Centre communautaire juridique de l'Estrie v. Sherbrooke (City), 1996 CanLII 168 (SCC), [1996] 3 SCR 84

Centre communautaire juridique de l'Estrie v. Sherbrooke (City), 1996 CanLII 168 (SCC), [1996] 3 SCR 84

Centre communautaire juridique de l’Estrie Appellant

v.

City of Sherbrooke Respondent

and

Commission municipale du Québec Respondent

and

Attorney General of Quebec Respondent

Indexed as: Centre communautaire juridique de l’Estrie v. Sherbrooke (City)

File No.: 24425.

1996: April 29; 1996: September 12.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for quebec

Municipal law ‑‑ Taxation ‑‑ Business tax ‑‑ Exemption ‑‑ Legal Aid Bureau ‑‑ Whether Quebec municipal commission's decision refusing to grant a business tax exemption to legal aid bureau patently unreasonable ‑‑ Act respecting Municipal Taxation, R.S.Q., c. F‑2.1, s. 236.

The appellant, a regional legal aid corporation, requested a business tax exemption pursuant to s. 236 of the Act respecting Municipal Taxation ("AMT"). The Commission municipale du Québec (the "Commission") rendered two decisions. In the first, it granted a tax exemption for the appellant’s administrative office, finding that the activity exercised in the premises fell under s. 236(7) AMT, since it was a management activity carried on without pecuniary gain for the purpose of helping economically underprivileged persons. In the second, the Commission refused an exemption for the portion of the appellant’s premises occupied by the legal aid bureau because the services offered by the lawyers’ bureau were professional services of a legal character and this activity was not included in any of the activities mentioned in s. 236(5), or in the category of management activities listed in s. 236(6) and (7). The appellant applied for judicial review of the second decision. The motion in evocation was granted, the Superior Court judge holding that the legal aid bureau should benefit from a tax exemption under s. 236(5) AMT, which provides an exemption for an activity carried on without pecuniary gain mainly for social purposes. The Court of Appeal allowed the appeal from this decision, on the ground that the Commission was protected by a privative clause and that its decision was not patently unreasonable.

Held: The appeal should be allowed.

Both the Superior Court and the Court of Appeal held that the Commission's decision should be reviewed using a standard of patent unreasonableness. This Court should decide this case on the same basis. An analysis of the legislative provisions upon which the Commission's decision was based indicates that its decision was patently unreasonable. It is thus unnecessary to consider whether a standard of review more restrictive on the powers of the Commission would be appropriate.

While an activity consisting of dispensing professional services is subject to a business tax pursuant to s. 232 AMT, it may also be subject to an exemption under s. 236. This section provides exemptions for certain activities based on the purpose for which they are carried on, rather than their kind or nature. In this case, the fact that the services are professional clearly cannot in itself exclude them from the scope of a social purpose nor does the fact that they are of a legal nature. The Commission recognized that the appellant’s administrative office was eligible for the exemption provided for management activities in s. 236(7). The Commission should then have gone on to consider, as did the Superior Court, whether professional legal services for economically underprivileged persons are part of an activity carried on mainly for social purposes, and therefore whether they qualify for the exemption offered by para. (5). To hold that the services offered by the legal aid lawyers pursuant to the Legal Aid Act are not activities carried on for social purposes is untenable. The purpose of this Act as well as the purpose of legal aid bureaus established thereunder are mainly social in nature: the Legal Aid Act is intended to assist persons who are without sufficient financial means to exercise their rights and remedies. The fact that the legal services are dispensed by professionals (they could not be dispensed otherwise) does not belie the fact that these are non‑profit activities exercised mainly for a social purpose and therefore fall clearly into s. 236(5). The social purpose of the activity is also reflected in more specific terms in s. 236(7), which encompasses assistance to socially or economically underprivileged or oppressed persons. Further, the nature of the activity itself is targeted towards assisting people in their relationship with society. The professional legal services offered by a legal aid bureau should be exempted from a municipal business tax. No other reasonable interpretation of s. 236(5) is possible, and the Commission’s decision was therefore patently unreasonable.

Cases Cited

Referred to: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.

Statutes and Regulations Cited

Act respecting Municipal Taxation, R.S.Q., c. F‑2.1, ss. 232 [am. 1986, c. 34, s. 18], 236(5) [repl. 1987, c. 42, s. 12], (6) [idem], (7) [idem], 236.1 [idem].

Legal Aid Act, R.S.Q., c. A‑14, ss. 1(c), 2 [repl. 1982, c. 36, s. 1], 22, 29, 32.

APPEAL from a judgment of the Quebec Court of Appeal, [1994] Q.J. No. 737 (QL), J.E. 94‑1521, reversing a judgment of the Superior Court rendered on September 28, 1990, which allowed a motion in evocation against a decision of the Commission municipale du Québec, [1989] C.M.Q. 306, refusing a business tax exemption. Appeal allowed.

Bruno Meloche and Francis Meloche, for the appellant.

Patrick Théroux, for the respondent the city of Sherbrooke.

Jean‑Yves Bernard, for the respondent the Attorney General of Quebec.

The judgment of the Court was delivered by

Gonthier J. --

I - Introduction

1The present appeal raises a discrete point of administrative law concerning a decision of the Commission municipale du Québec (the "Commission") made in the exercise of its jurisdiction under the Act respecting Municipal Taxation, R.S.Q., c. F‑2.1 ("AMT"). The appellant is a regional legal aid corporation established pursuant to s. 22 of the Legal Aid Act, R.S.Q., c. A‑14, and offers legal aid services in the Eastern Townships region, pursuant to s. 29 of that Act. It rents office space in the respondent city of Sherbrooke, which is the location of its corporate seat; this office space houses the appellant's regional administrative office as well as its legal aid bureau serving the Sherbrooke area. The office space occupied by the appellant was placed on the roll of rental values for the city of Sherbrooke and payment of a business tax was requested for the 1987 fiscal year. The city of Sherbrooke requested payment of the tax separately from the administrative office of the appellant and from the legal aid bureau.

2On May 9, 1988, the appellant requested an exemption from this tax pursuant to ss. 236 and 236.1 AMT, on the grounds that the appellant's activities were non-profit and were included within the terms of paras. (5), (6) or (7) of s. 236 AMT. These paragraphs allow for business tax exemptions for activities listed therein which are, generally speaking, activities carried on for non-profit purposes. Section 236.1 AMT states that the activity in question must be "recognized" by the Commission in order for the person carrying it on to be exempt from the business tax for the purposes of paras. (5) to (7) of s. 236 AMT. On March 23, 1989, the Commission rendered two separate decisions pursuant to this request: one granted a tax exemption for the administrative office and the second refused the exemption for the legal aid bureau. The appellant applied for judicial review of the second decision before the Superior Court, which was granted, the Superior Court judge holding that the legal aid bureau should also benefit from the tax exemption. The Court of Appeal allowed an appeal of this decision, on the ground that the Commission was protected by a privative clause and that the decision of the Commission was not patently unreasonable.

II - Relevant Statutory Provisions

3The following sections of An Act respecting Municipal Taxation are reproduced in the version which was in force at the time that the request was originally presented to the Commission, on May 9, 1988:

232. A municipal corporation may impose and levy a business tax on any person entered on the roll of rental values carrying on, in the territory of the municipal corporation, an economic or administrative activity in matters of finance, trade, industry or services, a calling, an art, a profession or any other activity constituting a means of profit, gain or livelihood, whether or not the activity is carried on for lucrative purposes, except an employment or charge.

The tax is imposed for each place of business where such a person carries on such an activity.

The tax is based on the rental value of the place of business occupied for a purpose contemplated in the first paragraph.

A business tax imposed under the first paragraph for a particular municipal fiscal period remains imposed for subsequent municipal fiscal periods, until it is amended or repealed.

236. No business tax may be imposed with respect to

(5) an activity carried on without pecuniary gain, in an immovable used by the public, mainly for cultural, scientific, ecological, recreational, charitable, social or animal protection purposes;

(6) a management activity related to the pursuit of an activity carried on, in accordance with paragraph 5, for cultural, scientific, ecological, recreational, charitable or animal protection purposes even if the management activity is carried on in a separate immovable that is or is not used by the public;

(7) a management activity related to an activity carried on without pecuniary gain mainly for the purpose of defending the interests or rights of a group of persons formed on the basis of language, ethnic or national origin, age or a handicap, of fighting a form of illegal discrimination or of helping socially or economically underprivileged or oppressed persons;

236.1 Subject to section 236.2, an activity carried on in a place of business must be recognized by the Commission, after consultation with the municipal corporation, to be exempt from the business tax pursuant to paragraphs 5 to 7 of section 236.

Sections 204.2, 209 and 209.1, adapted as required, apply to a recognition under the first paragraph.

III - Judgments Below

Commission municipale du Québec

4The Commission handed down two decisions on March 23, 1989 in response to the request made by the appellant for a business tax exemption pursuant to ss. 236 and 236.1 AMT. In the first decision, with respect to the administrative office of the appellant, the Commission found that the activity exercised in the premises fell under s. 236(7): a management activity carried on without pecuniary gain for the purpose of helping economically underprivileged persons.

5The second decision was made with respect to the portion of the premises of the appellant occupied by the legal aid bureau: [1989] C.M.Q. 306. The Commission found that the services offered by the lawyers of the legal aid bureau were professional services of a legal character. The Commission found that this activity was not covered by any of the activities mentioned in s. 236(5), nor in the category of management activities listed in paras. (6) and (7) of s. 236. Therefore, the Commission held that the legal aid bureau was not entitled to a tax exemption.

Superior Court

6The appellant brought a motion in evocation before Galipeau J. of the Superior Court in order to quash the second decision made by the Commission with respect to the legal aid bureau only. Galipeau J. agreed with the Commission that the professional activities of a legal character carried on by the legal aid bureau did not fall in the category of management activities covered by paras. (6) and (7) of s. 236. However, he held that the Commission committed an error in law in holding that the activities of the legal aid bureau were not covered by s. 236(5). Galipeau J. was of the opinion that these activities were included in activities carried out without pecuniary gain mainly for social purposes. The legal aid workers offered services to economically disadvantaged persons, and were assimilable to social workers, who clearly worked to further social ends. Galipeau J. said that the Commission's decision must be based on reasonable grounds, and held in this case that the decision was patently unreasonable, and should be reversed.

Court of Appeal, [1994] Q.J. No. 737

7The Court of Appeal overturned the decision of Galipeau J. and restored the Commission's decision with respect to the legal aid bureau, delivering brief reasons. They held that the Commission was protected by a privative clause, and furthermore that its decision was not patently unreasonable, and that Galipeau J. therefore erred in substituting his own decision for that of the Commission.

IV - Issues

8A preliminary issue to the judicial review of a decision of an administrative tribunal or board is the standard of review applicable in the circumstances of the case. The courts below, applying a consistent line of decisions of the Court of Appeal of Quebec holding that the jurisdiction of the Commission is protected by a privative clause, held that the decision of the Commission should be reviewed using a standard of patent unreasonableness, according the highest amount of deference to the Commission. I am content to decide this case on the same basis. As I find for the reasons below that the decision of the Commission is patently unreasonable, it is unnecessary in this case to consider whether a standard of review more restrictive on the powers of the Commission would be appropriate. The following analysis, therefore, will focus on the reasonableness of the decision refusing to grant a business tax exemption to that portion of the office space rented by the appellant and occupied by its legal aid bureau.

V - Analysis

9The standard of review of patent unreasonableness was first articulated by Dickson J., as he then was, in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. The question he asks in that case, at p. 237, is the following:

... was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

10One of the factors which Dickson J. looked at in that case was whether the legislative provisions were ambiguous or whether they had an acknowledged "correct" interpretation. He found that the ambiguity of the provision in question was acknowledged and undoubted, and that it could not be said that the interpretation chosen by the Board was a patently unreasonable interpretation.

11Cory J. recently examined the standard of patent unreasonableness itself in some depth in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64:

What Constitutes a "Patently Unreasonable" Decision?

It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational.... Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

In CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, La Forest J. (Dickson C.J. concurring) laid out the strict test of review, at p. 1003:

Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function.

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.

12A decision of an administrative tribunal which is found by a court to be patently unreasonable warrants the intervention of that court. It is a very high standard which is required to be met. In the present case, the question which a reviewing court must answer can be framed as follows: Was the decision of the Commission not to grant a tax exemption for the activities undertaken in the legal aid bureau patently unreasonable such that it is evidently not in accordance with reason or good sense?

13I have stated in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1370, that in some cases the unreasonableness of a decision may be apparent without detailed examination of the record, while in others an in-depth analysis is required to determine the reasonable character of the decision. I believe the present appeal is an example of the former situation, and that the Commission's decision may be seen to be unreasonable following a brief analysis of the legislative provisions upon which the decision was based having regard to their context.

14The relevant legislative provisions are ss. 232 and 236 AMT. Section 232 grants authority to a municipality to “impose and levy a business tax on any person entered on the roll of rental values” carrying on an economic or administrative "activity" in a number of areas, including in matters of finance, trade, industry or "services". Section 232 also provides that this authority to impose a business tax applies with respect to activities carried on both for lucrative and for non-lucrative purposes. Section 236 derogates from this general grant of authority, saying that no business tax may be imposed with respect to a certain number of activities which are listed in that section. The activities listed there include activities carried on by the Crown, by Crown mandataries and by various corporations of a public nature, such as municipalities, school boards, colleges and universities, and establishments providing health and social services, among others. Exemptions are also granted to religious institutions for certain purposes, registered charities, non-profit cemeteries, agricultural exhibitions, and farms.

15Business tax exemptions are also granted, pursuant to paras. (5), (6) and (7) of s. 236, for activities carried on without pecuniary gain for cultural, scientific, ecological, recreational, charitable, social or animal protection purposes, and for management activities related to these activities. I will discuss the particularities of these paragraphs below. For now, it is important to note, firstly, that an activity is exempted from a business tax under these three paragraphs only after that activity has been recognized by the Commission as eligible for the exemption, pursuant to s. 236.1. The Commission must decide whether a particular activity is included within the list of activities mentioned in paras. (5) to (7).

16Secondly, persons requesting a business tax exemption under the other paragraphs of s. 236 are not required to obtain recognition of the Commission for that exemption. The exempted activities listed in those other sections are objectively identifiable as such because of the legal character or status of the person undertaking the activities. That is, Crown mandataries, colleges and universities, religious institutions, or registered charities are all identifiable as such by their nature or because their status is granted by law. The exemptions listed in paras. (5) to (7), however, are more generally worded, and some exercise of discretion is required to determine, for example, whether an activity is carried on mainly for cultural, scientific, or ecological purposes. This being said, the determination of whether an activity is eligible for a business tax exemption is not left up to the total discretion of the Commission. If an activity falls into the list of activities contained in paras. (5) to (7), then no business tax may be imposed. The opening line of s. 236 does not allow for any ambiguity. That section removes completely the jurisdiction of a municipality to impose a business tax on the activities listed therein.

17And thirdly, there is no limitation in the wording of s. 236 which indicates that the activities exempted from a business tax under that section are generically more specific than the activities subject to that tax under s. 232. The respondent city of Sherbrooke correctly points out that, under s. 232, a business tax may be imposed regardless of whether an activity is carried on for pecuniary gain or not. The respondent then goes on to say that professional legal services are therefore taxable whether or not they are carried on for pecuniary gain. The respondent ignores the s. 236 exemption, as if it did not apply at all to professional legal services. The respondent may be implying that, in so far as they are professional services, these activities are not subject to the exemption provided by s. 236. If this is the meaning of the respondent's argument, I would disagree with this distinction. Section 232 explicitly applies to an economic or administrative activity in matters of services or a profession. Section 236 provides exemptions for certain activities based on the purpose for which they are carried on. These exemptions are not based on their kind or their nature. There is no basis on which to argue that the kinds of activities which are exempted are in any way generically more specific than the kinds of activities which may be subject to taxation. Thus, professional legal services may be subject to the s. 236 exemption if they fall within the list of activities which are enumerated therein defined in terms of the purposes for which they are carried on.

18As I mentioned above, the Commission is required to determine whether a certain activity falls within the exemptions provided in paras. (5) to (7) of s. 236. A closer look at these three paragraphs is warranted. Paragraph (5) provides an exemption for an activity carried on without pecuniary gain mainly for cultural, scientific, ecological, recreational, charitable, social or animal protection purposes. Paragraph (6) provides an exemption for a management activity related to an activity carried in accordance with para. (5) for cultural, scientific, ecological, recreational, charitable or animal protection purposes. Paragraph (6) then ensures that management activities which are related to the activities set out in para. (5) are also exempted from any municipal business tax.

19However, the list of purposes in para. (5) is not reproduced fully in para. (6): social purposes has been left out of the latter list setting out the exemptions for management activities. The category of social purposes is picked up in para. (7), which provides an exemption for a management activity related to an activity carried on without pecuniary gain mainly for the purpose of defending the interests or rights of a group of persons formed on the basis of language, ethnic or national origin, age or a handicap, of fighting a form of illegal discrimination or of helping socially or economically underprivileged or oppressed persons.

20There is an evident logic in setting out the three paragraphs as the legislator has done. In my view, the intention was to provide an exemption from any municipal business tax for the activities listed in para. (5), and also to provide an exemption for management activities related to those activities. The exemption for management activities has been split into two paragraphs: para. (6) reproduces for the most part the list found in para. (5), and para. (7) particularizes the concept of "social purposes". Therefore, although para. (7) may not directly come into play in the present case, it is certainly useful as an aid in interpreting what is meant by the category of "social purposes" which is included in para. (5).

21The other legislation which is relevant to the determination of this case is the Legal Aid Act. The object of the decision which is the object of the present appeal is a legal aid bureau, established pursuant to s. 32 of that Act. The function of a legal aid bureau is to dispense legal services free of charge or at low cost to eligible persons who fall within its mandate. Criteria of eligibility are based on the income of the persons seeking legal assistance. The purposes of a legal aid bureau are set out in the Legal Aid Act. The very definition of "legal aid" in s. 1(c) is instructive as to the purposes of the Act:

"legal aid": every benefit granted under this act to an economically underprivileged person to facilitate access to the courts, professional services of an advocate or a notary and necessary information concerning his rights and obligations;

22And an "economically underprivileged person" is defined at s. 2 to mean any person who lacks sufficient financial means to assert a right, obtain legal counsel or retain the services of an advocate or a notary without depriving himself of necessary means of subsistence.

23With this legislative scheme in mind, let us now consider the two decisions made by the Commission. With respect to the administrative office, the Commission characterized the activity undertaken there as an administrative activity of a legal aid corporation offering the services of lawyers and notaries to economically underprivileged persons. This activity fulfils all the conditions of s. 236(7) AMT, and the Commission recognized its eligibility for a business tax exemption.

24With respect to the legal aid bureau, the Commission pointed out that an economically underprivileged person, after being granted legal aid by the appellant, is then referred either to a lawyer employed by the legal aid bureau or to a lawyer in private practice. The services offered by lawyers are professional services. The activity in question offered by the legal aid bureau is a professional activity of a legal character. The Commission concluded from this that the activity in question does not fall within the categories listed in any of paras. (5), (6) or (7) of s. 236 AMT.

25As I pointed out above, to say simply that the services in question are professional services of a legal character does not address the issue. An activity consisting of dispensing professional services is indeed subject to a business tax pursuant to s. 232 AMT, but it may also be subject to an exemption offered in s. 236. The fact that the services are professional clearly cannot in itself exclude them from the scope of a social purpose nor does the fact that they are of a legal nature. The Commission recognized that the regional administrative office was eligible for the exemption provided for management activities in s. 236(7). The Commission should then have gone on to consider whether professional legal services for economically underprivileged persons are part of an activity carried on mainly for social purposes, and therefore whether they qualify for the exemption offered by para. (5).

26This is exactly the exercise which was undertaken by the Superior Court judge, reviewing the Commission's decision. Galipeau J. set out the activities of the legal aid lawyers as follows: (1) they give out free information on people's rights and obligations; (2) they provide legal consultation to eligible persons; (3) they offer their professional services to eligible persons; (4) they refer eligible persons to a lawyer in private practice if that is their choice; (5) they become socially involved in the community, participating in various social information and education activities. Galipeau J. concluded that such services, offered by the legal aid lawyers to economically underprivileged persons in order to facilitate their access to courts, to professional legal services and to information concerning their rights and obligations, are necessarily social in nature.

27I am in complete agreement with the Superior Court judge on this question. To hold that such services as described by Galipeau J. offered pursuant to the Legal Aid Act are not an activity carried on for social purposes is untenable. The purpose of the Legal Aid Act as well as the purpose of legal aid bureaus established thereunder are mainly social in nature: the Act is intended to assist persons who are without sufficient financial means to exercise their rights and remedies. The fact that the legal services are dispensed by professionals (indeed, they could not be dispensed otherwise) does not belie the fact that these are non-profit activities exercised mainly for a social purpose and therefore fall clearly into s. 236(5).

28The social purpose of the activity is also reflected in more specific terms in s. 236(7) which encompasses assistance to socially or economically underprivileged or oppressed persons. This is not the only characteristic, however, which indicates that the activity is carried on for social purposes. The nature of the activity itself is targeted towards assisting people in their relationship with society. The activity is not purely private in nature, but relates to the relationships of individuals within the public sphere and to the relationships of individuals with the government at all levels. The professional legal services offered by the legal aid bureau are offered to people in need, specifically to economically underprivileged persons, as defined by the Legal Aid Act. The services are meant to assist eligible persons in exercising their legal rights and remedies, and therefore are inherently public in nature as they allow these persons to participate in society as legal actors. And the very fact that these services are funded out of the public purse is proof of a recognition by society that legal services are important to the social well-being of the community. Therefore, I conclude, as did Galipeau J., that professional legal services offered by a legal aid bureau are carried on mainly for social purposes, and should be exempted from a municipal business tax pursuant to s. 236(5).

29The fact that a legal aid bureau necessarily falls within the ambit of s. 236(5) is a conclusion which flows directly from both the Act respecting Municipal Taxation and the Legal Aid Act. I believe that no other reasonable interpretation of s. 236(5) is possible, and therefore that the decision of the Commission was patently unreasonable.

VI - Conclusion

30I conclude, therefore, that the Superior Court was justified in overturning the decision of the Commission. The legal aid bureau of the appellant should be recognized for the purposes of ss. 236 and 236.1 AMT to be exempt from the business tax imposed by the city of Sherbrooke. The Court of Appeal erred in overturning the decision of the Superior Court. I would allow the appeal and restore the judgment of the Superior Court, with costs to the appellant throughout as against the respondent, the city of Sherbrooke, only.