Air Canada v. City of Dorval, 1985 CanLII 40 (SCC), [1985] 1 SCR 861
Air Canada Appellant;
and
City of Dorval Respondent.
1985: February 13, 14; 1985: June 27.
Present: Beetz, Estey, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Municipal law ‑‑ By‑law and resolutions ‑‑ Validity ‑‑ Business tax imposed by by‑law ‑‑ Tax rate fixed annually by resolution of the city council ‑‑ Excess of jurisdiction ‑‑ Action in nullity allowed ‑‑ By‑law of the City of Dorval, No. 577, s. 2 ‑‑ Code of Civil Procedure, art. 33.
In June 1963, respondent adopted By‑law 577 based on s. 526 of the Cities and Towns Act, as amended by the Charter of the City of Dorval. Section 2 of that by‑law imposed a business tax and gave the Council of the City the right to fix the tax rate annually by way of resolution. In April 1974, appellant by a direct action in nullity challenged the validity of s. 2 of the By‑law and the resolutions setting the tax rate for 1972‑73 and 1973‑74. The Superior Court dismissed the action and a majority of the Court of Appeal affirmed the judgment. This appeal sought to determine (1) whether the fact that respondent did not set the tax rate in the by‑law but rather authorized the Council to do so by way of resolution had the effect of vitiating s. 2 of the By‑law and the resolutions, and (2) whether appellant could proceed by a direct action in nullity under art. 33 C.C.P.
Held: The appeal should be allowed.
Section 2 of the By‑law and the two resolutions should be quashed. By a charter and the Cities and Towns Act, the Legislature conferred on the Council of the City of Dorval the power to tax by by‑law. By adopting By‑law 577, the Council delegated to itself the power to set the business tax rate by way of resolution, whereas the Legislature had conferred this power on it with a requirement that it be exercised by by‑law. It thus wrongfully authorized itself to do by way of resolution what it could only do by 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.
Cases Cited
Corporation du Village de Ste‑Anne‑Du‑Lac v. Hogue, 1958 CanLII 74 (SCC), [1959] S.C.R. 38; Trustees of Grosvenor St. Presbyterian Church v. City of Toronto (1918), 1918 CanLII 524 (SCC), 45 D.L.R. 327; Ponton v. City of Winnipeg (1908), 1908 CanLII 29 (SCC), 41 S.C.R. 18; Liverpool and Milton Ry. Co. v. Town of Liverpool (1903), 1903 CanLII 67 (SCC), 33 S.C.R. 180; Waterous Engine Works Co. v. Town of Palmerston (1892), 1892 CanLII 15 (SCC), 21 S.C.R. 556; Whelan v. Ryan (1891), 1891 CanLII 67 (SCC), 20 S.C.R. 65; Town of St. Louis v. Citizens Light and Power Co. (1903), 13 Que. K.B. 19; Canadian Institute of Public Real Estate Companies v. Corporation of the City of Toronto, 1979 CanLII 30 (SCC), [1979] 2 S.C.R. 2; Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131; St‑Joseph de Beauce v. Lessard, [1954] Que. Q.B. 475; Donohue Bros. v. Corp. La Malbaie, 1924 CanLII 42 (SCC), [1924] S.C.R. 511, Cité de Sillery v. Sun Oil Co., 1964 CanLII 82 (SCC), [1964] S.C.R. 552; Boily v. Corporation de St‑Henri de Taillon (1920), 1920 CanLII 61 (SCC), 61 S.C.R. 40; Corporation d’Aqueduc de St. Casimir v. Ferron, 1930 CanLII 70 (SCC), [1931] S.C.R. 47; City of Outremont v. Protestant School Trustees of the City of Outremont, 1952 CanLII 57 (SCC), [1952] 2 S.C.R. 506; City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC), [1952] 1 S.C.R. 222, referred to.
Statutes and Regulations Cited
Act to amend the charter of the town of Dorval, 1954‑55 (Que.), c. 83, art. 1 (as am. by An Act to amend the charter of the city of Dorval, 1956‑57 (Que.), c. 91, art. 4).
By‑law Concerning Business Taxes and License Fees, By‑law of the City of Dorval, No. 577, art. 2.
Cities and Towns Act, R.S.Q. 1941, c. 233, art. 526 (as repl. by s. 1 of An Act to amend the charter of the town of Dorval, 1954‑55 (Que.), c. 83, and as am. by s. 4 of An Act to amend the charter of the city of Dorval, 1956‑57 (Que.), c. 91).
Cities and Towns Act, R.S.Q. 1964, c. 193, ss. 385, 388, 390, 391, 395, 396, 411, 421, 423.
Cities and Towns Act, R.S.Q. 1977, c. C‑19, s. 70(2) (as rep. by An Act respecting land use planning and development, 1979 (Que.), c. 51, s. 260).
Civil Code, arts. 2242, 2260.8.
Code of Civil Procedure, art. 33 (formerly art. 50).
Municipal Code of Québec, R.S.Q., c. C‑27.1, s. 989.
Authors Cited
Rousseau, G. "Le recours en cassation dans le contentieux municipal" (1980), 21 C. de D. 715.
APPEAL from a judgment of the Quebec Court of Appeal, [1982] C.A. 124, 21 M.P.L.R. 66, affirming a judgment of the Superior Court, dismissing appellant's action for a declaration of nullity of a by‑law and two resolutions of respondent and for an order to reimburse taxes. Appeal allowed.
François Michel Gagnon and Marc‑André Fabien, for the appellant.
Yvon Denault and Pierre Roy, for the respondent.
English version of the judgment delivered by
Introduction
The Court‑‑By a direct action in nullity, appellant is asking the Court to strike down s. 2 of By‑law 577 and Resolutions 247‑72 and 615‑73 of respondent, by which the latter imposed a business tax. Appellant is further asking the Court to direct respondent to repay the sum of $154,754.20 which it paid pursuant to this by‑law and these resolutions.
Appellant's action was dismissed in the Superior Court and the Court of Appeal.
Background and Legislation
The City of Dorval is governed by a special Charter, An Act concerning the charter of the town of Dorval, 1912 (Que.), 2 Geo. V, c. 71, as amended by An Act to consolidate the charter of the town of Dorval, 1950 (Que.), c. 120.
It is also governed, where these are not inconsistent with its Charter, by the provisions of the Cities and Towns Act, R.S.Q. 1941, c. 233 (subsequently R.S.Q. 1964, c. 193, and now the Cities and Towns Act, R.S.Q., c. C‑19).
By‑law 577 adopted on June 7, 1963 is based on s. 526 of the Cities and Towns Act, as replaced for the City of Dorval by s. 1 of An Act to amend the charter of the town of Dorval, 1954‑55 (Que.), c. 83, amended by An Act to amend the charter of the city of Dorval, 1956‑57 (Que.), c. 91, s. 4:
The council may impose by by‑law and collect certain annual dues or taxes on all or some trades, manufactures, financial or commercial occupations, arts, professions, callings or means of earning a profit or livelihood, carried on or followed in the city. Such dues or taxes may consist of a fixed amount or be proportionate to the annual rental value as assessed on the premises occupied for such purposes; such dues or taxes may be imposed under both forms at the same time, and may be different or higher when payable by persons who do not reside in the city or who have resided therein for less than twelve months; however, in no such case shall the sum fixed exceed two hundred dollars and the sum proportionate to the annual rental value, ten per cent of such value.
Section 2 of By‑law 577 provides:
An annual tax is hereby imposed on all business carried on in the city, except those specifically referred to in Sections 3, 4 and 5 of this by‑law, and such tax is hereby levied on every person carrying on any such business at a rate, to be fixed annually by resolution of the City Council, but not to exceed ten per cent (10%) of the annual rental value as assessed on the premises occupied for such purposes, provided, however, that such tax shall not be less than twenty‑five dollars ($25.00) per annum for each of the premises occupied for any such purposes in the city.
- Pursuant to this by‑law the following resolutions were adopted on April 4, 1972 and September 17, 1973:
April 4, 1972
247‑72
MOVED BY COUNCILLOR BERNIER
SECONDED BY COUNCILLOR BALLANCE
UNANIMOUSLY RESOLVED:
To fix a tax of 8½% for the year beginning May 1, 1972 and ending April 30, 1973 on the annual rental value as assessed on the premises occupied for the operation of business in the City of Dorval, where applicable; the whole in accordance with By‑law 577 concerning business taxes and license fees.
September 17, 1973
615‑73 Council takes cognizance of a report from the City Manager, dated September 17, 1973, re Business Rate for 1973‑1974.
MOVED BY COUNCILLOR BERNIER
SECONDED BY COUNCILLOR RIOUX
UNANIMOUSLY RESOLVED:
To fix a tax rate of 6% for the year beginning May 1, 1973 and ending April 30, 1974, on the annual rental value as assessed by the Montreal Urban Community, on the premises occupied for the operation of business in the City of Dorval, where applicable, the whole in accordance with By‑law 577 concerning business taxes and license fees.
Issues
- Only the legality of the impugned by‑law and resolutions is at issue. The parties admitted the appropriateness of this passage from the judgment of the Superior Court:
[TRANSLATION] There is no conflict as to the facts, as counsel agreed that the only point at issue concerned the legality of the impugned by‑law and resolutions. If the latter were found to be invalid, the action should be allowed, and on the contrary, if they were found to be "intra vires", the action of plaintiff would have to be dismissed.
In particular, the Court has to determine whether the fact that respondent did not set the tax rate in the By‑law but authorized the Council to do so by way of resolution has the effect of vitiating s. 2 of the By‑law and resolutions.
The Court must also determine whether appellant could proceed by a direct action in nullity under art. 33 C.C.P., or whether it should have proceeded by a motion to quash a by‑law under s. 411 of the Cities and Towns Act, which imposes a prescription period of three months from the date the by‑law became effective.
In the Superior Court appellant raised an argument which it has since abandoned. It maintained that respondent's power to impose a business tax could only be based on s. 526a, added to the Cities and Towns Act by s. 13 of An Act to amend the Cities and Towns Act, 1957‑58 (Que.), c. 36. This section was more limiting than s. 526, notwithstanding the amendment of the latter for the City of Dorval. The Superior Court judgment is mostly devoted to rejecting this argument.
The argument in this Court was the same as in the Court of Appeal, and is summarized as follows in the majority reasons of the Court of Appeal, [1982] C.A. 124, at p. 126:
[TRANSLATION] Respondent admitted that it was irregular and contrary to section 526, cited above, not to fix the annual rate of the tax by by‑law and to do it by way of resolution.
Where the parties differ is as to the consequences of this irregularity.
Appellant argued that By‑law 577 is subject to absolute nullity, respondent that there was only a formal defect which is covered by the failure to assert it by a motion to quash within three months.
Respondent added that it is definitely not a case in which the remedy of art. 33 C.C.P. was available to appellant.
Returning to appellant, it argued that essentially section 2, cited above, is simply a repetition of section 526 and sets no rate, one of the two essential components of any tax, the other being the property.
Analysis
- A municipality only has those powers expressly conferred by the Legislature. In City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC), [1952] 1 S.C.R. 222, it is stated at p. 228:
That the municipalities derive their legislative powers from the provincial Legislature and must, consequently, frame their by‑laws strictly within the scope delegated to them by the Legislature, are undisputed principles. In the very words of Sir Mathias Tellier, the then Chief Justice of the Province of Quebec, in Phaneuf v. Corporation du Village de St‑Hughes, Q.R. (1936) 61 K.B. 83 at 90:
[TRANSLATION] In the area of legislation, municipal corporations have only those powers formally delegated to them by the Legislature; and they can neither extend nor exceed these powers.
- The same principle was stated by this Court in City of Outremont v. Protestant School Trustees of the City of Outremont, 1952 CanLII 57 (SCC), [1952] 2 S.C.R. 506, at pp. 511 and 513.
Validity of the By-law and Resolutions
A municipal corporation can only express its will by resolution or by‑law.
In an article titled "Le recours en cassation dans le contentieux municipal" (1980), 21 C. de D. 715, G. Rousseau writes at p. 729:
[TRANSLATION] The words "resolutions" and "by‑laws" serve to differentiate the typical decision proceedings of the Council. A resolution may be regarded as a simple or ordinary deliberation, since in principle it only requires a vote of a majority of members of the municipal Council present. The word "by‑law" has a very special meaning in Quebec municipal law. It is defined not by its content, for example, as an act of general application as opposed to an individual act, but by its form. A by‑law is an act done in accordance with a special procedure, which does not apply to the resolution: it must be preceded by a notice of motion, given at an earlier session of the Council, and then be published.
In the Cities and Towns Act, the Legislature has taken care to indicate the cases in which a municipality may act by by‑law and to distinguish them from those in which it may act by way of resolution, and from those where it may choose either.
Sections of the Act requiring the passing of a by‑law are worded in two ways.
The first group states that "The council may, by by‑law" enact a measure or decide on a given matter. Examples of this which may be mentioned are ss. 68.2(a), 398, 439, 449 and 475 of the Cities and Towns Act. All these references are to c. 193 of the 1964 Revised Statutes.
The second group provides that "The council may make by‑laws" for one or more defined purposes. Sections 424, 428, 442, 459, 469 and 472 illustrate this.
Other sections such as ss. 516, 517, 579, 604.4 and 688 expressly authorize the council to act by way of resolution.
Some provisions prescribe no particular procedure, such as ss. 26.1, 81, 99, 115, 470 and 576. It is generally recognized that in such cases the Council may act by way of resolution.
Finally, the Act sometimes allows the council to proceed either by way of resolution or by by‑law: ss. 68.1 and 429.7a) are of this type.
In general a resolution is used for everyday administrative decisions. It is used in cases where the Act specifies, as in the sections referred to above, and it is also used when the Act is silent as to the way in which the municipality may express its decision. The resolution is devoid of any formal requirement.
A by‑law, on the other hand, is subject to special and specific formal requirements, especially regarding the publicity which must accompany it.
A by‑law must, on pain of nullity, be preceded by a notice of motion. Section 385 of the Cities and Towns Act provides:
The council may determine the notice to be given of the introduction of municipal by‑laws, and order that such by‑laws be read twice or three times before being passed, on different days or on the same day.
Where the council has not fixed the procedure respecting notice of introduction of municipal by‑laws and the reading thereof, under the preceding paragraph, no by‑law, on pain of nullity, shall be passed unless it is preceded by notice of motion given at a sitting of the council and is read at a subsequent sitting held on a later day.
- In Corporation d’Aqueduc de St. Casimir v. Ferron, 1930 CanLII 70 (SCC), [1931] S.C.R. 47, Rinfret J., as he then was, wrote for the Court at p. 50:
[TRANSLATION] By indicating the purpose of the by‑law, the notice of motion or notice of publication informs all those concerned of the nature of the municipal order being proposed or adopted, and constitutes a warning of the imminence of legislation on all questions relating to the subject mentioned.
In Boily v. Corporation de St‑Henri de Taillon (1920), 1920 CanLII 61 (SCC), 61 S.C.R. 40, this Court stroke down a by‑law because it had not been preceded by a valid notice of motion. In the case at bar, not only was there no notice of motion, but there was no by‑law so far as setting the tax rate was concerned.
The by‑law must be published (ss. 390, 391 and 396). It must be registered in a special book (s. 388). It must be sent to the Minister of Municipal Affairs, who may cause it to be disallowed by the Lieutenant Governor in Council (s. 423). In the six following cases, this Court stroke down resolutions in cases where a by‑law was required:
‑‑Corporation du Village de Ste‑Anne‑Du‑Lac v. Hogue, 1958 CanLII 74 (SCC), [1959] S.C.R. 38 (Quebec);
‑‑Trustees of Grosvenor St. Presbyterian Church v. City of Toronto (1918), 1918 CanLII 524 (SCC), 45 D.L.R. 327 (Ontario);
‑‑Ponton v. City of Winnipeg (1908), 1908 CanLII 29 (SCC), 41 S.C.R. 18 (Manitoba);
‑‑Liverpool and Milton Ry. Co. v. Town of Liverpool (1903), 1903 CanLII 67 (SCC), 33 S.C.R. 180 (Nova Scotia);
‑‑Waterous Engine Works Co. v. Town of Palmerston (1892), 1892 CanLII 15 (SCC), 21 S.C.R. 556 (Ontario);
‑‑Whelan v. Ryan (1891), 1891 CanLII 67 (SCC), 20 S.C.R. 65 (Manitoba).
- It should be mentioned that it is possible to distinguish two of these cases and the case at bar. In Corporation du Village de Ste‑Anne‑Du‑Lac, in addition to a requirement to proceed by by‑law in granting an exclusive privilege to operate a waterworks system, the Municipal Code directed that the by‑law should be approved by a vote of a majority in number and value of the electors who were property owners and by the Lieutenant Governor in Council. The penalty attaching to failure to proceed by by‑law and obtain the necessary approvals is indicated in express terms in the unanimous judgment written by Taschereau J., as he then was. He said, at p. 40:
[TRANSLATION] Now, this was not done: they simply passed a resolution, which of course has no legal validity and can confer no right on respondents. The act of the municipal council is subject to absolute nullity, which may be pleaded by all the parties concerned.
In Liverpool and Milton Ry. Co. v. Town of Liverpool, the municipality had by way of resolutions authorized the construction of a railway through its territory. The Act required that such authorization be given by by‑law and that the by‑law be approved by the Governor in Council. The resolutions were held to be invalid, the Court giving as its reasons both the failure to proceed by by‑law and the failure to obtain approval.
However, in the four other decisions of this Court cited above, only the failure to proceed by by‑law was at issue. No special approval was required.
In the last cited of these cases, Whelan v. Ryan, the question was precisely whether the imposition of a tax by a municipality was valid. Immovables had been sold because the taxes were not paid, and the sale was voided on the ground that the tax had not been validly imposed, as it was not imposed by by‑law. Strong J. wrote, inter alia, at pp. 69‑70:
As regards the taxes claimed for both the years 1880 and 1881 it appears to me to be very clear that there was no imposition of rates such as the law required, and consequently the land was sold for taxes not legally due. The legality of the taxes claimed for those two years depends on different statutes, that for 1880 being regulated by 43 Vic. ch. 1 and that for 1881 by 44 Vic. ch. 3, but they each contain a clause, identical in terms, providing that the council shall in each year after the revision of the roll pass a by‑law "for levying a rate on all the real and personal property in the said roll to provide for all the necessary expenses of the said municipality".
... the fact is established that there never was a by‑law in either year. It is true that it does appear that on the 2nd August, 1880, a resolution was passed that a rate of five mills on the dollar be struck on the total of the assessment roll and a similar resolution was passed on the 11th July, 1881. But these resolutions are not the equivalents of by‑laws, not being passed with the same solemnities....
To these judgments one may add that of the Court of Appeal in Town of St. Louis v. Citizens Light and Power Co. (1903), 13 Que. K.B. 19, which is cited by this Court in City of Outremont v. Protestant School Trustees of the City of Outremont, supra, at p. 513.
Additionally, an analogy can be made between the case at bar and the following decisions of this Court:
‑‑Canadian Institute of Public Real Estate Companies v. Corporation of the City of Toronto, 1979 CanLII 30 (SCC), [1979] 2 S.C.R. 2;
‑‑Brant Dairy Co. v. Milk Commission of Ontario, 1972 CanLII 11 (SCC), [1973] S.C.R. 131.
- It is true that in these cases the authority vested with regulatory power instead of exercising it and defining precise standards simply reproduced the enabling provisions in a by‑law. Thus, the authority was in a position to decide on the merits of each case at its discretion. The following extract from the reasons of Spence J. in Canadian Institute of Public Real Estate Companies, at p. 9, in which he cites Laskin J., as he then was, in Brant Dairy Co., clearly illustrates the procedure:
In the Brant Dairy case, the regulations of the Commission permitting the action of the Board in enacting its regulations there in question provided for, inter alia, the fixing and allotting to persons of quotas for the marketing of a regulated product on such basis as the Board deems proper. In each case, the subordinate legislating body purported to exercise the power by, to quote Laskin J., as he then was, in the Brant Dairy case at p. 146:
What the Board had done has been to exercise the power in the very terms in which it was given. It has not established a quota system and allotted quotas, but has simply repeated the formula of the statute, specifying no standards and leaving everything in its discretion.
I am of the opinion that those words may be exactly adopted to the action of the municipal council in the enactment of by‑law 419‑74. There has been the mere simple repetition of the power and not the exercise of the power by the enactment of a by‑law defining the desired regulations. Laskin J., as he then was, continued on the same page:
A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent, 1956 CanLII 5 (SCC), [1956] S.C.R. 318.
In the case at bar the Council of the City of Dorval did not simply reproduce the provisions of s. 526 of the Cities and Towns Act in By‑law 577. It enacted provisions in accordance with the Act by making certain of the choices offered to it. However, it did not exercise its power respecting the rate. To use the language of Laskin J. in Brant Dairy Co., the Council, in which the power to set a rate by by‑law was vested, redelegated to itself the power to set it by way of resolution. The Council did not have the power to thus make a redelegation to itself.
It should be observed that in some cases the Legislature has provided that a municipal council can pass a by‑law and by that by‑law delegate certain powers to itself.
Thus, section 70(2) of the Cities and Towns Act, R.S.Q. 1977, c. C‑19, provided, before it was repealed by An Act respecting land use planning and development, 1979 (Que.), c. 51, s. 260:
(2) The council, by by‑law, may:
(a) establish a town‑planning commission, composed of such number of members as it shall determine, who may be chosen from among the members of the council, the officers or employees of the municipality and the ratepayers residing in the municipality;
(h) authorize the council to appoint, by resolution, the members and officers of the commission and to add to it, also by resolution, persons whose services may be necessary for the performance of its duties.
Reference may also be made to s. 989 of the Municipal Code of Québec, R.S.Q., c. C‑27.1, which has no equivalent in the Cities and Towns Act:
Every local corporation may impose and levy annually, within the limits determined by this Code, by direct taxation on all the taxable property of the municipality, any sum of money required to defray the expenses of administration, or for any special purpose whatever, within its jurisdiction.
The council of any local corporation may order, by by‑law, that the annual real estate tax shall be imposed by resolution. From and after the coming into force of such by‑law and until it has been repealed, such tax shall be imposed by resolution.
No similar applicable provision exists in the case at bar.
Finally, it should be noted regarding the resolutions themselves that under s. 395 of the Cities and Towns Act, "A by‑law may be repealed or amended only by another by‑law". The effect of the resolutions fixing the annual rate of the business tax which the by‑law did not establish was clearly to add to the by‑law, thereby amending it. They cannot be valid.
Availability of the Remedy under Article 33 C.C.P.
Respondent further argued that the remedy provided by art. 33 C.C.P. (formerly art. 50 C.C.P.), namely the direct action in nullity, does not lie, and that appellant could only present a motion to quash the by‑law on the ground of illegality (s. 411 of the Cities and Towns Act), this remedy being prescribed after three months from the date the by‑law comes into effect (s. 421).
In the case at bar, the action was brought over ten years after By‑law 577 came into effect. However, the direct action in nullity is subject only to the thirty‑year prescription of art. 2242 C.C.
An action for recovery of taxes, on the other hand, is prescribed after five years (art. 2260.8 C.C.), but this prescription is not at issue. The taxes for which reimbursement is claimed relate to the taxation years 1972 and 1973. The action brought in April 1974 was brought well within the five‑year period.
Either appellant had only the remedy of a motion to quash, which was manifestly prescribed, or it could have proceeded by a direct action, a right which ceased after thirty years, and its remedy in that case was not prescribed. We consider that appellant could proceed by a direct action in nullity.
In St‑Joseph de Beauce v. Lessard, [1954] Que. Q.B. 475, Pratte J. wrote at p. 478:
[TRANSLATION] The scope of art. 50 C.C.P. has been so often canvassed that it would be futile to re‑examine all the judgments regarding it, in which its limits have been set. We need only mention that it is settled law that an action under art. 50 C.C.P. will lie against municipal proceedings in cases of excess of power, in cases of fraud, and when a breach of a statute or an abuse of power amounting to fraud has the effect of a flagrant injustice.
This passage from the judgment of Pratte J. was cited by this Court in Cité de Sillery v. Sun Oil Co., 1964 CanLII 82 (SCC), [1964] S.C.R. 552, at pp. 556‑57.
In Donohue Bros. v. Corp. La Malbaie, 1924 CanLII 42 (SCC), [1924] S.C.R. 511, Mignault J. wrote at p. 521:
[TRANSLATION] Want or excess of jurisdiction produces absolute nullity and a party affected thereby always has a remedy under article 50 of the Code of Civil Procedure.
- By the Charter and the Cities and Towns Act, the Legislature granted the Council of the City of Dorval the power to tax by means of a by‑law. The Council adopted By‑law 577, by which it gave itself the power to set the tax rate by way of resolution. 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.
Conclusion and Disposition
- In conclusion, we adopt this passage from the reasons of Lajoie J.A., dissenting in the Court of Appeal (at p. 130):
[TRANSLATION] What section 526 of the Cities and Towns Act authorized was the imposition of a business tax by by‑law, with the mandatory formalities attaching to this type of legislation. By claiming to legislate by way of resolution, the City of Dorval acted without being authorized to do so by the Legislature.
- For these reasons we would allow the appeal, reverse the judgments of the Court of Appeal and the Superior Court, allow appellant's action, declare s. 2 of By‑law 577 of the City of Dorval, its Resolution 247‑72 dated April 4, 1972 and its Resolution 615‑73, dated September 17, 1973, to be void and ultra vires, and order respondent to pay appellant the sum of $154,754.20, with interest from the date of service and costs in all courts.
Appeal allowed with costs.
Solicitors for the appellant: Martineau, Walker, Montréal.
Solicitors for the respondent: Viau, Hébert, Denault, Montréal.