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Town of Métabetchouan v. Théberge, [1987] 2 S.C.R. 746

 

Cyrille Théberge, Charles Mathieu, Joachim Mathieu, Bertrand Hudon, Armand Albert, Jean‑Claude Tremblay, Fernand Bouchard, François Bouchard, Clément Voyer and Rosaire Plourde      Appellants

 

v.

 

Town of Métabetchouan                                                                    Respondent

 

and

 

Laval Fortin Ltée  Mis en cause

 

indexed as: théberge v. métabetchouan (town of)

 

File No.: 18458.

 

1987: October 21; 1987: December 17.

 


Present: Beetz, Estey, McIntyre, Lamer and Le Dain JJ.

 

on appeal from the court of appeal for quebec

 

                   Municipal law ‑‑ By‑laws ‑‑ By‑law relating to construction of municipal building and loan to pay cost ‑‑ By‑law approved by small majority of voters ‑‑ Legal delay between publication of poll notice and day of poll not observed ‑‑ Whether failure to observe this formal requirement invalidated poll and by‑law ‑‑ Cities and Towns Act, R.S.Q. 1964, c. 193, ss. 335, 399, 400, 593.

 

                   Appellants asked the Superior Court to invalidate by‑law No. 30‑77 of the town of Métabetchouan on the ground that the latter had infringed an imperative and public order provision of the Cities and Towns Act by failing to observe the minimum delay of fifteen days specified in s. 400 of that Act between the publication of notice of the poll and the day it was held. The disputed by‑law, which provided for construction of a municipal building and a loan to pay the cost of it, was approved by a three‑vote majority in a poll held only ten days after publication of the poll notice. The Superior Court dismissed the direct action in nullity and the Court of Appeal affirmed the judgment. This appeal is to determine whether failure to comply with the formal requirements of s. 400 of the Cities and Towns Act invalidates the poll.

 

                   Held: The appeal should be allowed.

 

                   The poll should be invalidated and the by‑law declared inoperative. Section 335 of the Cities and Towns Act, which expressly provides for cases in which a delay is not observed in an electoral proceeding, applies pursuant to s. 399 to a poll held to approve a by‑law. Section 335 states that no election shall be declared invalid simply by reason of failure to observe a specified delay, "unless it appear to the court that such non‑compliance may have affected the result of the election". In the case at bar, in view of the small majority obtained, it is clear that reducing the delay specified in s. 400 by five days could have affected the result of the vote. It follows that the poll is invalid and that the voters did not approve the loan by‑law. However, the by‑law is not void because it did not receive the approval required by law. Under sections 399(2) and 593 of the Cities and Towns Act, approval by the voters is an essential condition not for validity of the by‑law but for its coming into effect. So long as such approval has not been obtained the by‑law is valid but inoperative. Under section 400, such approval cannot be given more than ninety days after the by‑law was passed by the council. As this delay has expired, the by‑law can never be approved so as to make it effective.

 

Statutes and Regulations Cited

 

Cities and Towns Act, R.S.Q. 1964, c. 193, ss. 8, 335, 377, 385 [am. 1968, c. 55, s. 107], 399 [repl. 1968, c. 55, s. 110; am. 1969, c. 55, s. 20], 400 [am. 1968, c. 55, s. 111], 593 [repl. 1968, c. 55, s. 144; am. 1969, c. 55, s. 27; repl. 1975, c. 66, s. 26].

 

 

Authors Cited

 

Rousseau, Gilles. "Le vice de forme et le droit municipal" (1982), 23 C. de D. 406.

 

 

                   APPEAL from a judgment of the Quebec Court of Appeal rendered January 12, 1984, affirming a judgment of the Superior Court, J.E. 77‑146, which dismissed appellants' action in nullity. Appeal allowed.

 

                   André Bois and André Lemay, for the appellants.

 

                   Roger Banford, for the respondent.

                   English version of the judgment of the Court delivered by

 

1.                       Lamer J.‑‑The question is whether in the case at bar the failure to comply with the formal requirements of s. 400 of the Cities and Towns Act, R.S.Q. 1964, c. 193, invalidates the poll held by the town of Métabetchouan in the summer of 1977 to have one of its municipal by‑laws approved. In the opinion of the Quebec Superior Court and Court of Appeal it does not: hence the appeal by a group of private individuals to this Court.

 

Facts

 

2.                       To make provision for the construction of a municipal building and a loan to pay the cost of it ($800,000), the respondent on July 1, 1977 adopted by‑law No. 27‑77. One hundred and fifty‑nine people demanded that the by‑law be submitted to a secret poll, which was held the following August 8. The by‑law was rejected by a majority of seventeen votes. Two days after it was turned down, the municipality tabled by‑law No. 30‑77, to the same effect as the preceding one, but excluding the fittings ($41,500). One hundred and thirty people demanded a secret poll; public notice was given on August 26, 1977 that the poll would be held the following September 6, that is ten days later, contrary to the minimum delay of fifteen days specified in s. 400 of the Cities and Towns Act. The by‑law, which was first rejected by two votes, was declared to have been approved by a three‑vote majority following a judicial recount.

 

3.                       The evidence discloses that construction of the building in question was the principal concern of the population of Métabetchouan in the summer of 1977. Committees were formed both to promote adoption of the by‑law and to oppose it; their efforts to inform voters took on the dimensions of a [TRANSLATION]  "real electoral campaign", to use the words of the trial judge. Witnesses testified that the disputed by‑law and the date of the poll were well known; additionally, a significant number of voters took part in both polls (421 the first time and 507 the second time, out of a possible total of 905 voters). The witnesses called could not say that if the vote had been held five days later the result would have been different.

 

4.                       Appellants brought a direct action in nullity against by‑law No. 30‑77. They argued that the municipality had infringed an imperative and public order provision of the Cities and Towns Act by failing to observe the specified delay between the publication of notice of the poll and the day it was held; they also maintained that non‑compliance with the fifteen‑day delay specified by s. 400 could have affected the result of the poll. On November 2, 1977 they obtained a provisional injunction prohibiting construction of the building. A judgment of the Court of Appeal on December 13, 1977, however, stayed the interlocutory injunction pending the appeal and the building at issue in the disputed by‑law is by now built and occupied.

 

Judgments

 

5.                       Chouinard J. of the Superior Court dismissed the action in nullity against the municipal by‑law: J.E. 77‑146. Though he considered that the delay stated in s. 400 of the Cities and Towns Act is imperative, in his view the section is not a matter of public order. Unlike, for example, s. 385 of the Cities and Towns Act, the wording of s. 400 does not state that the by‑law is invalid if the section is not complied with. Additionally, s. 377 of the Cities and Towns Act provides for possible acquiescence in the requirements of a notice, which is not consistent with the concept of public order. Further, s. 8 of the Cities and Towns Act, which determines the conditions of an action based on omission of a formality, even an imperative one, also cannot be reconciled with the argument that s. 400 is a matter of public order. Chouinard J. noted that s. 400 does not state that the poll or the by‑law will be invalid, and concluded that the action in nullity could not be allowed as the evidence did not disclose any actual prejudice, flagrant injustice or excess of jurisdiction.

 

6.                       The Court of Appeal simply approved the reasons of Chouinard J. The reasoning of Chouinard J. undoubtedly reflects the way in which the parties submitted their arguments and their analysis of the issue. With respect, however, I consider that this reasoning is not appropriate since it does not take into account legislation which applies to the facts of the case at bar.

 

The Law

 

7.                       The municipal administration did not comply with a formality specified by the Act, namely the fifteen‑day delay mentioned in s. 400 of the Cities and Towns Act (now s. 386), which reads as follows:

 

                   400. The council or the mayor shall fix the date for the opening of the poll. Such date shall not be later than ninety days from the date of the passing of the by‑law by the council.

 

                   The clerk of the municipality shall, at least fifteen days before the day fixed, give public notice calling upon the persons qualified to vote, and indicating the days and place where the poll will be held.

 

Section 335 of the Cities and Towns Act (now s. 306) expressly provides for cases in which a delay is not observed in an electoral proceeding. It reads as follows:

 

                   335. No election shall be declared invalid by reason of non‑compliance with the provisions of this division regarding delays, unless it appear to the court that such non‑compliance may have affected the result of the election.

 

8.                       Section 335 is applicable to a poll held for the approval of a by‑law under s. 399(1) (now s. 385(1)) which reads as follows:

 

                   399. (1) When a by‑law is submitted for the approval of the persons of full age who are entered on the valuation roll in force as property‑owners or tenants and are Canadian citizens, or for the sole approval of those who are entered as property‑owners, the vote shall be taken by polling pursuant to the provisions governing elections in the municipality so far as they may be applicable and are not derogated from by the following provisions.

 

9.                       Since section 335 determines the effect of non‑compliance with a delay, this provision is, in my opinion, one pursuant to which a vote shall be taken within the meaning of s. 399(1). I cannot agree with the reasoning of appellants that s. 335 is inapplicable to the non‑compliance with a delay prescribed by s. 400 because the latter constitutes a formality of public order. Section 335 clearly provides that non‑compliance may result in invalidity, but that the poll remains valid when such non‑compliance could not have affected the result.

 

10.                     In other words, the Court must determine whether the result of the poll would have been different if the specified delay had been complied with. If the answer to this question is in the affirmative, there is no need to ask whether non‑compliance caused actual prejudice under s. 8 (now s. 11), which reads as follows:

 

                   8. No suit, defence or exception, founded upon the omission of any formality, even imperative, in any act of the council or of a municipal officer, shall prevail, unless the omission has caused actual prejudice or it be of a formality whose omission, according to the provisions of the law, would render null the proceeding from which it was omitted.

 

As section 335 is a special provision regarding non‑compliance with delays applicable to elections, it excludes the application of a general provision like s. 8. In any event, it would be hard in practice to conceive of a case where non‑compliance could have affected the result of an election without also causing actual prejudice.

 

11.                     If the poll is found invalid on this basis, the effect of this invalidity on the validity of the by‑law must then be determined. The poll allows the voters to approve or disapprove the by‑law adopted by the municipal council. If that approval is not given, the Act specifically states the consequences that will follow. Section 399(2) of the Cities and Towns Act provides as follows:

 

                   399. ...

 

                   (2) No by‑law submitted for the approval of the persons contemplated in paragraph 1 shall have effect unless it is approved by a majority of the persons who have voted or, if such persons are only those who are entered as property‑owners, by the majority of them in number and value who have voted. [Emphasis added.]

 

Section 593 of the Cities and Towns Act (now s. 556), which deals expressly with loan by‑laws, sets out the same rule:

 

                   593. Every by‑law ordering a loan, before coming into force and effect, must have been approved by the persons who are entered on the valuation roll in force as owners of taxable immoveables and, in the case of physical persons, who are of full age and are Canadian citizens, and also by the Minister of Municipal Affairs. [Emphasis added.]

 

12.                     Approval by the voters is thus an essential condition not for validity of the by‑law but for its coming into effect; so long as such approval has not been obtained, the by‑law, though valid, is inoperative and is not enforceable. This is in fact the view of Mr. Gilles Rousseau in his article titled "Le vice de forme et le droit municipal" (1982), 23 C. de D. 406, at p. 470:

 

[TRANSLATION]  ...an act which has not yet received the necessary approval is not an invalid act: it is simply an incomplete or provisional one, as the procedure for completing it has not been carried out; until approval is given the act has no effect and no legal consequences; . . . [Emphasis added.]

 

13.                     In short, if non‑compliance with a specified delay invalidates the poll, the voters did not approve the by‑law in accordance with the requirements of the Act. In such a case the by‑law is not invalid, simply inoperative. Under section 400 of the Cities and Towns Act, such approval cannot be given more than ninety days after the by‑law was passed.

 

Application to Facts of Case at Bar

 

14.                     Though they should have based their arguments on s. 335, appellants only mentioned it alternatively, and did not take the reasoning to its logical conclusion. They argued that as the delay specified in s. 400 of the Cities and Towns Act had been cut short by one‑third, it was probable that the result could have been different, but they added that as this delay was "of public order" the failure to observe it could not be rectified by s. 335. Though it did not refer expressly to this provision, respondent did have an answer for the argument based on s. 335. Both in its submission and in its plea, respondent contended that the date and purpose of the poll were well known to the taxpayers and a further delay would not have altered the outcome of the vote in any way.

 

15.                     In the case at bar the municipality did not observe the delay specified for setting the date of the poll. When the poll was taken, the by‑law was adopted by a three‑vote majority. In view of the small majority obtained, I think that reducing by five days the delay specified in s. 400 could have affected the result of the vote. Under section 335, therefore, the Court must conclude that the poll at issue was invalid.

 

16.                     As the poll was invalid it follows that the voters did not approve the loan by‑law. Under sections 399(2) and 593 of the Cities and Towns Act, the by‑law is of no effect and has never come into force. As the ninety‑day deadline imposed by s. 400 for holding the poll has expired, the by‑law can never be approved so as to come into force.

 

17.                     I am aware of the practical difficulties resulting from these findings in view of the fact that the municipal building which gave rise to the proceedings is now built and occupied, and the funds required for its construction have been in fact borrowed and, we are told, are half reimbursed. However, as a matter of law, a court has no way out in the case at bar. Remedies, if any, are not within the judiciary powers.

 

18.                     For these reasons I would allow the appeal, invalidate the poll held by respondent on September 6, 1977 and declare that by‑law No. 30‑77, adopted on August 15, 1977, is inoperative; the whole with costs.

 

                   Appeal allowed with costs.

 

                   Solicitors for the appellants: Tremblay, Bertrand, Morisset, Bois & Mignault, Ste‑Foy.

 

                   Solicitors for the respondent: Morency, Banford, Duchesne, Paradis, Dolbec & Tremblay, Alma.

 

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