Held: The appeals
should be dismissed.
The order made and signed by the Deputy Minister is
void. Under s. 55 of the Public Health Act, only the Minister in person
could validly sign this order. The wording of s. 55 is clear and precise. It
provides that, in cases which he deems to be urgent, the Minister may exercise
directly the powers vested in the municipal authorities by ss. 46 to 55 of the Public
Health Act, but he must then exercise them himself.
Cases Cited
In re Golden Chemical Products Ltd., [1976] 1 Ch. 300; R. v. Harrison, [1977] 1 S.C.R. 238,
referred to.
Statutes and Regulations Cited
Public Health Act, R.S.Q. 1964, c. 161, ss. 42, 46, 49, 55.
Social Affairs Department
Act, 1970 (Que.), c. 42, ss. 4, 5, 8.
APPEALS against five judgments of the Quebec Court
of Appeal, [1982] C.A. 304, affirming five judgments of the Superior Court.
Appeals dismissed.
Pierre Lemieux,
for the appellant.
Pierre LePage
and André Denis, for the respondent.
English version of the judgment delivered by
1. The
Court‑‑On October 26, 1972 an order was made pursuant to ss.
42 et seq. of the Public Health Act, R.S.Q. 1964, c. 161. That
order read as follows:
[TRANSLATION]
ORDER
TO:
Les Carrières Ste‑Thérèse
Ltée
City of Ste‑Thérèse‑Ouest
County of Terrebonne
...
...under the powers
conferred on me by ss. 5 of the Social Affairs Department Act (1970, chapter
42) and 42 et seq. of the Public Health Act (R.S.Q. 1964, chapter 161),
I declare to be a public nuisance the operation of your asphalt and crushing
plants as hitherto operated in the City of Ste‑Thérèse‑Ouest, and I
order you, in order to remove this nuisance,
(1) to prepare or
cause to be prepared forthwith plans and specifications for a dust exhaust
system at the various emission points in your plants, such as crushers, sieves,
conveyers, loading, transfer and transportation areas, and so on....;
(2) to submit these plans
and specifications to the environmental safety branch of the Department of
Municipal Affairs and have them approved: the head of this branch is Jean‑A.
Roy, engineer;
(3) not to operate
your plants until the dust exhaust system as approved by the environmental
safety branch in accordance with the foregoing paragraph has been installed to
the satisfaction of the said branch.
If you fail to comply with
this order, the proceedings mentioned in the Act for such cases will be taken
immediately: the whole without prejudice to any other proceeding which may be
brought against you.
2. The order concludes with the following
words, written in typescript: [TRANSLATION] "Minister of Social Affairs,
per:". It then bears the handwritten signature of the Deputy Minister of
Social Affairs, with his family and given names repeated in typescript with his
title, "Deputy Minister of Social Affairs".
3. The Court must decide whether the Deputy
Minister could validly make this order on behalf of the Minister.
4. On May 21, 1974 five complaints were
filed against respondent alleging that it operated its crushing or asphalt
plants on five different dates, without obtaining approval for the plans and
specifications of a dust exhaust system, and without installing such a system.
The five dates in question are October 24 and November 5, 9, 12 and 14, 1973.
All the complaints are worded in a similar fashion, except as to the date of
the alleged offence and the number of times it was repeated, which may be
relevant in sentencing. As an example, the complaint relating to the offence of
October 24 reads as follows:
[TRANSLATION]
CARRIERES STE‑THERESE LIMITEE, at Ste‑Thérèse‑Ouest, district
of Terrebonne:
did unlawfully operate
its crushing or asphalt plants on or about October 24, 1973 without having the
plans and specifications of a dust exhaust system approved by the environmental
safety branch of the Department of Municipal Affairs, and without installing
such a dust exhaust system to the satisfaction of the environmental safety
branch;
the whole contrary to an
order made by the Deputy Minister of Social Affairs on October 26, 1972,
pursuant to the provisions of s. 5 of the Social Affairs Department Act (1970,
chapter 42) and ss. 42, 46 and 55 of the Public Health Act (R.S.Q. 1964,
chapter 161) and received by LES CARRIERES STE‑THERESE LIMITEE on
December 2, 1972, thereby committing a second offence as specified in section
106 of the Environment Quality Act (1972, chapter 49).
5. On March 31, 1978, respondent was
convicted of the offences charged by a judge of the Court of Sessions of the
Peace, acting as a justice of the peace pursuant to the Summary Convictions
Act, R.S.Q. 1964, c. 35, and on April 14, 1978, it was sentenced to pay a
$10,000 fine for each of the five offences, pursuant to the Environment
Quality Act, 1972 (Que.), c. 49, a statute which meanwhile had replaced the
Public Health Act. The problem submitted to this Court was not raised
before the judge of Sessions of the Peace.
6. Respondent appealed to the Superior
Court by trial de novo, and on November 20, 1978, that Court allowed the
appeal and quashed the decisions of the judge of Sessions of the Peace on the
ground that an order with such far‑reaching consequences as that of
October 26, 1972 could only be made by the elected municipal authority or by
the Minister in person, also elected, but not by a public servant, however
senior.
7. On December 4, 1978, appellant obtained
leave from a judge of the Court of Appeal to appeal in the five cases on the
following point of law:
[TRANSLATION] "The
validity and legality of an order made pursuant to the Public Health Act"
8. On June 14, 1982, in five majority
judgments, the Court of Appeal dismissed the five appeals. The reasons of the
Court of Appeal are contained in the judgment on the offence allegedly
committed on October 24, 1973, [1982] C.A. 304. The reasons of the other
judgments simply refer to this one.
9. One of the judges in the majority held
that the order made on October 26, 1972, though applicable to a particular
case, is still legislative in nature and cannot be delegated to the Deputy
Minister, in view of the maxim Delegatus non potest delegare. In
his view it does not, as the dissenting judge considered, fall within
administration of the day‑to‑day business of the Department, which
is the responsibility of the Deputy Minister. The other judge in the majority
considered that the order made on October 26, 1972, entailed the exercise of a
judicial power and a legislative power, which because of their significance
could not be delegated to a public servant.
10. The dissenting judge analysed the relevant
legislation, in particular s. 4 of the Social Affairs Department Act,
1970 (Que.), c. 42, which gives the Deputy Minister the power to administer day‑to‑day
business under the direction of the Minister; in his view, this power includes
that of making the order of October 26, 1972, as in general the significance of
the consequences for individuals should not be taken into account in this
regard, and he cited in support, in addition to abundant textbook authority,
judgments such as those in In re Golden Chemical Products Ltd.,
[1976] 1 Ch. 300, and R. v. Harrison, [1977] 1 S.C.R. 238.
11. The order of October 26, 1972, and the
complaint refer to s. 5 of the Social Affairs Department Act, and to ss.
42 et seq., in particular ss. 42, 46 and 55, of the Public Health Act.
It is necessary to cite the text of these provisions, along with certain other
sections from the same Acts, which were also discussed by the Court of Appeal
and the parties.
12. First, the relevant provisions of the Social
Affairs Department Act read as follows:
4.
The Lieutenant‑Governor in Council shall appoint a Deputy Minister of
Social Affairs, hereinafter called "the Deputy Minister".
Under
the direction of the Minister, the Deputy Minister shall supervise the officers
and employees of the Department; he shall administer its day to day business
and exercise the other powers assigned to him by the Lieutenant‑Governor
in Council.
5.
The orders of the Deputy Minister shall be carried out in the same manner as
those of the Minister; his authority shall be that of the head of the
Department and his official signature shall give force and effect to any
document within the jurisdiction of the Department.
...
8.
No deed, document or writing shall bind the Department or be attributed to the
Minister unless it is signed by him, the Deputy Minister or an officer and
only, in the case of the latter, to the extent determined by regulation of the
Lieutenant‑Governor in Council published in the Québec Official
Gazette.
The relevant provisions of the Public Health Act read as
follows:
42.
Everything declared by the Minister or by a municipal council or its board of
health to be a nuisance or to be injurious to public health shall be considered
to be such.
An
appeal may, however, be taken to the Minister as to the definition given by a
municipal council or by its board of health.
13. Section 43 imposes on the municipal
sanitary authority a duty to cause the immoveables to be visited to ascertain
whether there are any accumulations of filth, dirt, rubbish or other matter
deleterious to health, or whether there are any nuisances.
14. Section 44 specifies who may file a
complaint concerning a nuisance or unhealthy condition.
15. Section 45 imposes on the municipal
sanitary authority a duty to institute an inquiry on receipt of a complaint and
confers powers relating to this duty.
16. Section 46 provides:
46.
When, upon a complaint or after inspection by its officers, the municipal
sanitary authority has become aware of the existence, upon an immoveable
situated within the municipality, of a nuisance or of unhealthy conditions, it
shall give notice in writing to the person responsible for such nuisance or
unhealthy condition, or, if such person cannot be found, to the owner or
occupant of the immoveable, requiring him to abate the same or to do the
necessary work to prevent its return, within the delay mentioned in the notice.
If it
be ascertained that the nuisance or unhealthy condition arises from some defect
in the construction of the building, or if the property be unoccupied, the
notice prescribed by this section shall be given to the owner.
If the
person responsible for the existence of such nuisance or unhealthy condition
cannot be found, and if the municipal sanitary authority be of opinion that the
nuisance or unhealthy condition is not due to the acts or omissions of the
owner, it may cause it to be abated at the expense of the municipality.
17. Sections 47 and 48 are not relevant to the
case at bar.
18. Section 49 provides:
49.
If the notice mentioned in section 46 has no effect, the municipal health [sic]
authority may have the necessary work to remove the nuisance or unhealthy
condition done at the expense of the person in default.
However,
if the performance of such work would entail an expense of five hundred dollars
or more, such person may appeal therefrom to the Minister within fifteen days
from the service of the notice.
If,
after investigating the truth of the facts by every means he may deem
advisable, the Minister decides that the nuisance must be abated, he shall give
the appellant and the municipal sanitary authority notice of his decision, and
the appellant shall comply therewith within the delay fixed by the decision;
and if he fail to do so, the work shall be executed by the municipal sanitary
authority at the expense of the appellant.
19. Section 50 concerns the fines that may be
imposed on persons not complying with an order to abate a nuisance or unhealthy
condition. As mentioned above, these fines have been replaced by those
specified in the Environment Quality Act.
20. Sections 51 to 54 inclusive are not
relevant to the case at bar.
21. Finally, s. 55 which, in our opinion, is
conclusive, provides in its two versions:
55. Le ministre peut exercer directement lui‑même les pouvoirs
confiés aux autorités municipales par les articles 46 à 55, dans les cas où il
juge qu'il y a urgence.
55. The Minister may himself exercise directly the powers vested in the
municipal authorities by sections 46 to 55, in the cases which he deems to be
urgent.
22. Appellant referred, first, to the general
principles of the common law, according to which the powers of a Minister of
the Crown are allegedly delegated by implication to a Deputy Minister. It
relied inter alia on the textbook authority and precedent mentioned by
the dissenting judge in the Court of Appeal.
23. Appellant further argued that the
delegation of the Minister's powers to the Deputy Minister was made expressly
by s. 5 and the first paragraph of s. 8 of the Social Affairs Department Act.
24. Finally, appellant argued that the judges
in the majority on the Court of Appeal erred by considering the nature and
significance of the power delegated, contrary to the judicial authority cited
by the dissenting judge.
25. It does not appear necessary to decide
whether the principles of the common law and ss. 4, 5 and 8 of the Social
Affairs Department Act have the scope suggested for them by appellant. Even
admitting for the sake of argument that they have that scope, such general
principles, whether or not codified by legislation which is itself as general
as the sections in question, could not override such special, specific and
express legislation as that of s. 55 of the Public Health Act.
26. This section is not mentioned in the order
of October 26, 1972, but it is mentioned in the complaint. Further, appellant
did not dispute that the Department of Social Affairs acted under this section,
for it pleaded a state of urgency in responding to another objection raised by
respondent, namely that the order contained no time limit as provided by ss. 46
and 49.
27. Section 55 provides that, in cases which
he deems to be urgent, the Minister may exercise directly the powers vested in
the municipal authorities by ss. 46 to 55, but he must then exercise them
himself.
28. When questioned at the hearing on the
meaning and scope of the word "himself", counsel for the appellant
answered that this was a redundancy. We cannot agree. The legislator does not
speak in vain.
29. The dissenting judge wrote that s. 55 is
designed to emphasize that the Minister may sometimes short‑circuit the
municipal authorities, and that no other meaning than this should be given to
the word lui‑même [himself]. With respect, the Court also cannot
adopt this view. The word directement [directly] suffices to confer on
the Minister the power to short‑circuit the municipal authorities, that
is, the power to act otherwise than by way of appeal from the municipal
authorities' order‑‑and we do not have to decide whether he can act
directly in non‑emergency situations. But we feel that he can only
exercise the emergency powers conferred by s. 55 if he is exercising them
himself, that is, in person. This is the usual meaning and the one generally
given to it by the dictionaries. Thus, the Dictionnaire du français vivant
(Bordas) (1972) gives the word lui‑même as a synonym for "in
person", as does the Grand Larousse de la langue française (1975).
Littré, Dictionnaire de la langue française (1957), states that:
[TRANSLATION] Même
is used without article, immediately after nouns to indicate more clearly the
person or thing referred to .... It is joined in the same way with personal
pronouns.
The Dictionnaire Quillet de la langue française (1975) states
that [TRANSLATION] " placed after a pronoun which it modifies, [même]
is used to place emphasis on the person, the identity...." The word
"himself" in the English version does not have a different meaning.
The Shorter Oxford English Dictionary (3rd ed., 1973) gives as its first
meaning "Emphatic use, very him, very he, that very man". The Random
House Dictionary of the English Language (1973) also gives as the first
meaning "an emphatic appositive of him or he: He himself spoke to the
men".
30. We conclude that only the Minister in
person could validly have signed the order of October 26, 1972. It is therefore
void.
31. The five appeals should be dismissed.
Respondents shall be entitled to costs in this Court on a solicitor and client
basis, both on the application for leave to appeal and on the appeals.
Appeals dismissed.
Solicitors for the appellants: Claude Bouchard and
Jean Piette, Ste‑Foy.
Solicitors for the respondent: Viau, Hébert,
Denault, Montréal.
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