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SUPREME COURT OF CANADA
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Citation: Breslaw v. Montreal (City), 2009 SCC 44, [2009] 3 S.C.R. 131 |
Date: 20091008 Docket: 32369 |
Between:
Jon Breslaw
Appellant
and
City of Montreal
Respondent
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
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Reasons for Judgment: (paras. 1 to 10)
Concurring Reasons: (paras. 11 to 29)
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LeBel J. (Fish, Abella, Charron and Rothstein JJ. concurring)
Deschamps J. (McLachlin C.J. and Binnie and Cromwell JJ. concurring) |
______________________________
Breslaw v. Montreal (City), 2009 SCC 44, [2009] 3 S.C.R. 131
Jon Breslaw Appellant
v.
City of Montreal Respondent
Indexed as: Breslaw v. Montreal (City)
Neutral citation: 2009 SCC 44.
File No.: 32369.
2009: January 19; 2009: October 8.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Civil procedure — Class action — Conditions for authorizing action — Application for authorization to institute class action in order to seek declaration that municipal by‑law imposing property taxes are null and claim refund of tax overpayments — Whether class action should be authorized — Code of Civil Procedure, R.S.Q., c. C‑25, art. 1003.
After the amalgamation of the municipalities on the island of Montréal, the Charter of Ville de Montréal provided, in order to gradually achieve equality in taxation among the amalgamated sectors, for a ceiling on yearly increases in the tax burden of the aggregate of the units of assessment in each sector. B, a resident of one of the amalgamated sectors that has since regained its autonomy, argued that the increases in the property tax in 2004 and 2005 exceeded the 5% ceiling in many sectors of Montréal. He applied for authorization to institute a class action on behalf of those affected by the excessive increase in which he intended to seek declarations that the municipal by‑laws concerning the tax burden were null and that the by‑laws concerning taxes were “inconsistent” with s. 150.1 of the Charter, and to ask for a refund of the property tax overpayments. The Superior Court denied the requested authorization on the basis that the facts alleged did not seem to justify the conclusions sought (art. 1003(b) C.C.P.). The Court of Appeal affirmed that judgment.
Held: The appeal should be dismissed.
Per LeBel, Fish, Abella, Charron and Rothstein JJ.: The facts alleged by B do not seem to justify the conclusions being sought, as the motion for authorization does not contain executory conclusions. A declaration of inconsistency would not give rise at this point to a liquid and exigible claim for the members of the group. Such a claim could only be established at the end of a new fiscal and budgetary exercise. Finally, the composition of the group presents the same difficulties as in the context of an action for declarations that municipal by‑laws are null. [5] [8‑9]
Per McLachlin C.J. and Binnie, Deschamps and Cromwell JJ.: It can be seen from the Superior Court judge’s reasons that he exercised his discretion under the C.C.P. to determine whether the action should be authorized and decided that the conclusion being sought did not flow from the alleged facts. This main reason was sufficient to justify a refusal to authorize a class action. If a public body acts outside the limits imposed by its enabling statute, the unavoidable consequence is that its act is null. But if the act is not declared to be null, it is presumed to be valid and its requirements must be satisfied. The taxes were imposed under provisions B was not asking the court to quash. A simple declaration of inconsistency would therefore not be a sufficient basis for granting a partial refund. If B’s argument were accepted, the judge would have to supplant the city, and indeed the government, in order to establish a lawful tax amount. That is not a matter for the courts. [11] [15] [23‑28]
However, the judge at first instance erred in asserting that an individual action could have the same result as a class action, since success in an individual action does not apply in respect of all the other ratepayers where a monetary remedy is sought. In addition, a class action averts the need to bring thousands of individual actions. Finally, the discretion referred to in art. 4.2 C.C.P. is exercised in the course of the analysis of the four conditions for authorization set out in art. 1003 C.C.P. and cannot be regarded as a fifth condition for authorization of a class action. [22] [27]
Cases Cited
By LeBel J.
Referred to: Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, aff’g 2007 QCCA 866, [2007] R.J.Q. 1467.
By Deschamps J.
Referred to: Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Francœur v. Municipalité régionale de comté d’Acton, [1985] R.D.J. 511; Comité de citoyens et d’action municipale de St‑Césaire v. Ville de St‑Césaire, [1986] R.J.Q. 1061; Gravel v. Corporation municipale de la paroisse de La Plaine, [1988] R.D.J. 60; Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349; Hoffmann — La Roche v. Secretary of State for Trade and Industry, [1974] 2 All E.R. 1128; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392.
Statutes and Regulations Cited
Act to reform the municipal territorial organization of the metropolitan regions of Montréal, Québec and the Outaouais, S.Q. 2000, c. 56, s. 1.
By‑law concerning taxes (fiscal 2004), City of Montréal, No. 03‑201, s. 3.
By‑law concerning taxes (fiscal 2005), City of Montréal, No. 04‑166, s. 3.
By‑law concerning the tax burden (fiscal 2004), City of Montréal, No. 03‑204, s. 2.
By‑law concerning the tax burden (fiscal 2005), City of Montréal, No. 04‑169. s. 2.
Charter of Ville de Montréal, R.S.Q., c. C‑11.4, ss. 5, 150.1, 150.4, 150.5.
Code of Civil Procedure, R.S.Q., c. C‑25, ss. 4.2, 59, 67, 1003, 1005.
Authors Cited
Pépin, Gilles, et Yvon Ouellette. Principes de contentieux administratif, 2e ed. Cowansville, Qué.: Yvon Blais, 1982.
APPEAL from a judgment of the Quebec Court of Appeal (Nuss, Morissette and Côté JJ.A.), 2007 QCCA 1542, [2007] Q.J. No. 12620 (QL), 2007 CarswellQue 10170, affirming a decision by Lacoursière J., 2006 QCCS 5503, [2007] R.J.Q. 318, [2006] Q.J. No. 13747 (QL). Appeal dismissed.
Douglas C. Mitchell and Katheryne A. Desfossés, for the appellant.
André Durocher, Véronique Belpaire and Annie Gerbeau, for the respondent.
English version of the judgment of LeBel, Fish, Abella, Charron and Rothstein JJ. delivered by
LeBel J. —
I. Introduction
[1] In this appeal, as in the cases of Marcotte v. Longueuil (City) and Usinage Pouliot Inc. v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, this Court must consider some of the legal issues raised by the forced amalgamations of Quebec municipalities that took place in the early 2000s. The amalgamation process had a significant impact on the island of Montréal. For a few years, all the municipalities on the island were amalgamated and the island consisted of a single city known as Ville de Montréal. The new city comprised all the municipalities existing on the island up to that time, together with the Communauté urbaine de Montréal (Act to reform the municipal territorial organization of the metropolitan regions of Montréal, Québec and the Outaouais, S.Q. 2000, c. 56, s. 1; Charter of Ville de Montréal, R.S.Q., c. C‑11.4, s. 5). After the events that gave rise to this dispute, the new City of Montréal was partially dissolved, and some of the municipalities that had been amalgamated were reconstituted.
[2] The issue now before this Court emerged before this partial dissolution. It stems from reforms to the tax systems of the amalgamated municipalities. The legislature wanted to gradually achieve equality in taxation among the amalgamated sectors of the new City of Montréal over a period of 20 years. During this transitional period, the Charter of Ville de Montréal provided for a ceiling, in each sector corresponding to the territory of one of the amalgamated municipalities, on yearly increases in the tax burden of the aggregate of the units of assessment. This ceiling applied, inter alia, to the revenues derived from the general property tax:
150.1. The city may, for a fiscal year, fix any general property tax rate in such manner that, in relation to the preceding fiscal year, the increase in the tax burden borne by the aggregate of the units of assessment situated in a sector and in respect of which all or part of the rate applies is not greater than 5%.
This provision is similar to the ones in issue in Marcotte and Usinage Pouliot. The appellant submits that the city has violated it.
II. Origin of the Case
[3] The appellant, Jon Breslaw, a resident of the City of Westmount — which became one of the sectors of the City of Montréal and has since regained its autonomy — contested the respondent’s application of s. 150.1 in the 2004 and 2005 fiscal years. In his opinion, the increases in the property tax for those years had exceeded the 5% ceiling in many sectors of Montréal. He accordingly applied for authorization to institute a class action on behalf of those affected by the excessive increase. According to Mr. Breslaw’s original motion for authorization, the group would comprise all residents of those sectors where the property tax increase had allegedly exceeded the legal maximum. In his conclusions, he asked for the municipal by‑law concerning the tax burden for 2004 to be quashed, for a declaration that increases in the tax burden of units of assessment that exceeded the 5% maximum were null, and for an order that the city refund the group’s members for property tax overpayments in 2004 and 2005.
[4] At the time of presentation of the motion for authorization of the class action, significant amendments authorized by the Superior Court were made to the description of the group and to the conclusions. First of all, the amendments included a more precise description of the sectors concerned and limited the group to ratepayers in the 15 sectors of the city where the increase in the general property tax had allegedly exceeded 5% in 2004 and/or 2005. Next, in addition to seeking a declaration that the municipal by‑law concerning the tax burden was null, the appellant asked in his motion that the by‑law concerning taxes be declared to be [translation] “inconsistent” with s. 150.1 of the Charter of Ville de Montréal. Finally, in his conclusions, the appellant asked for a refund of the property tax overpayments. In this respect, his conclusions differ substantially from those of the appellants in Marcotte and Usinage Pouliot, who would ask the court to quash the by‑laws authorizing the collection of the taxes and to order that the taxes collected in the sectors at issue be refunded in full.
III. Judicial History
A. Quebec Superior Court
[5] Lacoursière J. dismissed Mr. Breslaw’s motion for authorization to institute a class action: 2006 QCCS 5503, [2006] Q.J. No. 13747 (QL). In his view, according to what he considered to be a well‑established line of authority and to the very words of Quebec’s Code of Civil Procedure, R.S.Q., c. C‑25, his role at the authorization stage was limited to determining whether the motion met the four conditions set out in art. 1003 of the Code. He held that, although the motion did meet the other requirements of art. 1003, it was inconsistent with art. 1003(b), as the facts alleged did not seem to justify the conclusions sought. In other words, Mr. Breslaw had not made out a prima facie case, as required by the Code of Civil Procedure. In Lacoursière J.’s opinion, Mr. Breslaw’s reasoning did not lead to a refund of the property taxes (paras. 84‑87). The declaration of inconsistency he sought could not place the city under an obligation to refund money to the group members. The judge stated that he could not on his own initiative amend so as to enhance the applicant’s conclusions at the authorization stage (paras. 97‑98). He added that in the circumstances, a class action did not offer more advantages than an individual action in nullity. On this point, he referred to the case law of the Quebec Court of Appeal, which I summarize in my reasons in Marcotte and Usinage Pouliot.
B. Quebec Court of Appeal (Nuss, Morissette and Côté JJ.A.)
[6] The Court of Appeal dismissed Mr. Breslaw’s appeal: 2007 QCCA 1542, [2007] Q.J. No. 12620 (QL). It held that the principles enunciated in the judgment in Marcotte v. Longueuil (Ville de), 2007 QCCA 866, [2007] R.J.Q. 1467, were dispositive of the appeal. A class action was not an option. Like the judge at first instance, the Court of Appeal noted that the conclusions being sought were not executory.
IV. Analysis
[7] The appeal raises questions similar to those I discuss in my reasons in Marcotte and Usinage Pouliot. The only difference is the appellant’s request, in the conclusions he seeks in the motion for authorization, that the municipal by‑laws imposing the property taxes be declared to be inconsistent with the Charter of Ville de Montréal.
[8] I acknowledge that the conclusions set out in the appellant’s motion for authorization represent a serious — and interesting — effort to resolve the difficulties inherent in conclusions in which an applicant seeks simply to quash municipal tax by‑laws and obtain a refund of the amounts collected under them. The appellant sought to introduce nuances into the conclusions so as to reflect the facts that only an overpayment was in issue and that the group members had received services from the city in exchange for their property taxes. Nevertheless, it seems to me that Lacoursière J. was correct in holding that the motion for authorization did not contain executory conclusions. This on its own would suffice to dispose of the appeal.
[9] Even so, I believe it will be helpful to refer also to my reasons in Marcotte and Usinage Pouliot. The composition of the group presents the same difficulties as in the context of an action for declarations that municipal by‑laws are null. Also, the only possible result of a declaration of inconsistency would be to require the city to recalculate its budget and its taxes, including the amount of the property tax. The conclusions of inconsistency would not give rise at this point to a liquid and exigible claim. Such a claim could only be established at the end of a new fiscal and budgetary exercise.
V. Conclusion
[10] For these reasons, I would dismiss the appeal with costs.
English version of the reasons of McLachlin C.J. and Binnie, Deschamps and Cromwell JJ. delivered by
[11] Deschamps J. — This appeal raises the same question of law as Marcotte v. Longueuil (City) and Usinage Pouliot Inc. v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65. This Court must decide whether the courts may, in exercising their discretion to authorize or refuse to authorize a class action, grant municipalities immunity from the recovery of wrongfully collected taxes in light of the fact that the class action is intended to facilitate access to justice. In my reasons in Marcotte and Usinage Pouliot, I say that they may not. In the instant case, it can be seen from the Superior Court judge’s reasons (2006 QCCS 5503, [2006] Q.J. No. 13747 (QL)) that he exercised his discretion under the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”), to determine whether the action should be authorized. He held that one of the conditions had not been met. It was only on an additional basis that he considered and accepted the argument, based on Francœur v. Municipalité régionale de comté d’Acton, [1985] R.D.J. 511 (C.A.), Comité de citoyens et d’action municipale de St‑Césaire v. Ville de St‑Césaire, [1986] R.J.Q. 1061 (C.A.), and Gravel v. Corporation municipale de la paroisse de La Plaine, [1988] R.D.J. 60 (C.A.), that the class action is not an “appropriate” procedure for seeking declarations that municipal by‑laws are null. In the circumstances, it would be unwise to intervene. I would accordingly dismiss the appeal.
[12] As was the case for the City of Longueuil, the amendments to the Charter of Ville de Montréal, R.S.Q., c. C‑11.4 (which came into force on January 1, 2002), resulted from the enactment of the Act to reform the municipal territorial organization of the metropolitan regions of Montréal, Québec and the Outaouais, S.Q. 2000, c. 56. Under that Act, the respondent, the City of Montréal (“Montréal”), replaced 28 municipalities, including Westmount, where Mr. Breslaw, the appellant in this appeal, resides. Like the appellants in Marcotte and Usinage Pouliot, Mr. Breslaw submits that the taxation power was not exercised lawfully. His action has a different basis, however.
[13] In his motion to institute proceedings in which he applied for authorization to bring a class action, Mr. Breslaw submitted that certain by‑laws concerning the tax burden were ultra vires. According to s. 150.1 of the Charter of Ville de Montréal, Montréal may increase the property tax rate for a sector only if the increase in the tax burden does not exceed 5%. Section 150.4 provides that where a tax increase in relation to the preceding fiscal year does not result solely from the constitution of the new city, the 5% maximum applies only in respect of the part of the increase that does result from its constitution. And s. 150.5, para. 2, provides that the government may, by regulation, determine the only cases in which an increase is deemed not to result from the constitution of the new city.
[14] Montréal adopted By‑law No. 03‑204, the By‑law concerning the tax burden (fiscal 2004), and By‑law No. 04‑169, the By‑law concerning the tax burden (fiscal 2005); in each of them, s. 2 identifies the expenditures that result from the constitution of the new city and those that are not included in the calculation of the ceiling set in s. 150.1. Mr. Breslaw argued that s. 2 of each of these by‑laws was ultra vires, because only the government could determine which increases were related to the constitution of the new city. Thus, although the increase in the tax burden appeared to be consistent with s. 150.1 because it was less than 5%, in reality it was not consistent with that section, because Montréal had made adjustments that it did not have the authority to make. The appellant accordingly asked for a declaration that the provisions in question were null and for a refund of the taxes paid in excess — if the city’s adjustments were disregarded — of the 5% limit.
[15] At first instance, Montréal submitted that even though Mr. Breslaw’s argument was valid, the conclusion he sought did not flow from the alleged facts, because the taxes had been imposed not under the by‑laws concerning the tax burden, but under provisions he was not asking the court to quash, namely s. 3 of the By‑law concerning taxes (fiscal 2004), No. 03‑201, and s. 3 of the By‑law concerning taxes (fiscal 2005), No. 04‑166. Absent a declaration that the provisions imposing the taxes were null, these provisions were valid. In response to this argument by Montréal, Mr. Breslaw amended his pleadings. But instead of seeking a declaration that the by‑laws concerning taxes were null, he asked for a declaration that the provisions authorizing Montréal to collect the taxes were [translation] “inconsistent” with s. 150.5 of the Charter of Ville de Montréal. He requested, for each of the members of the proposed class action group, a refund of the property tax overpayments, as opposed to a full refund of all property taxes paid. In his own case, the amounts in issue were $560 for 2004 and $753 for 2005.
[16] Thus, Mr. Breslaw’s action is different from those of the appellants in Marcotte and Usinage Pouliot, not only because the legal basis for the excess of jurisdiction is not the same, but also because Mr. Breslaw is asking neither that the by‑laws imposing the taxes be quashed nor that all the taxes paid be refunded. Moreover, whereas in Marcotte and Usinage Pouliot neither the Superior Court nor the Court of Appeal considered in detail the conditions set out in art. 1003 C.C.P. for authorizing the institution of a class action, in the instant case, Lacoursière J., the Superior Court judge, reviewed those conditions as well as the scope and timing of the exercise of his discretion in this regard.
[17] On the basis of the comments of Pelletier J.A. in Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349, Lacoursière J. held that his discretion had to be exercised while reviewing each of the four conditions set out in the Code of Civil Procedure and not as a distinct preliminary stage. Although he did not explicitly mention art. 4.2 C.C.P., there is no question that the discretion he referred to was the one provided for there, since Pelletier J.A. himself had mentioned it in Agropur. Lacoursière J. then reviewed the conditions for authorizing a class action. He found that the questions of law or fact were sufficiently identical, similar or related; that the composition of the group made the application of art. 59 or 67 C.C.P. impracticable; and that the proposed representative was in a position to represent the members of the group adequately. However, he found that the facts alleged did not seem to justify the conclusions sought.
[18] According to Lacoursière J., the facts alleged by Mr. Breslaw did not lead to the conclusion being sought: the refund of an overpayment. He saw this as a problem of legal logic. If a provision has not been adopted in conformity with its enabling statute but has not been declared to be null, this cannot then be remedied by a declaration of inconsistency. The judge rejected Mr. Breslaw’s suggestion that the court could amend his conclusions to make them legally acceptable. In Lacoursière J.’s view, art. 1005 C.C.P., pursuant to which the judge may identify the conclusions sought, did not permit the court to substitute its own conclusions for those of the litigants:
[translation] The article does not confer on the Court the discretion to substitute its own conclusion for the one explicitly set out on the application for authorization in order to further the remedy sought, which in the present case is a recovery of taxes.
This is all the more true since the conclusion that the Applicant asks the Court to reformulate, if appropriate, is the very legal basis of the monetary remedy he seeks, namely, the recovery of taxes. Finding that the Court has the power to reformulate this conclusion would be tantamount to distorting and altering the meaning of article 1003(b) [C.C.P.].
It is worth noting that the Applicant, who was ably represented, chose not to suggest an alternative formulation to the conclusion sought with respect to the Tax By‑laws. The Court cannot do so in his place.
Consequently, the legal syllogism that the Applicant proposes, which is based on the alleged facts, does not justify the recovery of taxes, the remedy he seeks for the members of the group. [paras. 98‑101]
[19] The judge added that [translation] “the Court, . . . relying on its discretion in its analysis of the conditions set out in article 1003 C.C.P., is of the view that a class action is not an appropriate vehicle”, because “[t]he recovery of taxes sought by the Applicant could easily be obtained through an individual action which concluded that the municipal by‑law at the origin of the property tax was unlawful” (paras. 102‑3). He accordingly dismissed the application.
[20] The Court of Appeal did not distinguish the instant case from Marcotte, and it referred to its reasons in that case (2007 QCCA 1542, [2007] Q.J. No. 12620 (QL)).
[21] Mr. Breslaw argues that whether his conclusions are appropriate should be determined at trial and not at the authorization stage. He submits that he limited his conclusions to a declaration of inconsistency because he wanted to suggest an approach that is tailored to the specific facts of the case and would make the recovery of taxes possible without having the perverse effect that would flow from a conclusion of nullity. In his submission, the argument that the by‑law must be declared to be null before a declaration of inconsistency can be obtained is a “technical” one.
Analysis
[22] For the reasons I give in Marcotte and Usinage Pouliot, I agree with the Superior Court judge in the instant case as regards the timing and scope of the exercise of the discretion referred to in art. 4.2 C.C.P. This discretion is exercised in the course of the analysis of the four conditions for authorization set out in art. 1003 C.C.P. It cannot be regarded as a fifth condition for authorization of a class action. Article 4.2 C.C.P. does not establish a free‑standing discretion. The discretion must be exercised in the context of the proceeding before the judge.
[23] I also agree with the Superior Court judge that the appellant’s legal syllogism is flawed. If a public body acts outside the limits imposed by its enabling statute, the unavoidable consequence is that its act is null. But if the act is not declared to be null, it is presumed to be valid and its requirements must be satisfied: G. Pépin and Y. Ouellette, Principes de contentieux administratif (2nd ed. 1982), at p. 280; Hoffmann — La Roche v. Secretary of State for Trade and Industry, [1974] 2 All E.R. 1128 (H.L.), at pp. 1153‑54. A court may not take the place of the public body and make a decision that body should have made, especially where setting the amount of taxes is concerned.
[24] The appellant seeks only a declaration of inconsistency, as he considers some of the taxes imposed and collected to be valid. Lacoursière J. rightly observed that a simple declaration of inconsistency would not be a sufficient basis for the remedy — a partial refund — being sought. In this Court, the appellant seeks the same conclusion, which he describes as “creative”. In his opinion, a declaration of nullity would have “the perverse effect of annulling the collection of all taxes collected by the Respondent, including taxes validly collected and paid” (factum, at para. 73). Should the conclusion be found to be inappropriate, the appellant would like to leave it to the trial judge to reframe it. As in the Superior Court, he has not offered to do so himself. Moreover, this is consistent with his position that, since a portion of the taxes paid is valid, he does not wish to “impoverish the Respondent any more than [is] legally justified” (para. 78).
[25] In St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, this Court held that judges hearing class actions have a broad latitude in drafting conclusions capable of providing group members with an adequate remedy. Judges hearing motions for authorization have a similar power under art. 1005 C.C.P. However, the exercise of this power must have a valid legal basis, and it cannot be used to modify the action.
[26] The appellant no doubt had reasons for not asking that the by‑laws be quashed. One of them can be inferred from the proceedings in Marcotte and Usinage Pouliot. If the appellant had asked that the by‑laws be quashed, the amount of the refund claim would have corresponded to the total of the property tax paid. The appellant refrained from seeking this conclusion in the instant case. He wanted to limit his claim to the amount of the overpayment. But if the appellant’s argument were accepted, the judge would have to supplant the city, and indeed the government, in order to establish a lawful tax amount. That is not a matter for the courts. As can be seen, the appellant’s choice is based on a strategy decision that goes to the substance of his case. This would not amount to a simple reframing of the conclusions. Furthermore, if Lacoursière J. had undertaken to amend the conclusions, it would have been necessary to reframe them all, including the requested declaration of inconsistency and the monetary claim. Pointing out that Mr. Breslaw was ably represented, the judge found that it would be inappropriate for him to take Mr. Breslaw’s place in recasting the legal basis of the claim and the conclusions. He relied, inter alia, on the fact that counsel for Mr. Breslaw had refused to submit an alternative conclusion entailing a declaration that the by‑law authorizing the taxes was null (para. 100). I have difficulty seeing how this Court could interfere with the judge’s exercise of this discretion.
[27] Lacoursière J. also mentioned, as an additional reason, that an individual action for the recovery of taxes collected pursuant to unlawful municipal by‑laws could produce the same outcome for all the aggrieved ratepayers, at a lower cost and without the inherent complexity of a class action. On this point, it is my opinion that the judge failed to consider the fact that a class action averts the need to bring thousands of individual actions. As I explain in Marcotte and Usinage Pouliot, success in an individual action does not apply in respect of all the other ratepayers where a monetary remedy is sought. The judge therefore erred in asserting that an individual action could have the same result as a class action. Moreover, although he made this additional comment while discussing the relationship between the facts alleged and the conclusions sought, it is hard to see a connection between his comment and this condition for authorizing a class action. Article 1003(b) requires the court to determine whether, from a legal standpoint, the conclusions being sought can follow from the alleged facts, not whether the same conclusions might be granted in an individual action. What must be done is to determine not whether the action is appropriate, but whether the facts alleged in the motion may, prima facie, justify the conclusions sought. This is a question that goes to substance, not to procedure.
[28] Although I do not agree with this additional reason, the main reason given by the Superior Court judge was sufficient to justify his refusal to authorize a class action.
[29] For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Irving Mitchell Kalichman, Montréal.
Solicitors for the respondent: Fasken Martineau DuMoulin, Montréal.