and that the nature of the amendment, and thus the purpose of the by‑law, be indicated.

 

In the opinion of the judges of the Court of Appeal, such insufficiency in the notices amounted to an absence of notice and made the by‑law invalid.

 

                   In 1920 this Court also invalidated a by‑law which had not been preceded by a valid notice of motion in accordance with a provision of the Municipal Code of the time (Boily v. Corporation de St‑Henri de Taillon (1920), 61 S.C.R. 40).

 

                   In Desy v. Corporation de St‑Constant (1923), 36 Que. K.B. 202, the irregularity of a notice was urged as a basis for vacating a by‑law.  Allard J.A. pointed out that the taxpayer had nonetheless been informed and that there was no reason to regard the act as ultra vires.  The court accordingly dismissed the action.

 

3.  Nature of the Illegality Committed by the Corporation

 

                   In all these cases, the characterization of the nullity is considered and dealt with solely to determine whether the disputed act gives rise only to the special statutory remedy subject to a short prescription period or also to the superintending and reforming power of the Superior Court.  It is clear that if the act is regarded as ultra vires the corporation, the direct action in nullity is admissible.  Nonetheless, the appellant submits that another distinction should be made in the type of nullity sought, but this time to deny the Superior Court its discretionary power to dismiss the action on account of the plaintiff's behaviour.  It argues that the nature of the acts committed by the corporation does not allow the Superior Court to do anything but find an absolute nullity to exist.

 

                   This argument ignores, first, the distinction that must be made between the right and the remedy, and second, the nature of the direct action in nullity, which like the prerogative writs comes within the inherent superintending and reforming power of the Superior Court the exercise of which is by its very nature discretionary.  The Quebec cases have always referred to art. 33 of the Code of Civil Procedure but the remedy has its origin in the common law and in the inherent powers of the superior courts.

 

                   It is true that the appellant was denied its right to be heard and that by not giving it notice of a meeting, the council neglected to seek and to obtain the approval required by law, namely that of certain "electors who are owners of taxable immoveables", including the appellant's principals.  It is also beyond question that the appellant could rely on the invalidity of the loan by‑laws through a direct action in nullity, since this is neither a mere irregularity nor a formal defect.  The illegality alleged involves observance of the audi alteram partem rule and the exercise of the appellant's voting right.  At first sight, the appellant was entitled to the remedy provided by the direct action in nullity.  However, the insufficiency of the notice does not result in a complete absence of jurisdiction:  rather, it brings into question a special requirement attached to the exercise by the corporation of its powers.  Further, the said notice was insufficient only with regard to certain persons, and in its action the appellant is only asking that the by‑laws be invalidated as to itself.  The issue is not one of a total absence of notice or approval.  The right to sufficient notice attaches only to the persons whom it benefits.  In this context, it is important to distinguish between the right that is infringed and the remedial power relied on.

 

                   Saying that the direct action in nullity is available does not in every case mean that the plaintiff has thirty years to object.  The thirty‑year prescription of the direct action in nullity applies to the action at law, to the procedural conduit, while the discretionary power is inherent in the reforming jurisdiction of the Superior Court pursuant to art. 33 of the Code of Civil Procedure.  It is the nature of this reforming power that must now be examined.

 

C.  The Action in Nullity Under Article 33 of the Code of Civil Procedure

 

1.  Origin of the Direct Action in Nullity

 

                   In Quebec, art. 33 of the Code of Civil Procedure confirms the Superior Court's power of judicial review and codifies the direct action in nullity against acts of the government and the administration.  Professors Dussault and Borgeat (Administrative Law:  A Treatise (2nd ed. 1990), vol. 4), describe the direct action in nullity as follows, at p. 391:

 

                   A direct action in nullity, or action to quash, exercised before  the Superior Court is unique to Quebec and issues from the "codification", in article 33 of the Code of Civil Procedure, of that Court's superintending and reform powers over the courts and inferior [bodies] under the jurisdiction of the Legislature of Quebec.

 

                   However, this legislative provision is only one of the several ways in which the superintending and reforming power of the superior courts is exercised.  Extraordinary remedies (arts. 834 et seq. of the Code of Civil Procedure) and the motion for a declaratory judgment (arts. 453 et seq. of the Code of Civil Procedure) also enable the superior courts to review the acts of government and administrative authorities.  The courts and certain writers have also recognized that the direct action did not result from the codification but existed through the common law well before its entry into the Code.  Professor Patrick Théroux, in an article titled "La notion de délai raisonnable dans l'exercice d'un recours par voie d'action directe en nullité sous l'article 33 C.p.c.", in Formation permanente du Barreau du Québec, Développements récents en droit administratif (1989), vol. 2, writes at p. 173:

 

                   [translation]  However, despite these important distinctions relating to the way in which the action should be brought, we should not lose sight of the fact that the very basis of the direct action in nullity is substantially the same as that of extraordinary remedies for the Code, namely that its essential purpose is to give effect to the Superior Court's superintending and reforming power.

 

                   Professor Gerald Le Dain, subsequently a judge of this Court, noted in "The Supervisory Jurisdiction in Quebec" (1957), 35 Can. Bar Rev. 788, at p. 796:

 

. . .  despite the extent to which the general jurisdiction and procedure have been codified, there is a common law of judicial control in Quebec which continues to be an important source of principles and rules.

 

                   In Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 607, Fauteux J. traced the development of the traditional power that devolved on the superior courts.  At pages 615‑18, he said the following:

 

                   [translation]  On the day it was created in 1849, the Superior Court acquired full trial level civil jurisdiction, and in particular the superintending jurisdiction, until then exercised by the Court of Queen's Bench:  cf 12 Victoria, c. 38, s. VII.  At the same time, it was provided that the prerogative writs concerned in the exercise of this supervisory jurisdiction would henceforth be issued by the Superior Court:  cf 12 Victoria, c. 41, s. XVI.  The Superior Court thus inherited the supervisory power based on the common law exercised in England by the Court of King's Bench, on which the [Quebec] Court of King's Bench was modelled.  This law dealing with judicial review of courts and bodies politic or corporate exercising judicial or quasi‑judicial powers comes to us from the English public law introduced into Quebec at the time and by reason of the Conquest.  Reference is made to this supervisory jurisdiction exercised in England by the Court of B.R. (Banco Regis) in Groenvelt v. Burwell.

 

                                                                   . . .

 

In 1957 the Quebec Legislature, by 5‑6 Elizabeth II, c. 15, s. 1, amended art. 50 C.C.P. -- reproduced in art. 33 of the new Code -- to expressly state that the Superior Court's superintending and reforming power over the lower courts would be limited to courts within the jurisdiction of the Quebec Legislature.  A legislature is presumed to legislate within the limits of its jurisdiction.  The Quebec Legislature does not have jurisdiction to amend, and there is no indication that by this 1957 amendment it intended to amend, the superintending and reforming power exercised by the Superior Court since before Confederation, as a consequence of both its enabling Act and the powers inherent in its function, over bodies which are now within the jurisdiction of Parliament and which perform a judicial or quasi‑judicial function in the affairs of the province and render decisions which are enforceable there.  [Emphasis in original.]

 

                   The principle that public authorities are subordinate to the supervisory power of the superior courts is the cornerstone of the Canadian and Quebec system of administrative law.  Such judicial review is a necessary consequence of the rule of law as identified by Dicey in 1885 in his work Introduction to the Study of the Law of the Constitution.  This principle is firmly rooted in the common law and is the source of the very foundations of the British system, on which our own is based.  Dicey saw the rule of law as having three meanings:  first, acts of the government are governed by ordinary law, as opposed to arbitrariness and wide discretionary authority; second, everyone is equal before the law; and third, everyone is amenable to the jurisdiction of the ordinary courts.  These rules basically mean that the exercise of governmental authority must be controlled, and as a corollary, that the individual must have the appropriate remedies to protect himself against arbitrary action.  In our legal and political system, judicial review of administrative action by the courts of law is based on these principles (see Brun and Tremblay, Droit constitutionnel (2nd ed. 1990), at pp. 626 et seq.; Chevrette and Marx, Droit constitutionnel (1982), at pp. 33 et seq.).

 

                   The Superior Court has acquired a supervisory jurisdiction inherited from the common law; and despite the codification of this power in the Code of Civil Procedure, the principles developed in this area both in England and in the other Canadian provinces remain.  In Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638, Pratte J. wrote at p. 651:

 

                   This supervisory power of the superior courts over inferior tribunals was not exercised by means of an appellate procedure but rather through writs of prerogative like mandamus, prohibition and certiorari.  The action in nullity or declaratory action was also recognized both in England and here as a proper procedure for the exercise of the control power . . . .

 

                   In Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555, Pigeon J. stated that a litigant who meets all the conditions for arts. 834 et seq. and art. 33 of the Code of Civil Procedure to apply may choose between these two procedural routes.  He added that the Superior Court's supervisory power was not created by the codification of the articles and that the distinction between the two remedies is purely procedural.  The Superior Court is asked to exercise its superintending and reforming power.  The procedural vehicle for the exercise of the right may vary but in both cases the Superior Court's inherent power is the basis for the remedy.

 

2.  Discretionary Nature of Remedy

 

                   The appellant argues that in a matter involving absolute nullity, the judge hearing the case has no discretion since his role is limited to finding that a nullity exists.  It adds that discretion exists only where there is an abuse of power.  Such an assertion fails to appreciate the bases of the superintending and reforming power and underestimates the essentially discretionary nature of the exercise by the Superior Court of its power.  In response to this argument I would cite the following passage from Wade (Administrative Law (6th ed. 1988), at pp. 695‑96):

 

                   When the remedy lies ex debito justitiae, as in these cases, this means that the court will normally exercise its discretion in the applicant's favour; it does not mean that the court has no discretion to withhold the remedy, for example, where there has been undue delay.

 

                   Like certiorari, the direct action in nullity derives from an essentially discretionary power.  It was originally used to control abuses of power by the lower courts.  Professor Wade considers that there is no doubt that judicial review of government acts is first and foremost discretionary.  He writes, at p. 709 of the aforementioned volume:

 

                   Such a discretionary power may make inroads upon the rule of law, and must therefore be exercised with the greatest care.  In any normal case the remedy accompanies the right.  But the fact that a person aggrieved is entitled to certiorari ex debito justitiae does not alter the fact that the court has power to exercise its discretion against him, as it may in the case of any discretionary remedy.  This means that he may have to submit to some administrative act which is ex hypothesi unlawful.  For, as has been observed earlier, a void act is in effect a valid act if the court will not grant relief against it.

 

                   According to the case law, the remedy is subject to the thirty‑year prescription applicable to any court action, subject to special rights of action.  Nevertheless, in Côté v. Corporation of the County of Drummond, [1924] S.C.R. 186, Anglin J. noted, at p. 188:

 

It may be that the remedy under [art. 33 C.C.P.] is so special and extraordinary that the granting of it is a matter of sound judicial discretion and that in certain cases it should not be accorded where there has been great delay, though short of thirty years, in bringing action.

 

In that decision, Mignault J. concluded with these observations (at pp. 191‑92):

 

                   [translation]  I hasten to add, however, that while it cannot be said with respect to the action in nullity in the Superior Court that there is any other prescription strictly speaking than that of the general civil law, namely thirty years, the Superior Court, exercising an extraordinary jurisdiction under art. [33 C.C.P.], the appropriateness of which is left to its discretion, may very well refuse to intervene when too long a delay has been allowed to elapse before the application is made to have a municipal act set aside.  (See the dictum of Andrews J. in Thériault v. Notre‑Dame‑du‑Lac.)  Without dealing with the distinction made by the courts of the province of Quebec between the action for irregularities in the Circuit Court and the action in nullity in the Superior Court, which I discussed in my dissenting opinion in Ville Saint‑Michel v. Shannon Realties, Limited, I see nothing to prevent the Superior Court from taking into consideration the fact that the plaintiff had a readily available remedy by appeal or action in the Circuit Court or Magistrate's Court and did not make use of this.  I am not saying that this circumstance is decisive, but when as in the case at bar it is complicated by a long and completely unexplained delay since the municipal act was given effect, I consider that the Superior Court may very well refuse to exercise its superintending and reforming authority.  [Emphasis added.]

 

                   As I have already had occasion to say in commenting on these observations of Mignault J., in Sidbec‑Dosco Inc. v. Commission de la santé et de la sécurité du travail du Québec, [1987] R.J.Q. 197, at p. 200:

 

                   [translation]  It can thus be seen that although he makes a distinction between an irregularity giving rise only to a remedy in the Circuit Court and a nullity which also gives rise to an action in the Superior Court, he makes no distinction as regards the discretion enjoyed by the Superior Court to exercise or not exercise its superintending and reforming power.

 

                   The Quebec Court of Appeal has recognized the exercise of a discretion on grounds of delay in proceedings involving supervision of the administrative tribunals.  Reference may be made in this regard to Commission de la santé et de la sécurité du travail du Québec v. Pillin, supra, and to Québec (Procureur général) v. Giroux, [1988] R.J.Q. 1774.  The latter case concerned a direct action in nullity against a decision of the Commission des affaires sociales.  The action was brought in March 1984 and the disputed decision was dated December 1, 1981.  The Court of Appeal described the 27‑month delay as unreasonable and dismissed the action on this ground.  Meyer J. (ad hoc) explained that the distinction between absolute and relative nullity has its place in municipal law, but that if the direct action is only a substitute for the writ of evocation, all challenges must be subject to the rule of a reasonable time limit.  At pages 1776-77, he wrote:

 

                   [translation]  The respondent raises the question of absolute as opposed to relative nullity and argues that the case at bar involves an absolute nullity, and so it is only the thirty‑year prescription that should apply and no concept of reasonable delay is relevant.  However, I feel with respect that he is confusing the concepts which are relevant in the case of a direct action in nullity challenging a municipal by‑law, for example, and a direct action in nullity which is only a substitute for a writ of evocation and which is challenging the decision of an administrative tribunal.  In the case of by‑laws which are challenged for nullity, the concept of absolute nullity really has its place, but mistake of law by an inferior tribunal in a decision that affects only the parties to that decision is certainly not the same thing.  Moreover, all the case law cited by the respondent relates to by‑laws.

 

                   On the basis of these observations the appellant argues that the nature of a direct action in nullity in a by‑law proceeding is distinct from the prerogative writs and that there is no reason to apply the decisions rendered on art. 33 of the Code of Civil Procedure against quasi‑judicial decisions.  It is true that the requirement of a reasonable time is expressly provided for in the Code of Civil Procedure with respect to extraordinary remedies.  Nevertheless, under common law principles this requirement is still present in the exercise of the direct action in nullity.  I do not understand the comments of Meyer J. as meaning that the direct action to invalidate a municipal by‑law should not be brought promptly.  The distinction he discusses is relevant to the choice of remedy, but does not defeat the discretionary nature of the court's power.  It is quite natural in determining the nature of the illegality to confine oneself to decisions rendered on municipal law, but in discussion of the discretionary power and its application all decisions rendered are relevant.  It is the same power which is being exercised and the discretion is still present.

 

                   It is precisely because they are discretionary that actions for judicial review must be promptly prosecuted (see Dussault and Borgeat, op. cit., at p. 468; Evans et al., Administrative Law:  Cases, Text, and Materials (3rd ed. 1989), at pp. 1074‑78).  The judge may also examine the behaviour of the parties and the existence of alternative remedies, and dismiss the action without even taking a decision on the merits.  This is what emerges from two decisions of this Court, Harelkin v. University of Regina, [1979] 2 S.C.R. 561, and Homex Realty and Development Co. v. Corporation of the Village of Wyoming, [1980] 2 S.C.R. 1011.

 

                   In Harelkin, Beetz J. speaking for the majority reaffirmed the discretionary nature of the prerogative writs.  A student had been required to leave the social work faculty of his university.  His appeal to the university council committee had been dismissed without his being heard.  He then applied for certiorari and mandamus, rather than using the procedure of appeal to the university senate committee.  The trial judge granted certiorari and ordered the institution to hold a hearing.  The Court of Appeal reversed the decision on the ground that a right of appeal existed and there were no special circumstances to justify granting the applicant a writ.  The student appealed to this Court, arguing that the council committee's failure to respect the audi alteram partem rule was akin to a jurisdictional error and that the writ ought to have been issued ex debito justitiae.  This Court upheld the position of the Court of Appeal, and Beetz J. said at pp. 575‑76:

 

                   Over the years, the courts have elaborated various criteria which provide guidance as to how discretion should be exercised.  In the process, the area of discretion has been more or less reduced depending on the circumstances of each case.  In some cases, particularly those involving lack of jurisdiction, courts have gone as far as to say that certiorari should issue ex debito justitiae.  And, on the more than dubious assumption that cases involving a denial of natural justice could be equated with those involving a lack of jurisdiction, it has also been said that certiorari should issue ex debito justitiae where there was a denial of natural justice.

 

                   The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate.  It is based on a contradiction and imports a great deal of confusion into the law.

 

                   Ex debito justitiae literally means "as of right", by opposition to "as of grace" (P. G. Osborne, A Concise Law Dictionary, 5th ed.; Black's Law Dictionary, 4th ed.); a writ cannot at once be a writ of grace and a writ of right.  To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal.  But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction.

 

                   A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice.

 

                   In Homex, an owner concluded an agreement with the village that he would provide all the financial requirements for work and services on his property.  Even before these services were installed, the owner sold his land to the Homex company.  The latter did not want to assume the obligations undertaken by the preceding owner and challenged them.  Without notice to the company, the corporation adopted a by‑law under which the land bought by the company was not deemed to be the subject of the subdivision plans registered.  The latter submitted an application for judicial review and, while this application was pending, checkerboarded its lots.  This Court considered that the company had a right to be heard and that it had not been given this opportunity.  Ruling on the right to relief, namely the quashing of the by‑law, in light of the circumstances the majority found that the company had lost this right by its conduct.  The Court held, per Estey J. at pp. 1034‑35:

 

                   I recognize that there has been some criticism of this exercise of judicial discretion to deny the remedy, which criticism has generally viewed the discretion as an attempt by a court to apply or impose its own code of morality.  This observation, however, denies or overlooks the very history of certiorari, an extraordinary and discretionary remedy coming down to present day courts from ancient times.  To say that the writ is universally available where the rights of an individual are adversely affected by action of some public authorities taken in excess of jurisdiction, or in some circumstances where an error of law has been committed in the course of the exercise of its jurisdiction, is not to say that the reviewing tribunal must slavishly apply the rules surrounding the issuance of certiorari and automatically respond to the application of the person affected without any further scrutiny.  The principles upon which certiorari, and now the modern order in judicial review, have been issued have long included the principle of disentitlement where a court, because of the conduct of the applicant, will decline the grant of the discretionary remedy.  [Emphasis added.]

 

                   As England is the source of the common law principles it is worth recalling various judgments which had to do particularly with the discretionary power of a judge hearing an application for a prerogative writ.  Thus, in Regina v. Aston University Senate, Ex parte Roffey, [1969] 2 Q.B. 538, a by‑law provided that students who had failed in certain examinations could be required to withdraw from their studies or re‑sit all the examinations.  When certain students failed, the university authorities required them to withdraw from their courses without even holding a hearing.  The students applied for a writ of certiorari to quash the decision and a writ of mandamus to require the university to determine in accordance with the law whether they should be allowed to re‑sit the examinations or be asked to withdraw.  The court came to the conclusion that the university authorities had infringed the rules of natural justice, but that as the prerogative writs were discretionary remedies they should not be made available to those who had slept on their rights.  In the circumstances, the applicants by their inaction had forfeited their claim to relief.  Donaldson J. wrote, at p. 555:

 

                   In this situation I regard the time factor as decisive.  The prerogative remedies are exceptional in their nature and should not be made available to those who sleep upon their rights.

 

                   In Regina v. Herrod, Ex parte Leeds City District Council, [1976] Q.B. 540, three cases were before the Court of Appeal.  In the Greenwich case, two partners had attempted to acquire a site and planned to convert it into a public bingo hall.  The partners applied for a zoning permit and permission to set up the bingo hall and their request was denied.  They appealed to the Minister on the zoning by‑law and to the Crown Court for permission to set up the bingo hall.  They won in both cases and bought the land they needed.  It was not until five and a half months later that the city of Greenwich applied for certiorari.  The Court of Appeal dismissed the entire matter because of the excessive delay.  Lord Denning M.R. held that delay in exercising a remedy is of critical importance and has its effect on the court's discretion.  He cited The Queen v. Sheward (1880), 5 Q.B.D. 179, aff'd (1880), 9 Q.B.D. 741 (C.A.), and Rex v. Glamorganshire Appeal Tribunal, Ex parte Fricker (1917), 33 T.L.R. 152 (K.B.), and he wrote, at p. 557:

 

If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court -- or any other inferior tribunal for that matter -- he should act promptly and before the other party has taken any step on the faith of the decision.  Else he may find that the High Court will refuse him a remedy.  If he has been guilty of any delay at all, it is for him to get over it and not for the other side.

 

Shaw L.J., on the other hand, wrote at p. 574:

 

                   An applicant for a prerogative order (or, in earlier history, a prerogative writ) is not in the position of a litigant who seeks to assert some right to which he claims he is entitled.  He is rather a suppliant who seeks to invoke those remedial measures on the ground that the High Court would wish to correct some irregularity in the administration of justice which has caused him to be aggrieved so that justice may be done.  Whether the order sought will be granted or refused is a matter wholly within the court's discretion; prerogative orders are not to be claimed as of right.

 

                   Lord Denning also cited in support of his opinion Rex v. Stafford Justices, Ex parte Stafford Corporation, [1940] 2 K.B. 33 (C.A.).  In that case the Corporation of Stafford was challenging the validity of the procedure used to reroute a motorway, when preliminary conditions had not been observed.  Sir Wilfrid Greene M.R. considered that the applicant's actions and the delay were relevant considerations in denying the remedy.  He wrote, at p. 43:

 

                   Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion.  It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justiti{ae} to his order.  That merely means this, in my judgment, that the Court in such circumstances will exercise its discretion by granting the relief.  In all discretionary remedies it is well known and settled that in certain circumstances -- I will not say in all of them, but in a great many of them -- the Court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a judge at a trial refuses to do so, then the Court of Appeal will set the matter right.  But when once it is established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion.

 

                   In municipal law and with respect to the direct action in nullity, reliance has been placed primarily on the plaintiff's duty of diligence in proceedings involving abuse of power.  In Soeurs de Jeanne-d'Arc v. Aqueduc de Sillery (1929), 47 Que. K.B. 235, the Court of King's Bench upheld a judgment rendered by the Superior Court allowing an action to recover money for  waterworks service at the appellants' convent.  The community argued that the water rate set by municipal by‑law was excessive, discriminatory and wrongful.  Cannon J.A. expressed the view that a [translation] "considerable lapse of time" can justify a refusal by the courts to intervene.

 

                   In Comité de citoyens et d'action municipale de St‑Césaire Inc. v. Ville de St‑Césaire, supra, Turmel J. dismissed the direct action in nullity on account of the considerable delay between the acts complained of and the bringing of the action.

 

                   In Samson v. Ville de St‑Bruno de Montarville, [1981] C.A. 193, a direct action in nullity brought against a zoning by‑law was dismissed for lateness.  The appellants in that case challenged on the ground of abuse of power the legality of a zoning by‑law which they said was a disguised expropriation of their property.  Their action in nullity brought over thirteen years after adoption of the by‑law was dismissed because it was late and they were unable to show sufficient reasons for this long delay.  The court concluded that the lack of jurisdiction had not been proven and that the trial judge was justified in exercising his discretion to deny exercise of the remedy on account of the excessive delay.

 

                    In Corporation municipale de la Cité de Sept‑Iles c. Rioux, [1985] C.A. 295, the by‑laws challenged by a direct action in nullity prohibited the presence or occupancy of a mobile home anywhere in the territory of the corporation, except on certain land owned by it.  The regulation was held to be discriminatory and the action allowed, despite the seven‑year lapse of time.  The importance of the invasion of a right took priority over the delay.  Chouinard J.A. said the following for the court, at pp. 299‑300:

 

[translation]  The appellant cited the judgment of this Court in Samson v. Ville de St‑Bruno‑de‑Montarville, [1981] C.A. 193.  It is true that in that case an action to invalidate certain municipal by‑laws was dismissed at trial and affirmed by this Court.  While in that case the thirteen‑year delay that had elapsed between adoption of the by‑law and the bringing of the action was mentioned, it should certainly be added that on two occasions the Samson estate had tried to take advantage of the existence of the said by‑law which it much later sought to have vacated.

 

Subsequently, the judge distinguished between absolute and relative nullity and appeared to associate the latter with the action to quash, as appears from the following passage from his judgment at p. 300:

 

                   [translation]  Moreover, the case at bar seems to me to involve absolute and not relative nullity.  The applicant seems to deliberately confuse an application to quash for formal defects or illegalities with one to annul for lack of jurisdiction, abuse of power or discrimination.

 

                   I would point out that discretion and arbitrary action should not be confused.  While arbitrary action means power exercised at will, just as the person likes, discretion, though it removes the strict duty to act, is subject to certain rules.  A judge hearing a direct action in nullity does not decide to do what he feels like doing, but must exercise his power of review in a judicial manner, direct himself correctly in law and observe the applicable principles.  In discussing the function of an appellate court having to consider the exercise by a trial judge of his discretion in an injunction proceeding, Beetz J. in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 154‑55, adopted the observations of Lord Diplock which clearly circumscribe the exercise of this discretion:

 

                   The House of Lords has recently emphasized the limits imposed upon a Court of Appeal in substituting its discretion to that of a motion judge with respect to the granting of an interlocutory injunction, even in a case where the Court of Appeal has the benefit of additional evidence:  Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042.  In this latter case, which presents striking similarities with the case at bar, the Court of Appeal had held it was justified in exercising fresh discretion in view of additional evidence adduced before it, and had set aside the decision of the motion judge without commenting upon it.  The House of Lords restored the judgment of first instance in a unanimous judgment delivered by Lord Diplock:

 

                          Before adverting to the evidence that was before the judge and the additional evidence that was before the Court of Appeal, it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind.  An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard.  On an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own.  It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently.  The function of the appellate court is initially one of review only.  It may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn on the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal, or the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it.  Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it.  It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own.

 

                   First, the judge must take into account the nature of the disputed act, the nature of the illegality committed and its consequences, and second, the causes of the delay between the disputed act and the bringing of the action.  The nature of the right relied on is a factor relevant to the exercise of the discretion, but it is not the only one.  The court must also consider the plaintiff's behaviour.  In a direct action in nullity under art. 33 of the Code of Civil Procedure, the latter may be called on to justify or at least explain his inaction so that the Superior Court can assess in the exercise of its discretionary power whether the delay in exercising his right was reasonable.

 

                   In my view, and in general terms, apart from a case where there is a total absence of jurisdiction, a judge hearing an application under art. 33 of the Code of Civil Procedure may refuse to grant the relief sought if, in view of the circumstances, including the importance of the alleged infringement of a right and the plaintiff's behaviour, he considers it justified to do so.

 

D.  Application of the Principles to the Facts of this Case

 

                   The majority of the Court of Appeal considered that the trial judge was right in exercising his discretion in view of the circumstances and the relative importance of the nullity relied on.  At page 1242 of the Court of Appeal judgment, Lévesque J. (ad hoc) said the following:

 

                   [translation]  Unlike inapplicability and absolute nullity, the effect of which is successive and continuous, insufficiency of notice is a single event the effect of which in time gives rise to the application of judicial discretion, when the Court exercises its superintending and reforming power, since the litigant must act promptly to commence his action.

 

                   All the by‑laws were adopted over five years ago.  The work has been done and all the bonds issued in respect of each by‑law.  The taxes have been paid without protest.  The appellant did not give any reasons for the delay in bringing its action, which then falls within the Superior Court's superintending and reforming power.

 

                   Like Lévesque J. of the Court of Appeal, I am of the view that the case does not involve a lack of jurisdiction or even a defect affecting the overall exercise by the respondent of its powers, as in Air Canada, supra.  The matter is completely within the respondent's authority.  What is actually involved is rather a defect in the exercise of this power, namely the failure to give prior notice to certain persons.  These are the only persons affected, and in this sense the failure can be characterized as a relative nullity.

 

                   It was open to the trial judge to take the appellant's behaviour into account in exercising his discretion.  He noted its lack of diligence in exercising its rights by bringing its action over fifteen years after the first disputed by‑law and five years after the most recent, and the need for some stability in municipal finances.  Further, when the appellant acquired its property it undertook to pay the special taxes, as indicated by the deed of sale, and this constitutes a presumption of knowledge for it and its principals.  The appellant received tax bills each year which it paid without objection.  The work has been done and the bonds issued and reimbursed.

 

                   I consider that there is no basis for intervention by this Court to rectify the trial judgment, since the judge exercised his discretion in a judicial manner and observed the established principles of law.

 

VI -‑ Conclusions

 

                   For all these reasons, I would dismiss the appeal with costs throughout.

 

                   Appeal dismissed with costs.

 

                   Solicitors for the appellant:  Dunton, Rainville, Toupin & Perrault, Montréal.

 

                   Solicitors for the respondent:  Rochon, Prévost, Auclair, Fortin & D'Aoust, St‑Jérôme.