This case arose following the municipal amalgamation undertaken
by the government of Québec earlier in the decade. The
decision disposes of two appeals. The first appellant, Mr.
Marcotte, is a citizen of Saint-Lambert who saw his property taxes
increase when his city was amalgamated to Longueuil. The second
appellant, Usinage Pouliot Inc., is a business from
Saint-Bruno-de-Montarville whose business tax also increased
following the amalgamation. The appellants contend that the bylaws
imposing taxes in 2003, 2004 and 2005 were null because they
exceeded the five per cent ceiling established by a series of
provisions in the city charter. On this basis, they filled motions
for "authorization" (called "certification" in
the common law provinces) to institute class actions in order to
have the bylaws quashed in four sectors of the new city and to have
the respondents refund the amounts paid. Both the Superior Court
and the Québec Court of Appeal rejected authorization on the
basis that a class action was an inappropriate recourse for a
request to quash a municipal bylaw.
The question before the Supreme Court was the following: Can a
class action be authorized in Québec where the petitioner
seeks to recover municipal taxes paid pursuant to an allegedly
unconstitutional municipal law? A narrow majority of the court
answered "no." Aside from their substantive differences,
the court split five to four over the proper approach to
Article 4.2 of the Québec Code of Civil
Procedure, which states that "the parties must ensure
that the proceedings they choose are proportionate, in terms of the
costs and time required, to the nature and ultimate purpose of the
action or application and to the complexity of the
Proportionality (Article 4.2 C.C.P.)
According to the majority view, a court hearing a motion for
authorization can exercise discretion independent from the four
conditions for authorization contained in Article 1003 C.C.P. if it
deems the proposed class action disproportionate. The majority adds
that from an administration of justice perspective, the principle
of proportionality casts serious doubt on the appropriateness of a
class action in which the petitioner is seeking to nullify a
municipal bylaw. The minority, for its part, maintains that the
purpose of Article 4.2 C.C.P. is to reinforce the authority of
the judge as a case manager. Accordingly, the principle of
proportionality should not be viewed as a fifth condition for
authorization, but rather as a general principle to be applied by
the judge in analyzing and applying each of these criteria.
In addition to its comments regarding Article 4.2 C.C.P.,
the majority agreed with the lower courts that a class action is
not an appropriate procedure for seeking to quash a municipal
bylaw. In his reasons, Mr. Justice LeBel explains that the
conclusions sought are unenforceable in the municipal context and
that the reimbursement of municipal taxes is not compatible with
the principles governing the restitution of payments set out in the
Civil Code of Québec. Furthermore, with regard to
the composition of the proposed class, the provisions regarding the
right to opt-out could not be respected because if the motion were
granted, it would apply to all the ratepayers independently of
their willingness to participate in the action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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