Vachon v. Attorney General (Quebec)

Civil procedure—Action to have a section of the Social Aid Regulation declared void—Superintending and reforming power of the Superior Court—Choice of plaintiff’s remedy—Evocation necessary for staying order only—Nullity for procedural defect—Social Aid Regulation, O.C 5581-75 of Dec. 17, 1975, (1975) 107 O.G. II 6455 as am., ss. 3.01 and 3.07(i)—Code of Civil Procedure, arts. 2, 33, 110, 165, 834, 846, 847, 848.

Each of the two appellants brought an action in the Superior Court, in accordance with art. 33 C.C.P., to have declared void para. (i) of s. 3.07 of the Social Aid Regulation, which provides that aid for the ordinary needs of an individual capable of working and less than thirty years of age cannot exceed $85 a month, while s. 3.01 of the same Regulation allows the needs of an individual at $217 a month ($235 after January 1, 1977). They also prayed that respondent be ordered to pay the difference between the benefits received and those they would have received under s. 3.01. The Superior Court maintained these conclusions, in two judgments rendered the same day. The Court of Appeal held that plaintiffs should have proceeded by evocation under art. 846 C.C.P., and it reversed the judgments of the Superior Court without ruling on the merits. Hence the appeal to this Court.

Held: The appeals should be allowed and both cases returned to the Court of Appeal for a decision on the merits.

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By providing in art. 33 C.C.P. that the superintending and reforming power shall be exercised in such manner and form as provided by law, the legislator did not close the door to the ordinary remedy of an action at law. Article 846 C.C.P. is in permissive, not in mandatory, form. The litigant who does not need a stay of proceedings or wish to paralyse the administrative process is not obliged to resort to the procedure of evocation. If he is merely seeking to have a regulatory provision declared void, there is nothing to prevent him from proceeding by action in accordance with the general rule stated in art. 110 C.C.P. The theory of nullity for formal defects, elaborated in the cases on which the decisions in question are based, is contrary to the principles of the Code of Civil Procedure. The distinction between the action in nullity and the application for evocation, as it comes within the procedure by action or the motion for a declaratory judgment, is not a rule of public order. Even assuming the authorization of a judge of the Superior Court to be mandatory for the issuance of a writ, the judgments maintaining the two actions necessarily covered this absence of authorization.

Cité de Trois-Rivières v. Brière, [1974] C.A. 82; Séminaire St-François de Cap-Rouge v. Yaccarini, [1973] C.A. 713, not followed; City of Chicoutimi v. Séminaire de Chicoutimi, [1970] C.A. 413, aff. [1973] S.C.R. 681; Duquet v. Town of Ste-Agathe, [1977] 2 S.C.R. 1132, followed; Three Rivers Boatman Ltd. v. Canada Labour Relations Board, [1969] S.C.R. 607; C.N. v. Trudeau, [1962] S.C.R. 398; Basarsky v. Quinlan, [1972] S.C.R. 380; Ladouceur v. Howarth, [1974] S.C.R. 1111; Witco Chemical v. Oakville, [1975] 1 S.C.R. 273; Leesona v. Consolidated Textile Mills et al., [1978] 2 S.C.R. 2; Cité de Pont Viau v. Gauthier Mfg. Ltd., [1978] 2 S.C.R. 516, referred to.

APPEALS against two decisions of the Court of Appeal, reversing two judgments of the Superior Court[1]. Appeals allowed.

André Morissette, for the appellants.

Jean-Yves Bernard and Bernard Flynn, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—These two appeals, brought by leave of this Court, are from decisions of the Court

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of Appeal of the province of Quebec which reversed the judgments of Jean-Louis Péloquin J., of the Superior Court, maintaining appellants’ declaratory actions.

The appellants are single persons who were allowed social aid in accordance with the Social Aid Act (Statutes of Quebec 1969, c. 63, as amended). By s. 3.01 of the Regulation enacted by Order in Council pursuant to this Act, the ordinary needs of an individual are allowed at $217 a month up to January 1, 1977 and $235 a month after that date. However, the social aid granted each of the appellants was reduced to $85 a month as a consequence of para. (i) of s. 3.07:

3.07 Aid for ordinary needs shall not exceed:

(i) $85 per month, in the case of an individual capable of working and less than thirty (30) years of age;

By their actions appellants submitted that this provision is ultra vires, discriminatory and unreasonable; they prayed that it be declared void and that defendant, the Attorney General of the Province of Quebec representing Her Majesty the Queen, be ordered to pay them the difference between the benefits they did receive and those they would have received under s. 3.01, from the time the action was instituted until judgment was rendered. These two conclusions were maintained by judgments of the Superior Court, dated May 25, 1977.

The decision of the Court of Appeal dated March 20, 1978, by Montgomery, Dubé and Paré JJ.A., reversed the judgments of the Superior Court and dismissed the actions on the following grounds:

[TRANSLATION] WHEREAS the Social Aid Act, in ss. 27 to 29 inclusive, lays down a procedure to be followed for the review of decisions rendered in accordance with that Act;

WHEREAS s. 42 of the Act provides for an appeal to the Social Affairs Commission from all decisions rendered on an application, even on review;

WHEREAS decisions rendered on an original application or on review or appeal are at least decisions of a quasi-judicial nature, affecting the rights of the person making the application;

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WHEREAS accordingly these are decisions rendered by quasi-judicial tribunals over which the Superior Court has a right of reform or review in the cases specified in art. 846 C.C.P.;

WHEREAS art. 33 C.C.P., on which respondent based its action, authorizes the remedy “in such manner and form as by law provided”;

WHEREAS when a person seeks the review of a decision rendered by a quasi-judicial tribunal on account of the nullity of the regulation on which that decision is based, art. 846(2) C.C.P. must be applied;

WHEREAS this Court has held on several occasions that a direct action in nullity may no longer be brought in such cases, since the new Code of Civil Procedure was proclaimed (Cité de Trois-Rivières v. Brière, [1974] C.A. 82; Corporation municipale de St-Zéphirin de Courval, C.A. No. 09-000477-74, February 10, 1978);

Articles 33, 834, 846, 847 and 848 read as follows:

33. Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature of Quebec, and bodies politic and corporate within the Province are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

834. The recourses provided in this Title can only be exercised with the previous authorization of a judge of the Superior Court, obtained upon a motion setting forth the facts justifying the recourse; the allegations of the motion must be supported by an affidavit.

846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already altered by such court, in the following cases:

…

2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;

…

847. The motion seeking authorization to exercise the recourse provided in this chapter must be served upon the judge or functionary who was seized of the case, and

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upon the parties, with a notice of the date and place of presentation.

The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought.

848. The writ introductive of suit is addressed to the opposite party and to the court, judge or functionary, and it orders the suspension of all proceedings and the transmission to the office of the Superior Court, within the delay fixed, of the record in the case and all the exhibits connected therewith.

The first case mentioned in the last quoted paragraph of the judgment of the Court of Appeal rests primarily on the earlier judgment of the same Court in Séminaire St-François de Cap‑Rouge v. Yaccarini[2]; Turgeon J.A. quotes the final paragraph of the majority reasons by Casey J.A., embodying the grounds of the decision:

At one time one might have argued that the question of procedure—the use of the direct action rather than evocation—is a matter of little importance. Today that position is untenable. The introduction of the control provided by art. 847 C.P. coupled with art. 850 C.P. and sec. 122 of the Labour Code, clearly discloses the intention that matters that necessarily obstruct the administrative process should be disposed of as speedily as possible. This leaves no choice. Before one may ask the Superior Court to intervene one must convince a judge of that court that “the facts alleged justify the conclusions sought”. Since this permission was neither obtained nor sought the case comes within art. 165 C.P. and, in my opinion, the action was properly dismissed.

With respect to art. 195, I beg to quote it in full without more:

165. The defendant may ask for dismissal of the action if:

1. There is lis pendens or res judicata;

2. One of the parties is incapable or has not the necessary capacity;

3. The plaintiff has clearly no interest in the suit;

4. The suit is unfounded in law, even if the facts alleged are true.

Obstruction of the administrative process is not involved in the case at bar: appellants’ application

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in no way seeks to prevent the authorities from keeping on deciding applications for social aid in accordance with the regulations and making payments accordingly.

In my view Rivard J., dissenting in Yaccarini (at p. 718), correctly said, after quoting from the judgment of this Court in Three Rivers Boatman Ltd. v. Canada Labour Relations Board[3];

[TRANSLATION] It must be held, therefore, that art. 33 C.C.P. did not create this superintending and reforming jurisdiction.

By providing that the superintending and reforming power shall be exercised in such manner and form as provided by law and laying down in Art. 834 of the same Code the procedure for the exercise of some extraordinary remedies, did the legislator close the door to the ordinary remedy of the action in nullity? I am unable to share this opinion.

It should be noted that art. 846 C.C.P is in permissive, not in mandatory, form. This was accepted by the Court of Appeal in a unanimous decision affirmed in this Court, City of Chicoutimi v. Séminaire de Chicoutimi[4], Montgomery J.A. said, (at p. 415):

… Even if evocation should be an appropriate remedy, this would not in itself establish that there is no other remedy; I find nothing in the code to suggest that such an exception may not be taken before the Provincial Court.

Of course, the litigant who needs a stay of proceedings or who wishes to paralyze the administrative process, is in a way obliged to resort to evocation under art. 846. However, if he is merely seeking to have a regulatory provision declared void, how is he prevented from proceeding by action in accordance with the general rule:

110. Unless otherwise provided, every action is instituted by a writ of summons in the name of the Sovereign.

Assuming that, without resorting to evocation, plaintiffs are entitled to no more than their conclusions in nullity, on what basis are they denied these

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conclusions because other conclusions have been joined thereto?

In my view, the theory of nullity for some formal defects, elaborated in the cases on which the decisions in question are based, is contrary to the principles of the present Code of Civil Procedure. It is quite true that art. 834 prohibits evocation and certain other remedies without prior authorization, but nowhere does the Code prohibit a declaratory action or a motion for a declaratory judgment in respect of claims that may be urged by an extraordinary remedy contemplated in this article. The Code has abolished the exceptions to the form which at least involved the rule that irregularities were waived by failure to take advantage of them within very short time limits (art. 176 of the 1897 Code). Under the cases on which the decisions now in question are based, however, any error in the choice of remedy results in a nullity which can be pleaded at any time, even on appeal. In the instant cases it does not appear that the point on which the decisions are based was in any way raised at first instance. In Duquel v. The Town of Ste-Agathe[5], a unanimous decision of this Court held on the question of procedure (at p. 1142) that:

(1) in order to decide whether a case can be dealt with by a motion for declaratory judgment, the Court is not required to determine if the motion is preventive or curative, but merely whether it comes within the terms of art. 453;

(2) as the distinction is not a rule of public order, any party who wishes to complain that an action should have been instituted must do so when the motion is presented, and he shall be considered to have waived this objection if he files a contestation in writing.

In my view, the same general principles must be applied when the question is whether the appropriate procedure is an ordinary action or an application for evocation. The only consequence of resorting to an action or to a motion for a declaration rather than to an application for evocation in a case coming within art. 846 C.C.P., is that the plaintiff does not obtain a staying order. Nothing

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in the Code provides for any other consequence; on the contrary, art. 2 states:

2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a proceeding if the defect has not been remedied when it was possible to do so. …

In one of the first pages of the report of the Commissioners who prepared the present Code, which was adopted without any major amendment, one reads concerning the general principles of this Code:

… Of course no one can deny that certain formalities are necessary in order to avoid leaving the administration of justice to the whim of pleaders or to the arbitrary ruling of the judge, to ensure the frank discussion of the issue in dispute, without the danger of being taken by surprise by one’s adversary. But these formalities must be reduced to those necessary for achieving the purposes which are their justification. Otherwise they may even jeopardize the very rights which the procedure is designed to safeguard, and risk making the road to justice a veritable labyrinth.

The same report states with regard to art. 33:

This provision is designed to do away with the restrictions which have been applied to the fundamental rule of Article 50 C.P. It seems more than ever necessary to give back to the Superior Court its traditional superintending and reforming power.

Article 846 cannot, therefore, be viewed as a provision creating the remedy in question which might be subject to the English rule that an enactment which creates a remedy that does not exist at common law, and also specifies a procedure for its exercise, excludes by implication any other procedure or jurisdiction (see C.N.R. v. Trudeau[6]). The superintending and reforming power over administrative bodies is, on the contrary, inherent in the Superior Court. Before the Federal Court Act provided otherwise, it applied to federal administrative bodies like any others, as this Court held in Three Rivers Boatman Ltd. v. Canada Labour Relations Board (supra).

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Moreover, even assuming the authorization of a judge of the Superior Court to be mandatory for the issuance of a writ, it is surely apparent that the absence of authorization was necessarily covered by the judgments maintaining the two actions. The trial judge unquestionaly had the power to authorize the writs to be issued. His judgments show that in his opinion the facts alleged justified the conclusions sought, since he maintained them. It cannot be suggested that he should have handed down in each case two judgments, one authorizing the writ to be issued and the other maintaining the action, or that there was an absolute nullity, so that it would have been necessary to start the proceedings over again and the judge had no power to validate them.

Except in the case of a nullity enacted by a specific statutory provision allowing the courts no power to remedy it, the Supreme Court of Canada never hesitates to intervene to reverse a decision which dismisses an action on the merits for a formal defect. To show how this is regularly done in cases from the common law provinces as well as from Quebec, the following examples may be cited:

Basarsky v. Quinlan[7];

Ladouceur v. Howarth[8];

Witco Chemical v. Oakville[9];

Leesona v. Consolidated Textile Mills et al.[10];

Pont-Viau v. Gauthier Mfg.[11]

For these reasons the Chief Justice, after hearing the parties, said for the Court:

We are all of the opinion that appellants followed an acceptable procedure. The appeals are therefore allowed with costs for reasons which will be delivered later on.

Appellants then asked the Court to decide the cases on the merits, but in view of the nature of the

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issues the unanimous conclusion, expressed by the Chief Justice, was that both cases should be returned to the Court of Appeal for decision on the merits.

Appeals allowed with costs.

Solicitor for the appellants: André Morissette, Sherbrooke, Qué.

[1] The judgment in Vachon is published in [1977] C.S. 443.

[2] [1973] C.A. 713.

[3] [1969] S.C.R. 607.

[4] [1970] C.A. 413, aff’d. [1973] S.C.R. 681.

[5] [1977] 2 S.C.R. 1132.

[6] [1962] S.C.R. 398.

[7] [1972] S.C.R. 380.

[8] [1974] S.C.R. 1111.

[9] [1975] 1 S.C.R. 273.

[10] [1978] 2 S.C.R. 2.

[11] [1978] 2 S.C.R. 516.